In U.S. v. Burge, No. 04-13468 (May 2, 2005), the Court (Edmondson, Dubina, Hull) affirmed the constitutionality of a sentence imposed under the Armed Career Criminal Act.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
Tuesday, May 03, 2005
Monday, May 02, 2005
Pace: Artuz distinguished
In Pace v. DiGuglielmo, No. 03-9627 (April 27, 2005), the Supreme Court held that a state post-conviction motion is not "properly filed," within the meaning of the tolling provision of the AEDPA’s statute of limitations, when that motion was denied by the state courts for being untimely under state law. The Court distinguished Artuz v. Bennett, 531 U.S. 4 (2000), which had found that a state petition was "properly filed." The Court pointed out that Artuz involved a state dismissal for procedural default, not, with Pace, a state dismissal for untimeliness. An petition dismissed as untimely cannot be considered "properly filed," the Court concluded.
Martinez: Booker plain error
In U.S. v. Martinez, No. 05-10382 (April 29, 2005), the Court held that "plain error" infected a sentence under Booker, where the district court expressed an "unequivocal desire" to impose a setnence lower than the minimum sentence mandated by the Sentencing Guidelines. The Court vacated the sentence and remanded for resentencing.
Martinez’ pre-Booker Guideline sentence, as a career offender, was 262-327 months. During the sentencing, the district court inquired if there was "any way we can make [the sentence] shorter," and expressed regret that "unfortunately" her power to impose a lower sentence was limited by the Guidelines. The Court noted that the court erred, in light of the intervening Booker decision, in considering the Guidelines to be mandatory, and held that the circumstances constituted "plain error."
Martinez’ pre-Booker Guideline sentence, as a career offender, was 262-327 months. During the sentencing, the district court inquired if there was "any way we can make [the sentence] shorter," and expressed regret that "unfortunately" her power to impose a lower sentence was limited by the Guidelines. The Court noted that the court erred, in light of the intervening Booker decision, in considering the Guidelines to be mandatory, and held that the circumstances constituted "plain error."
Thursday, April 28, 2005
Small
In Small v. U.S., No. 03-750 (April 16, 2005), the Court held that the phrase "convicted in any court" contained in the prohibition in 18 U.S.C. § 922(g)(1) on firearm possession by any person convicted in any court of a crime punishable by imprisonment exceeding one year encompassed only domestic, not foreign, convictions.
The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.
The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.
Paquantino
In Pasquantino v. U.S., No. 03-725 (April 26, 2005), the Court held that a plot to defraud the Canadian government of tax revenue violates the federal wire fraud statute, 18 U.S.C. § 1343. The plot involved the smuggling of large quantities of liquor from the United States to evade Canada's heavy alcohol import taxes..
The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.
The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.
Monday, April 25, 2005
Verbitskaya: Hobbs Act convictions affirmed
In U.S. v. Verbitskaya, No. 03-11870 (April 21, 2005), the Court affirmed convictions and sentences for defendants convicted of extortion in violation of the Hobbs Act.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant’s challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant’s connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel’s absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant’s challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant’s connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel’s absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.
Raad: Alien smuggling mandatory minimum not cruel & unusual
In U.S. v. Raad, No. 03-15300 (April 21, 2005), the Court rejected a challenge to the imposition of a five-year mandatory minimum sentence for smuggling three or more aliens in violation of 8 U.S.C. § 1324(B)(2)(B)(iii). The Court rejected the argument that this punishmnent was "cruel and unusual" punishment under the Eighth Amendment. The Court noted that it had previously upheld mandatory minimums, and found that the five-year punishment was not "cruel and unusual" simply because it fell at the high end of the Guideline range.
Friday, April 22, 2005
Abreu: Fingerprint expert ok
In U.S. v. Abreu, No. 04-14376 (April 20, 2005), the Court affirmed a conviction for marihuana distribution, rejecting the defendant’s argument that the government’s fingerprint expert failed to satisfy the requirements of FRE 702.
The Court noted that other Circuits have found that fingerprint evidence is sufficiently reliable and meets the standards of FRE 702. Moreover, in view of the "broad latitude" of district courts in admitting evidence, the district court did not err in relying on the "general acceptance" of such evidence.
The Court noted that other Circuits have found that fingerprint evidence is sufficiently reliable and meets the standards of FRE 702. Moreover, in view of the "broad latitude" of district courts in admitting evidence, the district court did not err in relying on the "general acceptance" of such evidence.
Thursday, April 21, 2005
Rodriguez: rehearing en banc denied
In U.S. v. Rodriguez, No. 03-00217 (April 19, 2005) (no plain error under Booker where the defendant could not show he would get a lower sentence at resentencing), the 11th Circuit denied rehearing en banc. Judges Tjoflat and Barkett dissented at length from the denial of rehearing en banc, and Judge Carnes wrote a long opinion concurring in the result.
Monday, April 18, 2005
Day: Vulnerable victim enhancement
In U.S. v. Timothy Day, No. 04-10551 (April 15, 2005), the Court (Marcus, Fay & Siler b.d.) affirmed the convictions and sentences of defendants convicted of mail fraud.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.
Friday, April 15, 2005
Custer revisited
In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court (Tjoflat, Dubina, Marcus), on a petition for panel rehearing, the Court vacated Custer’s sentence and remanded for resentencing consistent with the Supreme Court’s opinion in Booker. The Court noted that its prior decision rejecting Custer’s challenge to his sentence came down shortly before the Supreme Court decided Booker. The Court noted that Custer had raised Booker-type challenges to his sentence in his initial brief, had preserved the issue in the district court, and not waived the issue in his plea agreement.
Thursday, April 07, 2005
Orduno-Mireles: Almendarez-Torres still good law
In U.S. v. Orduno-Mireles, No. 04-12630 (April 6, 2005), the Court (Birch, Barkett, Marcus) rejected post-Booker challenges to a defendant’s 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A), after a conviction for illegal re-entry after being deported subsequent to an aggravated felony conviction.
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]
Paz: Booker error not Harmless
In U.S. v. Paz, 2005 WL 757876 (Apr. 5, 2005), the Court (Tjoflat, Anderson, Pryor), in its first post-Booker application of harmless error review of a sentence, vacated a sentence and remanded for resentencing because the district court at sentencing stated that, were the Guidelines not mandatory, it would impose a lesser sentence.
Tuesday, April 05, 2005
Johnson AEDPA requires due diligence
In Johnson v. U.S., No. 03-9865 (Apr. 4, 2005), the Supreme Court held that, in a case of a prisoner’s collateral attack on a federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated, the one-year statute of limitations of 28 U.S.C. § 2255 ¶ 6 begins to run when a prisoner receives notice of the order vacating the conviction, provided that the prisoner sought the vacatur with due diligence in state court after entry of the federal judgment with the enhanced sentence.
In so ruling, the Supreme Court rejected the Eleventh Circuit’s test, which had dismissed the prisoner’s claim on the ground that that the state court order did not start the limitations period. However, the Supreme Court ultimutely upheld the decision of the Eleventh Circuit, finding that Johnson had not acted with due diligence in seeking vacatur of his prior conviction, and therefore finding that his § 2255 petition was time-barred.
In so ruling, the Supreme Court rejected the Eleventh Circuit’s test, which had dismissed the prisoner’s claim on the ground that that the state court order did not start the limitations period. However, the Supreme Court ultimutely upheld the decision of the Eleventh Circuit, finding that Johnson had not acted with due diligence in seeking vacatur of his prior conviction, and therefore finding that his § 2255 petition was time-barred.
Friday, March 25, 2005
Byrd: Defendant can't testify after govt rebuttal
In U.S. v. Byrd, No. 04-12188 (March 25, 2005), the Court (Carnes, Hull, Wilson), affirmed convictions for armed bank robbery, use of a firearm during the commission of a bank robbery, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 2113(a), (d), 924(c) & 922(g).
The Court held that the trial court did not abuse its discretion when it refused to allow the defendant to testify after the close of the government’s rebuttal case, and the defendant voluntarily waived his right to testify in his defense (but later changed his mind and wanted to testify. The Court agreed with other Circuits to have considered the issue, and noted that "reasonable rules" must govern trial proceedings. The Court recognized that Byrd asked to testify before closing arguments, and that his testimony was of "inherent significance." However, allowing Byrd to testify could have prejudiced the prosecution, because he should not have been able to take the stand and "say whatever he wanted to without much fear of anybody being around to rebut it." Moreover, having heard the rebuttal witnesses, Byrd could manufacture explanations, "smoothing over to some extent the discrepancies between the testimony of his alibi witnesses and the government’s rebuttal witness."
Finally, the only explanation Byrd gave was that he changed his mind. This was not a valid reason for not testifying at the proper time.
The Court summarily rejected Byrd’s challenge to the sufficiency of the evidence, noting, among other things: "The robber took $4,680 from the bank, and the police found $4,650 in a box under Byrd’s bed."
The Court held that the trial court did not abuse its discretion when it refused to allow the defendant to testify after the close of the government’s rebuttal case, and the defendant voluntarily waived his right to testify in his defense (but later changed his mind and wanted to testify. The Court agreed with other Circuits to have considered the issue, and noted that "reasonable rules" must govern trial proceedings. The Court recognized that Byrd asked to testify before closing arguments, and that his testimony was of "inherent significance." However, allowing Byrd to testify could have prejudiced the prosecution, because he should not have been able to take the stand and "say whatever he wanted to without much fear of anybody being around to rebut it." Moreover, having heard the rebuttal witnesses, Byrd could manufacture explanations, "smoothing over to some extent the discrepancies between the testimony of his alibi witnesses and the government’s rebuttal witness."
Finally, the only explanation Byrd gave was that he changed his mind. This was not a valid reason for not testifying at the proper time.
The Court summarily rejected Byrd’s challenge to the sufficiency of the evidence, noting, among other things: "The robber took $4,680 from the bank, and the police found $4,650 in a box under Byrd’s bed."
Thursday, March 24, 2005
Peters: Sale of firearm to convicted felon
In U.S. v. Peters, No. 04-11658 (March 24, 2005), the Court (Marcus, Fay, Siler b.d.) affirmed a convcition for sale of a firearm and ammunition to a convicted felon, in violation of 18 U.S.C. § 922(d)(1).
The Court rejected a sufficiency of the evidence challenge. The Court found that, based on the exchanges between the seller and a confidential informant, the seller was told by the buyer of the firearms that the buyer was a convicted felon. This constituted sufficient evidence from which a jury could find that Peters had reasonable cause to believe that his buyer had a prior felony conviction.
The Court also rejected a Commerce Clause challenge to the federal statute which criminalizes the sale of a firearm to a convicted felon. The Court noted that the sale of a firearm is "economic activity," and therefore fell within Congress’ Commerce Clause power. Further, just as the Court had held that a felon’s possession of a firearm can be made a federal crime, likewise the sale of a firearm to a convicted felon can be a federal crime.
The Court rejected a sufficiency of the evidence challenge. The Court found that, based on the exchanges between the seller and a confidential informant, the seller was told by the buyer of the firearms that the buyer was a convicted felon. This constituted sufficient evidence from which a jury could find that Peters had reasonable cause to believe that his buyer had a prior felony conviction.
The Court also rejected a Commerce Clause challenge to the federal statute which criminalizes the sale of a firearm to a convicted felon. The Court noted that the sale of a firearm is "economic activity," and therefore fell within Congress’ Commerce Clause power. Further, just as the Court had held that a felon’s possession of a firearm can be made a federal crime, likewise the sale of a firearm to a convicted felon can be a federal crime.
Adams: 10-year window of prior criminal conviction
In U.S. v. Adams, No. 03-15111 (March 23, 2005), the Court (Marcus, Fay, Siler b.d.) held that a prior conviction was within the 10-year window of USSG § 4A1.2(e)(2) for purposes of assessing a criminal history point, even though the prior conviction was based on an offense which occurred more than 10 years before the commencement of the offense of conviction. The Court noted that the Guidelines provide that the 10 year window goes back to the date of sentencing, not the date of the offense. Further, it did not matter that the sentencing was postponed because of a court backlog. The plain language of the Guideline did not recognize such an exception.
Lyons: possessing 4 bullets gets 235 month sentence
In U.S. v. Lyons, No. 03-15073 (March 23, 2005), the Court affirmed the conviction and sentence of a defendant convicted of possession of four Remington .22 caliber bullets, in violation of 18 U.S.C. sections §§ 922(g)(1) and 924(e), and sentenced to 235 months’ incarceration as an armed career offender pursuant to USSG § 4B1.4(b).
The Court rejected the argument that there was no probable cause for the search of Lyons which uncovered the four bullets, because he searched for his "disorderly conduct," and was ultimately acquitted of this charge. The Court noted that the acquittal does not affect the inquiry into whether the police had probable cause to arrest. Here, under the circumstances – Lyons’ unruly conduct while the police were trying to control an unruly Ft. Myers crowd – the police had probable cause to arrest him for disorderly conduct in violation of Fla. Stat. § 877.03.
The Court also rejected the argument that Lyons should have been to introduce evidence of his acquittal for disorderly conduct in order to show the bias of the police officer who testified against him at the federal trial on ammunition possession. The Court found that the trial court did not abuse its discretion in holding this evidence "irrelevant."
Finally, the Court rejected the claim that the 235-month sentence violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court noted that Lyons’ recidivism justified his classification as an armed career criminal, and the corresponding level VI criminal history category and heightened offense level. "The length of his sentence was the result of his extensive criminal history and it is well-settled that a longer sentence may be imposed on a recidivist, based on his criminal history, even if the offense of conviction is relatively minor in nature."
The Court rejected the argument that there was no probable cause for the search of Lyons which uncovered the four bullets, because he searched for his "disorderly conduct," and was ultimately acquitted of this charge. The Court noted that the acquittal does not affect the inquiry into whether the police had probable cause to arrest. Here, under the circumstances – Lyons’ unruly conduct while the police were trying to control an unruly Ft. Myers crowd – the police had probable cause to arrest him for disorderly conduct in violation of Fla. Stat. § 877.03.
The Court also rejected the argument that Lyons should have been to introduce evidence of his acquittal for disorderly conduct in order to show the bias of the police officer who testified against him at the federal trial on ammunition possession. The Court found that the trial court did not abuse its discretion in holding this evidence "irrelevant."
Finally, the Court rejected the claim that the 235-month sentence violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court noted that Lyons’ recidivism justified his classification as an armed career criminal, and the corresponding level VI criminal history category and heightened offense level. "The length of his sentence was the result of his extensive criminal history and it is well-settled that a longer sentence may be imposed on a recidivist, based on his criminal history, even if the offense of conviction is relatively minor in nature."
Dowling: Booker waiver -- and no plain error
In U.S. v. Dowling, No. 04-10464 (March 23, 2005), the Court (Anderson, Pryor & Hill) affirmed a conviction and 240-month sentence for conspiracy to distribute cocaine.
The Court rejected a sufficiency of the evidence challenge, noting that there was "more than sufficient evidence" to support the jury’s verdict.
Turning to the challenge to the sentence, the Court found that no Booker error was preserved in the district court, because counsel did not preserve a "constitutional objection." The Court noted that counsel had noted that the jury’s special verdict only convicted the defendant of a 500 gram cocaine conspiracy. Counsel objected at sentencing that the jury verdict "under the unique facts and circumstances of this case, must be respected." The Court noted that the "unique facts and circumstances" had to do with the defendant’s statute of limitations defense, and that there was no reference to the Sixth Amendment, or citation to Apprendi, or challenge to the judge’s fact-finding authority. The Court noted that Fed. R. Crim. P. 51(b) requires a party to inform the judge not only of the action it wishes but the "grounds therefor."
Reviewing the issue for "plain error," the Court noted that "nothing in the record indicates that the judge might have imposed a different sentence in the new advisory regime." The Court recognized that the district judge expressed "some concern and an intellectual difficulty" with applying one Guideline enhancement – a cross-reference enhancement for murder – but pointed out that this enhancement made no difference in Dowling’s case, because the drug quantity and other enhancements would already have justified a sentence above the 120-month statutory maximum that was imposed. [Note : In Dowling, even though defense counsel at sentencing objected that a longer sentence shouldn’t be imposed because the jury’s special verdict on drug quantity "must be respected," the 11th Circuit found that the error in imposing sentence above the special verdict quantity wasn’t preserved, because counsel didn’t say something like "based on the Sixth Amendment," or "based on Apprendi." Yet, at the time of sentencing (pre-Booker, indeed, pre-Blakely) neither the Sixth Amendment nor Apprendi applied to Guideline enhancements. So the district judge would have been powerless to agree with a "Sixth Amendment" or "Apprendi" objection, even if it had been raised with the greatest clarity. One wonders if Dowling isn’t elevating form over substance. ]
The Court rejected a sufficiency of the evidence challenge, noting that there was "more than sufficient evidence" to support the jury’s verdict.
Turning to the challenge to the sentence, the Court found that no Booker error was preserved in the district court, because counsel did not preserve a "constitutional objection." The Court noted that counsel had noted that the jury’s special verdict only convicted the defendant of a 500 gram cocaine conspiracy. Counsel objected at sentencing that the jury verdict "under the unique facts and circumstances of this case, must be respected." The Court noted that the "unique facts and circumstances" had to do with the defendant’s statute of limitations defense, and that there was no reference to the Sixth Amendment, or citation to Apprendi, or challenge to the judge’s fact-finding authority. The Court noted that Fed. R. Crim. P. 51(b) requires a party to inform the judge not only of the action it wishes but the "grounds therefor."
Reviewing the issue for "plain error," the Court noted that "nothing in the record indicates that the judge might have imposed a different sentence in the new advisory regime." The Court recognized that the district judge expressed "some concern and an intellectual difficulty" with applying one Guideline enhancement – a cross-reference enhancement for murder – but pointed out that this enhancement made no difference in Dowling’s case, because the drug quantity and other enhancements would already have justified a sentence above the 120-month statutory maximum that was imposed. [Note : In Dowling, even though defense counsel at sentencing objected that a longer sentence shouldn’t be imposed because the jury’s special verdict on drug quantity "must be respected," the 11th Circuit found that the error in imposing sentence above the special verdict quantity wasn’t preserved, because counsel didn’t say something like "based on the Sixth Amendment," or "based on Apprendi." Yet, at the time of sentencing (pre-Booker, indeed, pre-Blakely) neither the Sixth Amendment nor Apprendi applied to Guideline enhancements. So the district judge would have been powerless to agree with a "Sixth Amendment" or "Apprendi" objection, even if it had been raised with the greatest clarity. One wonders if Dowling isn’t elevating form over substance. ]
Wednesday, March 23, 2005
Mesa: Handcuff detention ok
In Muehler v. Mena, No. 03-1423 (March 22, 2005), the Supreme Court held that the detention in handcuffs of an occupant of premises which were being search for weapons and evidence of gang membership did not violate the Fourth Amendment and therefore could not give rise to a suit under 42 U.S.C. § 1983.
The Court noted that under Michigan v. Summers, police has the authority to detain occupants of premises while a proper search is being conducted. The use of force in the form of handcuffs to detain Mena was reasonable here because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
The Court also found no Fourth Amendment violation in the questioning of Mesa about her immigration status. Mere police questioning does not constitute a "seizure."
The Court remanded the case for consideration of Mesa’s argument that the length of her detention violated the Fourth Amendment.
The Court noted that under Michigan v. Summers, police has the authority to detain occupants of premises while a proper search is being conducted. The use of force in the form of handcuffs to detain Mena was reasonable here because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
The Court also found no Fourth Amendment violation in the questioning of Mesa about her immigration status. Mere police questioning does not constitute a "seizure."
The Court remanded the case for consideration of Mesa’s argument that the length of her detention violated the Fourth Amendment.
Brown v. Payton
In Brown v. Payton, No. 03-1029 (March 22, 2005), the Supreme Court held that, under the deferential AEDPA standard for federal review of state decisions, the California Supreme Court did not render a decision contrary to, or unreasonably applying, federal law, when it declined to find a constitutional violation in the prosecutor’s incorrect statement in closing argument in the death phase of the trial that a jury could not take account in mitigation of anything that happened after the crime, i.e, the defendant’s post-offense rehabilitation. The trial court gave a standard § (k) instruction that "any other" extenuating factor could be considered.
The Court noted that in Boyde v. California, it had upheld the § k instruction, and that the California Supreme Court had relied on Boyde in affirming the defendant’s sentence. The found that the California Supreme Court had applied Boyde to a different set of facts and could not therefore, under AEDPA, be found to be contrary to established federal law.
The Court noted that in Boyde v. California, it had upheld the § k instruction, and that the California Supreme Court had relied on Boyde in affirming the defendant’s sentence. The found that the California Supreme Court had applied Boyde to a different set of facts and could not therefore, under AEDPA, be found to be contrary to established federal law.
Garcia: Convictions affirmed; somes sentences vacated
In U.S. v. Garcia, No. 03-10350 (March 22, 2005), the Court (Edmondson, Wilson, Restani b.d.) affirmed convictions for conspiracy to manufacture marijuana plants, and for maintaining a place for the purpose of manufacturing marijuana, in violation of 21 U.S.C. §§ 846 & 856(a)(1).
The Court rejected sufficiency of the evidence challenges. The Court noted that credibility determinations regarding the testifying co-conspirators were the exclusive province of the jury. The Court further found other evidence sufficient evidence.
The Court also rejected one defendant’s argument that evidence should not have been admitted because it pertained to the other defendants, not to him. The Court noted that the evidence was clearly relevant to the co-defendants, that the jury was instructed to consider each charge separately, and that the jury was able to do so because it acquitted on some counts.
The Court further rejected the argument that prejudicial argument of co-counsel during closing should have been the basis for a mistrial. The Court noted that the jury was instructed that the arguments of counsel were not evidence. Further, considering all the evidence, the comments did not prevent the jury from making a reliable judgment.
The Court also rejected the argument that an "accessory after the fact" jury instruction should have been given, because one defendant’s conduct consisted only in dismantling a grow house. The Court noted this did not prejudice the defense, which was free to argue, and did argue, that dismantling a grow house does not prove manufacture of marijuana or maintenance of a grow house.
The Court noted the district court refused to consider granting a defendant a "safety-valve’ sentence reduction below the mandatory minimum solely because the defendant had not been completely debriefed prior to sentencing, and even though the defendant asked for a continuance of the sentencing in order to be able to be debriefed and qualify for safety valve. The Court rejected the government’s argument that U.S. v. Brownlee, 204 F.3d 1302 (11th Cir. 2000) established a jurisdictional rule that precludes consideration of safety-valve if the proffer is presented after the commencement of the sentencing hearing. The Court found the language in Brownlee to be dicta. Further, the defendant’s failure to be fully debriefed "was due to a misunderstanding." In these circumstances, the district court had discretion to continue the sentencing to allow a debriefing, and the case was remanded for the district court to consider the safety valve request.
Finally, the Court recognized that the sentencing enhancement based on the number of marijuana plants violated Booker, because the jury specifically found in a special interrogatory verdict that a defendant was not responsible for more than 100 plants, but the judge at sentencing nonetheless fond this number by a preponderance of the evidence. This sentence was therefore vacated and remanded for resentencing.
The Court rejected sufficiency of the evidence challenges. The Court noted that credibility determinations regarding the testifying co-conspirators were the exclusive province of the jury. The Court further found other evidence sufficient evidence.
The Court also rejected one defendant’s argument that evidence should not have been admitted because it pertained to the other defendants, not to him. The Court noted that the evidence was clearly relevant to the co-defendants, that the jury was instructed to consider each charge separately, and that the jury was able to do so because it acquitted on some counts.
The Court further rejected the argument that prejudicial argument of co-counsel during closing should have been the basis for a mistrial. The Court noted that the jury was instructed that the arguments of counsel were not evidence. Further, considering all the evidence, the comments did not prevent the jury from making a reliable judgment.
The Court also rejected the argument that an "accessory after the fact" jury instruction should have been given, because one defendant’s conduct consisted only in dismantling a grow house. The Court noted this did not prejudice the defense, which was free to argue, and did argue, that dismantling a grow house does not prove manufacture of marijuana or maintenance of a grow house.
The Court noted the district court refused to consider granting a defendant a "safety-valve’ sentence reduction below the mandatory minimum solely because the defendant had not been completely debriefed prior to sentencing, and even though the defendant asked for a continuance of the sentencing in order to be able to be debriefed and qualify for safety valve. The Court rejected the government’s argument that U.S. v. Brownlee, 204 F.3d 1302 (11th Cir. 2000) established a jurisdictional rule that precludes consideration of safety-valve if the proffer is presented after the commencement of the sentencing hearing. The Court found the language in Brownlee to be dicta. Further, the defendant’s failure to be fully debriefed "was due to a misunderstanding." In these circumstances, the district court had discretion to continue the sentencing to allow a debriefing, and the case was remanded for the district court to consider the safety valve request.
Finally, the Court recognized that the sentencing enhancement based on the number of marijuana plants violated Booker, because the jury specifically found in a special interrogatory verdict that a defendant was not responsible for more than 100 plants, but the judge at sentencing nonetheless fond this number by a preponderance of the evidence. This sentence was therefore vacated and remanded for resentencing.
Smith: Plain Maxwell Commerce Clause Error
In U.S. v. Smith, No. 03-13639 (March 18, 2005), the Court (Tjoflat, Roney, Hill) reversed the conviction of a defendant convicted of producing child pornography, and possessing child pornography, in violation of 18 U.S.C. §§ 2251(a) & 2252A(a)(5)(B) on the ground that, as applied, the statutes exceeded Congress’ Commerce Clause power.
The Court noted that the only connection to interstate commerce was the fact that the paper on which the photos were printed was received from out of state. Citing U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (vacating child pornography conviction where the only interstate commerce nexus was the fact that the disks on which the images were stored had traveled, when blank, in interstate commerce), the Court held that the defendant’s conviction was "plain error."
The Court recognized that, notwithstanding Maxwell, the defendant would have waived the Commerce Clause issue if he had failed to raise it in his initial brief, under U.S. v. Levy, but, liberally construing an initial brief which never mentioned Commerce Clause caselaw but made a Commerce Clause argument, the Court held that the issue was not waived. Plain error applied because the issue was waived in the district court, because trial counsel merely argued that the statute should not be interpreted to extend to Smith’s conduct, not that the statute was unconstitutional as applied to Smith’s conduct.
Applying the Maxwell Commerce Clause analysis, the Court found that there was nothing "commercial or economic" about Smith’s conduct of taking pornographic photos of minors, an activity the Court found distinct from the wheat production at issue in Wiockard v. Filburn, 317 U.S. 111 (1942). The Court rejected the argument that the statute’s "jurisdictional hook" sufficed to satisfy the Commerce Clause, noting that the hook, which required a showing that materials had been shipped in interstate commerce, encompassed every case imaginable.
Applying "plain error" analysis, the Court found that the error in convicting Smith met all four of the "plain error" criteria, noting that it would harm the public reputation of the criminal justice system to brush aside the limits the Constitution places on the Federal Government.
The Court noted that the only connection to interstate commerce was the fact that the paper on which the photos were printed was received from out of state. Citing U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (vacating child pornography conviction where the only interstate commerce nexus was the fact that the disks on which the images were stored had traveled, when blank, in interstate commerce), the Court held that the defendant’s conviction was "plain error."
The Court recognized that, notwithstanding Maxwell, the defendant would have waived the Commerce Clause issue if he had failed to raise it in his initial brief, under U.S. v. Levy, but, liberally construing an initial brief which never mentioned Commerce Clause caselaw but made a Commerce Clause argument, the Court held that the issue was not waived. Plain error applied because the issue was waived in the district court, because trial counsel merely argued that the statute should not be interpreted to extend to Smith’s conduct, not that the statute was unconstitutional as applied to Smith’s conduct.
Applying the Maxwell Commerce Clause analysis, the Court found that there was nothing "commercial or economic" about Smith’s conduct of taking pornographic photos of minors, an activity the Court found distinct from the wheat production at issue in Wiockard v. Filburn, 317 U.S. 111 (1942). The Court rejected the argument that the statute’s "jurisdictional hook" sufficed to satisfy the Commerce Clause, noting that the hook, which required a showing that materials had been shipped in interstate commerce, encompassed every case imaginable.
Applying "plain error" analysis, the Court found that the error in convicting Smith met all four of the "plain error" criteria, noting that it would harm the public reputation of the criminal justice system to brush aside the limits the Constitution places on the Federal Government.
Tuesday, March 15, 2005
Diaz habeas petition denied
In Diaz v. Dep’t of Corrections, No. 04-12795 (March 14, 2005), the Court (Edmondson, Marcus, Pryor) denied habeas relief to a Florida inmate sentenced to death for a 1979 murder. The Court rejected a number of claims of ineffective assistance of appellate counsel. As to each claim, the Court noted the deferential AEDPA standard that applied, and concluded that no ineffective assistance occurred because the claim Diaz pressed would clearly have failed if raised on direct appeal in the Florida courts.
The Court also rejected the claim that shackling Diaz during the trial, employing extra security, and ordering that all potential jurors be searched deprived him of a fair trial. The Court noted that Diaz’ violent history warranted the security measures.
The Court also rejected the argument that Diaz’ counsel was ineffective during the sentencing phase, concluding that counsel made an adequate investigation, and made conscious tactical decisions at sentencing.
The Court also rejected the claim that shackling Diaz during the trial, employing extra security, and ordering that all potential jurors be searched deprived him of a fair trial. The Court noted that Diaz’ violent history warranted the security measures.
The Court also rejected the argument that Diaz’ counsel was ineffective during the sentencing phase, concluding that counsel made an adequate investigation, and made conscious tactical decisions at sentencing.
Monday, March 14, 2005
Frye: Booker challenge waived in appeal waiver
In U.S. v. Frye, No. 03-16377 (March 11, 2005), the Court vacated in part its prior published opinion in Frye dated February 10, 2005. The Court deleted the portion of its prior opinion which had rejected Frye’s Blakely challenge to his sentence on the ground that the sentencing court could have inferred the facts supporting the sentence from the facts admitted at Frye’s guilty plea. [Note: As Richard Klugh noted in an earlier email, this portion of the original Frye opinion had become problematic in light of the Supreme Court’s recent indication in Shepherd v. U.S. that a sentencing court does not enjoy unlimited power to draw inferences about the factual basis for a conviction]. In its place, the Court inserted a discussion holding that the defendant’s waiver of his right of appeal encompassed a waiver of his right to challenge his sentence on Booker grounds. This waiver foreclosed Frye’s challenge to his sentence.
Tuesday, March 08, 2005
Lebovitz: Affirming Enhancements for Attempt Sex w/ Minor
In U.S. v. Lebovitz, No. 04-10185 (March 4, 2005), the Court (Anderson, Roney, Carnes) the Court affirmed a 110-month sentence for a defendant convicted of violating 18 U.S.C. § 2423(b) by crossing state lines with the intent to have sex with a minor.
The Court rejected the argument that USSG § 2A3.1 was not the appropriate guideline for setting Lebovitz’ offense level. The Court pointed out that § 2A3.2 expressly states that § 2A3.1 should be applied if the offense involved attempted criminal sex abuse. Here, the defendant had attempted to have sex with a minor by stating his intent to do so in writing, and by crossing state lines with jewelry and condoms to meet with an eleven-year old (no meeting occurred: the defendant was caught in a police sting).
The Court rejected the argument that a four-level enhancement under § 2A3.1(b)(2)(A), for attempted sex with a minor under the age of 12, should not have been imposed because the minor in this case was fictitious. The Court noted that it had upheld convictions based on the low age of the fictitous minor victim, and held that Guideline sentence enhancements could also qualify on this basis. Intent, rather than actual harm, is the relevant basis for the enhancement, the Court explained.
The Court rejected the defendant’s contention that it was impermissible double counting to increase his sentence for possessing ten or more pornographic items and also for use of a computer to obtain the items. The Court noted that the two guidelines serve different purposes: one is aimed at well-established connection between possession of illegal pornographic items and child molesting. The other aims to punish the use of a computer, a device which greatly facilitates the viewing of child pornography. These are two different kinds of harms.
The Court also rejected the argument that it was impermissible double counting to increase the sentence based on possessing 300 to 600 child pornography items when the sentence had already been enhanced for possessing more than 10 items. The Court noted that the enhancement for possessing more than 300 items was adopted after the enhancement for possessing more than 10 items. The Court found no implied repeal of the more than 10 item enhancement when the more than 300 item enhancement was adopted. To the contrary, Congress meant to increase the punishment for possessors of large numbers of images. No double counting therefore occurred.
The Court rejected the argument that USSG § 2A3.1 was not the appropriate guideline for setting Lebovitz’ offense level. The Court pointed out that § 2A3.2 expressly states that § 2A3.1 should be applied if the offense involved attempted criminal sex abuse. Here, the defendant had attempted to have sex with a minor by stating his intent to do so in writing, and by crossing state lines with jewelry and condoms to meet with an eleven-year old (no meeting occurred: the defendant was caught in a police sting).
The Court rejected the argument that a four-level enhancement under § 2A3.1(b)(2)(A), for attempted sex with a minor under the age of 12, should not have been imposed because the minor in this case was fictitious. The Court noted that it had upheld convictions based on the low age of the fictitous minor victim, and held that Guideline sentence enhancements could also qualify on this basis. Intent, rather than actual harm, is the relevant basis for the enhancement, the Court explained.
The Court rejected the defendant’s contention that it was impermissible double counting to increase his sentence for possessing ten or more pornographic items and also for use of a computer to obtain the items. The Court noted that the two guidelines serve different purposes: one is aimed at well-established connection between possession of illegal pornographic items and child molesting. The other aims to punish the use of a computer, a device which greatly facilitates the viewing of child pornography. These are two different kinds of harms.
The Court also rejected the argument that it was impermissible double counting to increase the sentence based on possessing 300 to 600 child pornography items when the sentence had already been enhanced for possessing more than 10 items. The Court noted that the enhancement for possessing more than 300 items was adopted after the enhancement for possessing more than 10 items. The Court found no implied repeal of the more than 10 item enhancement when the more than 300 item enhancement was adopted. To the contrary, Congress meant to increase the punishment for possessors of large numbers of images. No double counting therefore occurred.
Booker issue waived when not raised in initial brief
In U.S. v. Dockery, No. 03-16388 (Mar. 3, 2005), the Court (Birch, Dubina, Marcus), on remand from the United States Supreme Court for further consideration in light of Booker, applying U,S. v. Ardley, 242 F.3d 989 (11th Cir. 2001) held that it need not consider the Booker case because the defendant had failed to raise the issue in his initial brief. The Court therefore reaffirmed its earlier affirmance of the defendant’s sentence.
Wednesday, March 02, 2005
No Booker error when Guideline max was imposed
In U.S. v. Curtis, No. 02-16224 (11th Cir. Feb. 28, 2005), the Court modified a footnote in its prior opinion, 380 F.3d 1308 finding no plain error in an alleged Blakely violation at sentencing. The Court stated that Curtis could not satisfy the third prong of its plain error analysis announced in Rodriguez. The Court noted that Curtis had been sentenced at the high end of the Guideline range. This action was inconsistent with any suggestion that the sentencing judge might have imposed a lower sentence had the Guidelines been advisory.
Monday, February 28, 2005
Double Jeopardy: Smith v. Massachusetts
In Smith v. Massachusetts, No. 03-8661 (Feb. 22, 2005), the Supreme Court held that Double Jeopardy principles barred a trial judge, after granting a motion finding insufficient evidence supported a gun count against a defendant when the prosecution rested its case, to change his mind and reconsider the issue after the defense rested.
The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary factfinder in the case, the trial judge still resolve factual issues when ruling on Rule 29-type motion.
The Court found that the acquittal triggered Double Jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he labors under the mistaken impression that he does not face a risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how co-defendants present their defense. The Court explained: "The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority." The Court noted the dissent’s contention that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but stated: "requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause – even when the acquittal was erroneous."
The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary factfinder in the case, the trial judge still resolve factual issues when ruling on Rule 29-type motion.
The Court found that the acquittal triggered Double Jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he labors under the mistaken impression that he does not face a risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how co-defendants present their defense. The Court explained: "The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority." The Court noted the dissent’s contention that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but stated: "requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause – even when the acquittal was erroneous."
Duncan: No plain error despite acquittal
In U.S. v. Duncan, No. 03-15315 (Feb. 24, 2005), the Court (Anderson, Birch & Land b.d.), vacating its prior published opinion, held that the defendant could not satisfy the "substantial rights" third prong of "plain error" because he could not show that he would have received a lesser sentence but for the Booker error of sentencing him under a mandatory regime. The court also rejected the defendant’s "creative" ex post facto argument.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.
Booker plain error satisfied!
In U.S. v. Shelton, No. 04-12602 (Feb. 25, 2005), the Court (Carnes, Hull, Marcus) concluded that no Sixth Amendmetn Booker violations occurred during sentencing, but remanded for resentencing because the district court erred in sentencing under a mandatory Guidelines regime, and the defendant established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime.
The Court noted that after the defendant pled guilty to crack cocaine trafficking and § 924(c) charges, the sentencing court "expressed its disapproval of the [190-month] sentence." The sentencing court commented that Shelton’s sentence was "very, very severe." The sentencing court noted that "unfortunately" the Guidelines criminal-history calculation took into account each of the defendant’s past charges and do not take into account the fact that the sentences imposed on these charges were short as a result of such factors as the youth of the defendant or the amount of drugs involved. The district court later noted that Congress had taken "a very, very hard stance when it comes to guns and drugs," and most significantly indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
Reviewing the issues for plain error (Shelton raised Booker issue for the first time in his initial brief), the Court found no error in the district court’s reliance on prior convictions to increase the defendant’s sentence, noting that Almendarez-Torres remains good law.
The Court also found no error in the sentencing court’s reliance on drug quantities no alleged in the indictment, pointing out that the defendant admitted to these drug quantities at his plea colloquy, and citing U.S. v. Frye, 2005 WL 315563 (11th Cir. Feb. 10, 2005).
Emphasizing that the defendant timely raised his Booker issues in his initial brief on direct appeal, the Court found error in the reliance on mandatory Guidelines: "Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker." The error is now "plain" in light of Booker. Finally, the error affected the defendant’s substantial rights, because the sentencing court "expressed its view several times that the sentence required by the Guidelines was too severe, and noted that "unfortunately" the criminal history computation overstated the defendant’s criminal background. Further, the court sentenced the defendant to the bottom of the Guidelines range. Thus, the defendant established a "reasonable probability" of a lesser sentence under a non-mandatory system.
The Court concluded that the fourth prong of plain error was also met, because the error seriously affected the fairness integrity or public reputation of judicial proceedings. The Court distinguished U.S. v. Curtis, 380 F.3d 1308 (11th Cir. 2004), which had held that the fourth prong of plain error was not satisfied by a Blakely error, noting that this portion of Curtis was an "alternative ruling," that Curtis had found no "substantial rights" impact (unlike Shelton), and that the Curtis panel had assumed that the error merely involved a Sixth Amendment violation, not the use of a mandatory system, as Booker provided.
The Court noted that after the defendant pled guilty to crack cocaine trafficking and § 924(c) charges, the sentencing court "expressed its disapproval of the [190-month] sentence." The sentencing court commented that Shelton’s sentence was "very, very severe." The sentencing court noted that "unfortunately" the Guidelines criminal-history calculation took into account each of the defendant’s past charges and do not take into account the fact that the sentences imposed on these charges were short as a result of such factors as the youth of the defendant or the amount of drugs involved. The district court later noted that Congress had taken "a very, very hard stance when it comes to guns and drugs," and most significantly indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
Reviewing the issues for plain error (Shelton raised Booker issue for the first time in his initial brief), the Court found no error in the district court’s reliance on prior convictions to increase the defendant’s sentence, noting that Almendarez-Torres remains good law.
The Court also found no error in the sentencing court’s reliance on drug quantities no alleged in the indictment, pointing out that the defendant admitted to these drug quantities at his plea colloquy, and citing U.S. v. Frye, 2005 WL 315563 (11th Cir. Feb. 10, 2005).
Emphasizing that the defendant timely raised his Booker issues in his initial brief on direct appeal, the Court found error in the reliance on mandatory Guidelines: "Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker." The error is now "plain" in light of Booker. Finally, the error affected the defendant’s substantial rights, because the sentencing court "expressed its view several times that the sentence required by the Guidelines was too severe, and noted that "unfortunately" the criminal history computation overstated the defendant’s criminal background. Further, the court sentenced the defendant to the bottom of the Guidelines range. Thus, the defendant established a "reasonable probability" of a lesser sentence under a non-mandatory system.
The Court concluded that the fourth prong of plain error was also met, because the error seriously affected the fairness integrity or public reputation of judicial proceedings. The Court distinguished U.S. v. Curtis, 380 F.3d 1308 (11th Cir. 2004), which had held that the fourth prong of plain error was not satisfied by a Blakely error, noting that this portion of Curtis was an "alternative ruling," that Curtis had found no "substantial rights" impact (unlike Shelton), and that the Curtis panel had assumed that the error merely involved a Sixth Amendment violation, not the use of a mandatory system, as Booker provided.
Thursday, February 17, 2005
Booker not retroactive for 2255
In Varela v. U.S., No. 04-11725 (Feb. 17, 2005), the Court (Birch, Barkett, Hull) held that Blakely v. Washington, and, by extension, Booker, is not retroactive to cases on collateral review pursuant to Teague v. Lane, 489 U.S. 288 (1989).
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
Wednesday, February 16, 2005
922(g) not a crime of violence
In U.S. v. Johnson, No. 04-16502 (Feb. 14, 2005), the Court (Tjoflat, Dubina, Cox) granted the defendant’s interlocutory appeal, holding that a conviction for being a felon-in-possession in violation of 18 U.S.C. § 922(g) does not qualify as a "crime of violence" within the meaning of 18 U.S.C. § 3156(a)(4), and therefore was not a basis (as the district court ruled) for denying release after a guilty plea and pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.
Monday, February 14, 2005
No Booker error when defendant waives appeal
In U.S. v. Grinard-Henry, No. 04-12677 (Feb. 11, 2005), the Court denied a defendant’s Booker-based motion for reconsideration of the Court’s order dismissing his appeal, finding that the defendant had waived his right of appeal as part of his plea agreement.
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
No Booker error when defendant admits facts
In U.S. v. Frye, No. 03-16377 (11th Cir. 2005), the Court found affirmed the conviction and sentence of a defendant who pled guilty to using a firearm in connection with a drug felon offense in violation of 18 U.S.C. § 924(c), attempt to manufacture more than 50 grams of methamphetamine, and manufacture of more than 500 grams of methamphetamine.
The Court rejected the argument that the plea was involuntary because of irreconciliable differences between the defendant and his lawyer, noting that the record of the plea colloquy showed that Frye was not pleading guilty involuntarily.
The Court also rejected the argument that the defendant could not be convicted of violating § 924(c) because he was not convicted of an underlying drug felony offense. The Court joined other circuits which have held that an actual violation of a drug felony statute is not necessary to establish a § 924(c) violation. § 924(c) does not require that a defendant be convicted of, or even charged with, a predicate offense.
Reviewing the factual resume at the plea colloquy, the Court further rejected the argument that the § 924(c) guilty plea was supported by insufficient facts.
Finally, the Court found no Booker violation in the imposition of sentencing enhancements for being an organizer in the conspiracy, or for risk of harm to human life or the environment, based on factors that were neither admitted by him nor proved beyond a reasonable doubt. The Court found that the factual resume submitted to the district court as part of the plea colloquy supported the two enhancements. Frye admitted to the conduct underlying the sentence enhancements. The sentence therefore did not violate Booker.
The Court rejected the argument that the plea was involuntary because of irreconciliable differences between the defendant and his lawyer, noting that the record of the plea colloquy showed that Frye was not pleading guilty involuntarily.
The Court also rejected the argument that the defendant could not be convicted of violating § 924(c) because he was not convicted of an underlying drug felony offense. The Court joined other circuits which have held that an actual violation of a drug felony statute is not necessary to establish a § 924(c) violation. § 924(c) does not require that a defendant be convicted of, or even charged with, a predicate offense.
Reviewing the factual resume at the plea colloquy, the Court further rejected the argument that the § 924(c) guilty plea was supported by insufficient facts.
Finally, the Court found no Booker violation in the imposition of sentencing enhancements for being an organizer in the conspiracy, or for risk of harm to human life or the environment, based on factors that were neither admitted by him nor proved beyond a reasonable doubt. The Court found that the factual resume submitted to the district court as part of the plea colloquy supported the two enhancements. Frye admitted to the conduct underlying the sentence enhancements. The sentence therefore did not violate Booker.
Tuesday, February 08, 2005
Bartering drugs for gun is not "use" of gun
In U.S. v. Montano, No. 03-11950 (Feb. 4, 2005), the Court (Barkett, Hill & Forrester, b.d.) held that bartering drugs to obtain a firearm cannot constitute "use" of a firearm within the meaning of 18 U.S.C. § 924(c). The Court recognized the circuit conflict on this issue. However, the Court found no "active employment" of a firearm when drugs are being used to obtain it, and the firearm is never actually obtained (the defendant bartered with an undercover law enforcement official). The defendant merely passively viewed the firearms, and then never again came into view of them, and never possessed them, either actually or constructively. Moreover, Montano could not, as a matter of law, conspire with government officials in the commission of an unlawful act.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
11th Circuit Booker Plain Error
In U.S. v. Rodriguez, No. 04-12676 (Feb. 4, 2005), the Court (Carnes, Marcus, Fay) upheld a sentence against a Booker challenge on "plain error" review.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
Monday, January 31, 2005
2526 LSD hits; 54 months' imprisonment
In U.S. v. Grant, No. 03-13406 (Jan. 27, 2005), the Court (Carnes, Hull, Hill) held that the weight of LSD, for which the pure LSD weight was 0.1263 grams, and the weight with the water in which it was contained was 103.7 grams (or the equivalent of 2526 dosage units or "hits"), must, for sentencing computation purposes, include the water within which it is contained. The Court rejected the argument that the defendant should have been sentenced on the basis of the pure weight of the LSD.
Citing Chapman v. U.S., 111 S.Ct. 1919 (1991), the Court held that the weight of the mixture is the applicable weight for calcuting LSD quantities under the drug statutes. Accordingly, Grant, who admitted at his plea colloquy to possessing 10 grams of LSD, was subject to the mandatory minimum penalty of 120 months for LSD possession. The Court found no meaningful difference between the blotter paper carrier at issue in Chapman and the water used by Grant.
The Court rejected Grant’s argument that, at a resentencing after a successful appeal of a sentence in which he received a downward departure below the otherwise applicable mandatory minimum, the mandatory minimum could no longer be a relevant consideration for his sentence. The Court held that the resentencing "wiped the slate clean." The Court noted that Grant’s new sentence was half the mandatory minimum, and that the district court was free to reconstruct the sentence as it did, based on the mandatory minimum and a new downward departure.
Citing Chapman v. U.S., 111 S.Ct. 1919 (1991), the Court held that the weight of the mixture is the applicable weight for calcuting LSD quantities under the drug statutes. Accordingly, Grant, who admitted at his plea colloquy to possessing 10 grams of LSD, was subject to the mandatory minimum penalty of 120 months for LSD possession. The Court found no meaningful difference between the blotter paper carrier at issue in Chapman and the water used by Grant.
The Court rejected Grant’s argument that, at a resentencing after a successful appeal of a sentence in which he received a downward departure below the otherwise applicable mandatory minimum, the mandatory minimum could no longer be a relevant consideration for his sentence. The Court held that the resentencing "wiped the slate clean." The Court noted that Grant’s new sentence was half the mandatory minimum, and that the district court was free to reconstruct the sentence as it did, based on the mandatory minimum and a new downward departure.
Wednesday, January 26, 2005
2255 claim can be waived in plea colloquy
In Williams v. U.S., No. 04-11704 (Jan. 24, 2005), the Court held that a defendant whose plea agremeent provided for a waiver of his right to challenge his sentence "directly or collaterally" had waived his right to seek § 2255 relief by alleging ineffective assistance of counsel at sentencing. The Court pointed out that the district court specifically questioned Williams during the plea colloquy about the appeal waiver. In these circumstances, Williams knowingly waived his right to challenge his sentence under § 2255, and accordingly § 2255 relief was properly denied by the district court.
Booker appeal rights are waivable
In U.S. v. Rubbo, No. 04-10874 (Jan. 21, 2005), the Court (Carnes, Cox & Mills b.d.) held that an exception to a defendant’s appeal waiver which permitted an appeal if the sentence exceeded the "maximum permitted by statute" did not allow a challenge to a sentence on the basis that it exceeded the "statutory maximum" contemplated by the Supreme Court’s Apprendi/Blakely/Booker decisions.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
Cell phone call can be interstate nexus
In U.S. v. Drury, No. 02-12924 (Jan. 18, 2005), the Court (Barkett, Marcus, Alarcon b.d.), considering the case for second time after the grant of en banc rehearing was vacated, affirmed a conviction for violating the federal murder-for-hire statute, and for possessing a firearm in connection with a crime of violence, in violation of 18 U.S.C. §§ 1958(a), 924(c).
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
Tuesday, January 11, 2005
Conspiring to launder money requires no overt act
In Whitfield v. U.S., No. 03-1293 (Jan. 11, 2005), the Supreme Court held that proof of a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) does not require proof of an overt act in furtherance of the conspiracy.
The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense.
The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation.
Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.
The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense.
The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation.
Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.
Highway travel is Interstate Commerce
In U.S. v. Ballinger, No. 01-14872 (Jan. 10, 2005), the Court (en banc) held that 18 U.S.C. § 247, which criminalizes destruction of religious property on account of its religious character, is not an invalid exercise of Congress’ power under the Commerce Clause of the Constitution.
Ballinger was an arsonist who travelled on the interstate highways through 4 States for no other purpose than to burn churches to the ground. Eleven churches in 4 States were destroyed during the arson spree.
The Court found that it need not reach the issue whether the conviction was valid under Congress' Commerce Clause power to regulate intrastate activities which substantially affect interstate commerce, because the statute fell squarely within the other aspects of the Commerce Clause power, namely the power to regulate channels or instrumentalities of interstate commerce. The Court rejected the argument that arson is purely local activity, pointing out that Ballinger used the interstate highways, and that Congress can prohibit the use of interstate channels or instrumentalities to promote the "spread of any evil" from State to State. The Court pointed out that travel from State to State was essential to Ballinger’s crime. The Court pointed out that the statute contained a jurisdictional requirement that an arson affect interstate commerce, and that the statute therefore did not merely bar local intrastate arson.
The Court rejected the argument that interstate travel before the arson was irrelevant to the question of whether the arson was connected to interstate commerce. The Court construed the "in commerce" language of the statute’s jurisdictional requirement to refer to the use of the channels or instrumentalities of interstate commerce. The Court stated that the "in commerce" language reaches less commerce than "affecting commerce" language. But the Court found that the "in commerce" language covered the act of traveling interstate to commit arson. The Court pointed out that similarly-worded statutes prohibiting firearm possession had been upheld even though the only jurisdictional nexus was that the gun had at some point in time travelled interstate.
Ballinger was an arsonist who travelled on the interstate highways through 4 States for no other purpose than to burn churches to the ground. Eleven churches in 4 States were destroyed during the arson spree.
The Court found that it need not reach the issue whether the conviction was valid under Congress' Commerce Clause power to regulate intrastate activities which substantially affect interstate commerce, because the statute fell squarely within the other aspects of the Commerce Clause power, namely the power to regulate channels or instrumentalities of interstate commerce. The Court rejected the argument that arson is purely local activity, pointing out that Ballinger used the interstate highways, and that Congress can prohibit the use of interstate channels or instrumentalities to promote the "spread of any evil" from State to State. The Court pointed out that travel from State to State was essential to Ballinger’s crime. The Court pointed out that the statute contained a jurisdictional requirement that an arson affect interstate commerce, and that the statute therefore did not merely bar local intrastate arson.
The Court rejected the argument that interstate travel before the arson was irrelevant to the question of whether the arson was connected to interstate commerce. The Court construed the "in commerce" language of the statute’s jurisdictional requirement to refer to the use of the channels or instrumentalities of interstate commerce. The Court stated that the "in commerce" language reaches less commerce than "affecting commerce" language. But the Court found that the "in commerce" language covered the act of traveling interstate to commit arson. The Court pointed out that similarly-worded statutes prohibiting firearm possession had been upheld even though the only jurisdictional nexus was that the gun had at some point in time travelled interstate.
Thursday, January 06, 2005
Non-adverse conflict of interest
In Hunter v. Dep’t of Corrections, No. 04-13574 (Jan. 5, 2005), the Court (Carnes, Barkett, Hull) affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court rejected the argument that Hunter’s trial counsel labored under a conflict of interest because members of his office, the Public Defender’s Office for Volusia County, had represented the prosecution’s lead witness in unrelated earlier criminal proceedings, and had failed to cross-examine this witness about is prior criminal record. The Court found no basis for overturning the state court determinations that trial counsel was unaware of the witness’ criminal history. The Court also found that Hunter failed to show that his counsel’s representation was adversely affected by the conflict of interest. The Court noted no evidence of an "actual" conflict of interest. The Court also found no evidence of an adverse effect on counsel’s performance. The Court further noted that even if its own precedents supported Hunter’s claim, under habeas law a state determination is deficient only when it is at odds with Supreme Court precedent, which was not the case here.
The Court also rejected the argument that counsel was deficient for failing to introduce photographs of the defendants after the murder, wearing a different shirt than the one witnesses ascribed to the shooter. The Court noted that all the photographs, taken together, could have hurt the defense because they showed that the defendant might have changed shirts after the murder.
The Court rejected the argument that Hunter’s trial counsel labored under a conflict of interest because members of his office, the Public Defender’s Office for Volusia County, had represented the prosecution’s lead witness in unrelated earlier criminal proceedings, and had failed to cross-examine this witness about is prior criminal record. The Court found no basis for overturning the state court determinations that trial counsel was unaware of the witness’ criminal history. The Court also found that Hunter failed to show that his counsel’s representation was adversely affected by the conflict of interest. The Court noted no evidence of an "actual" conflict of interest. The Court also found no evidence of an adverse effect on counsel’s performance. The Court further noted that even if its own precedents supported Hunter’s claim, under habeas law a state determination is deficient only when it is at odds with Supreme Court precedent, which was not the case here.
The Court also rejected the argument that counsel was deficient for failing to introduce photographs of the defendants after the murder, wearing a different shirt than the one witnesses ascribed to the shooter. The Court noted that all the photographs, taken together, could have hurt the defense because they showed that the defendant might have changed shirts after the murder.
Tuesday, December 21, 2004
2241 Time Bar Same as 2254's
In Peoples v.Chatman, No. 03-12384 (Dec. 20, 2004), the Court (Anderson, Wilson, Owens b.d.) reaffirmed the holdings of Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003) and Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004), and held that the one-year time bar of 28 U.S.C. § 2244(d) applies not just to habeas petitions brought pursuant to 28 U.S.C. § 2254, but also to those brought pursuant to § 2241. Accordingly, Peoples’ § 2241 habeas petition, which was filed after the statute of limitations expired, was time-barred.
Free to revisit
In U.S. v. Eldick, No. 03-16158 (Dec. 20, 2004), the Court (Birch, Kravitch, Cudahy b.d.) vacated a sentence and remanded for resentencing, because sentence was imposed under the wrong statutory maximum. The Court noted that at resentencing the district court was free to revisit any rulings it had made at the initial sentencing.
Wednesday, December 15, 2004
Probable Cause to Arrest Even if Cop Cites Wrong Crime
In Devenpeck v. Alford, No. 03-710 (Dec. 13, 2004), the Supreme Court held that a warrantless arrest by a police officer is reasonable even if the offense establishing probable cause is not "closely related" to the conduct the arresting officer gives the defendant as the reason for the arrest at the time of arrest. The Court noted that under Whren v. United States, 517 U.S. 806 (1996), an arresting officer’s subjective reason for making an arrest is irrelevant to probable cause. What matters is whether, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Court noted that a "closely related offense" test for probable cause would have the perverse effect of causing officers to cease giving reasons for arrest, or to cite every conceivable reason for the arrest.
Lawyers' Standing to Sue for Non-Clients
In Kowalski v. Tesmer, No. 03-407, the Supreme Court held that attorneys lack third-party standing to assert the rights of criminal defendants who have been denied appellate rights after pleading guilty. [Note: it is thought that the Court will address the substantive issue – whether defendants who plead guilty can be denied appellate counsel, and can be denied the right to appeal unless a court specifically grants leave to appeal – in a pending case, Halbert v. Michigan, No. 03-10198].
Kotteakos to the rescue
In U.S. v. Hornaday, No. 03-13992 (Dec. 13, 2004), the Court (Anderson, Carnes, Bright b.d.) affirmed the conviction of a defendant under 18 U.S.C. § 2422(b) for using the internet to entice a minor to engage in prohibited sexual activity. After a number of internet and phone communications with an undercover agent posing as a father willing to allow his minor children to engage in sexual relations with the defendant, the defendant was arrested when he arrived at a meeting at which he expected to meet the children.
The Court rejected the argument that the defendant could not be convicted under § 2422(b) because his communications were all with an adult, the undercover agent. The Court noted that this argument was foreclosed by U.S. v. Murrell, 368 F.3d 1283 (11th Cir. 2004), which held that the existence of an adult intermediary did not affect the law’s application, when the defendant intended to induce a minor to engage in sexual activity.
The Court rejected the argument that the Commerce Clause required Congress only to penalize direct communications with children, noting that Congress can prohibit the misuse of the internet through intermediaries.
The Court agreed with Hornaday that the jury should not have been instructed that it could convict him under an aiding and abetting theory of liability, under 18 U.S.C. § 2. The Court recognized that a defendant cannot aid and abet a government agent in committing a crime, since the government agent never intends to commit the crime, i.e., to be the principal in the commission of a crime. The Court noted that §2(b) criminalizes conduct where a defendant gets a innocent third-person to commit an offense, and cited prior cases (particularly drug cases) which had so held. However, in Hornaday’s case, the undercover officer had no "children" who were willing to participate in unlawful activities. Since it is not a federal crime for a person to make believe on the internet or on the phone that he’s offering up his non-existent children to a sexual predator, Hornaday did not get an innocent person to commit an offense.
The Court concluded that the instruction was harmless error. The Court recognized that U.S. v. Martin, 747 F.2d 1404 (11th Cir. 1984) held that a faulty aiding and abetting jury instruction constituted reversible error, but held that Martin was not controlling because it had failed to correctly apply the Kotteakos standard of review. This standard inquires whether a reviewing court can say with "fair assurance that a non-constitutional error did not affect the verdict. Here, in view of the overwhelming evidence of Hornaday’s guilt as principal, the faulty instruction on aiding and abetting did not affect the verdict.
The Court rejected the argument that the defendant could not be convicted under § 2422(b) because his communications were all with an adult, the undercover agent. The Court noted that this argument was foreclosed by U.S. v. Murrell, 368 F.3d 1283 (11th Cir. 2004), which held that the existence of an adult intermediary did not affect the law’s application, when the defendant intended to induce a minor to engage in sexual activity.
The Court rejected the argument that the Commerce Clause required Congress only to penalize direct communications with children, noting that Congress can prohibit the misuse of the internet through intermediaries.
The Court agreed with Hornaday that the jury should not have been instructed that it could convict him under an aiding and abetting theory of liability, under 18 U.S.C. § 2. The Court recognized that a defendant cannot aid and abet a government agent in committing a crime, since the government agent never intends to commit the crime, i.e., to be the principal in the commission of a crime. The Court noted that §2(b) criminalizes conduct where a defendant gets a innocent third-person to commit an offense, and cited prior cases (particularly drug cases) which had so held. However, in Hornaday’s case, the undercover officer had no "children" who were willing to participate in unlawful activities. Since it is not a federal crime for a person to make believe on the internet or on the phone that he’s offering up his non-existent children to a sexual predator, Hornaday did not get an innocent person to commit an offense.
The Court concluded that the instruction was harmless error. The Court recognized that U.S. v. Martin, 747 F.2d 1404 (11th Cir. 1984) held that a faulty aiding and abetting jury instruction constituted reversible error, but held that Martin was not controlling because it had failed to correctly apply the Kotteakos standard of review. This standard inquires whether a reviewing court can say with "fair assurance that a non-constitutional error did not affect the verdict. Here, in view of the overwhelming evidence of Hornaday’s guilt as principal, the faulty instruction on aiding and abetting did not affect the verdict.
Consecutive Sentences
In U.S. v. Bidwell, No. 03-14790 (Dec. 15, 2004), the Court (Tjoflat, Dubina, Pryor) affirmed the imposition of a 15-year federal sentence for a father's filming and distributing his sexual abuse of his daughter, to run consecutive to a 30-year State sentence for the sexual abuse itself. The Court rejected the argument that USSG § 5G1.3 precluded the imposition of consecutive sentences.
The Court recognized that § 5G1.3 is designed to avoid the imposition of duplicative sentences. The Court pointed out, however, that this provision applies when an undischarged term of imprisonment resulted from an offense which has been fully taken into account in the calculation of an offender's offense level for a new offense. Here, the calculation of the offense level for the offense of trafficking in child pornography did not take account of the crime of sexual abuse. Videotaping is a different crime from sexual abuse.
The Court rejected the argument based on the fact that the sexual abuse could have been taken into account in the offense level calculation as part of Bidwell's "relevant conduct," regardless of whether it was actually taken into account by the sentencing judge. The Court noted that there was no manipulation of the charged conduct by the government to attain consecutive sentences. Instead, the State and Federal governments chose to prosecute the two crimes separately. In this situation, the district court has discretion to sentence consecutively.
The Court recognized that § 5G1.3 is designed to avoid the imposition of duplicative sentences. The Court pointed out, however, that this provision applies when an undischarged term of imprisonment resulted from an offense which has been fully taken into account in the calculation of an offender's offense level for a new offense. Here, the calculation of the offense level for the offense of trafficking in child pornography did not take account of the crime of sexual abuse. Videotaping is a different crime from sexual abuse.
The Court rejected the argument based on the fact that the sexual abuse could have been taken into account in the offense level calculation as part of Bidwell's "relevant conduct," regardless of whether it was actually taken into account by the sentencing judge. The Court noted that there was no manipulation of the charged conduct by the government to attain consecutive sentences. Instead, the State and Federal governments chose to prosecute the two crimes separately. In this situation, the district court has discretion to sentence consecutively.
Tuesday, December 14, 2004
Effective Assistance of Counsel?
In Florida v.Nixon, No. 03-931 (Dec. 13, 2004), the Supreme Court held that defense counsel for a defendant charged with a murder and subject to the death penalty did not render ineffective assistance when, without getting his client’s affirmative, explicit acceptance, he decided to concede that his client had committed murder and focused (unsuccessfully) on the sentencing phase of the trial.
The Court noted that counsel’s strategy was not the equivalent of a guilty plea, because he put the State to its proof at trial, and was able to exclude prejudicial evidence. Further, the client’s silence each time information was put to him did not render unreasonable counsel’s decision to concede guilt and to home in, instead, on the life or death penalty issue.
Counsel’s conduct was not per se ineffective under U.S. v. Cronic, 466 U.S. 648 (1984) but instead should be evalutated under the standard of Strickland v. Washington, 466 U.S. 668 (1984), because counsel did not entirely fail to function as the client’s advocate. The Court found that the potential sentence in a capital case can affect counsel’s strategic calculus. The Court noted that challenging guilt in the face of overwhelming evidence and a heinous crime could undermine counsel’s credibility with the jury at the sentencing phase, when counsel is seeking to spare the client’s life. The Court noted that the defendant had been unresponsive to counsel’s inquiries about strategy, and declined to impose a blanket rule requiring the defendant’s consent for a concession of guilt.
The Court noted that counsel’s strategy was not the equivalent of a guilty plea, because he put the State to its proof at trial, and was able to exclude prejudicial evidence. Further, the client’s silence each time information was put to him did not render unreasonable counsel’s decision to concede guilt and to home in, instead, on the life or death penalty issue.
Counsel’s conduct was not per se ineffective under U.S. v. Cronic, 466 U.S. 648 (1984) but instead should be evalutated under the standard of Strickland v. Washington, 466 U.S. 668 (1984), because counsel did not entirely fail to function as the client’s advocate. The Court found that the potential sentence in a capital case can affect counsel’s strategic calculus. The Court noted that challenging guilt in the face of overwhelming evidence and a heinous crime could undermine counsel’s credibility with the jury at the sentencing phase, when counsel is seeking to spare the client’s life. The Court noted that the defendant had been unresponsive to counsel’s inquiries about strategy, and declined to impose a blanket rule requiring the defendant’s consent for a concession of guilt.
Thursday, December 09, 2004
Guideline in harmony with Statute
In U.S. v. Vega, No. 03-13329 (Dec. 8, 2004), a panel of the Court on rehearing (Tjoflat, Barkett & Siler b.d.), reversed its prior published decision at 365 F.3d 988 (Sentencing Commission exceeded its statutory authority when it provided for an enhancement for weapons possessed under a "grandfather" clause of the weapons ban), and upheld the sentence enhancement.
The Court pointed out that the statute at issue,18 U.S.C. § 924(a)(1)(A) criminalizes false statements made in connection with the transfer of firearms, and does not distinguish between pre and post weapons ban statements. The Commission could rationally have decided to penalize more severely false statements made, as here, in connection with semiautomatic weapon transfers, than in connection with less dangerous firearms. Thus, although the statutes did not criminalize possession of certain "grandfathered," pre-ban, weapons, the statute at issue, which criminalized the making of false statements, could apply to both pre and post-ban statements. The Court noted that Congress had upped the penalties for use of a semiautomatic weapon during a crime of violence when it passed the weapons ban, and the Guidelines' increased penalty for false statements in connection with these weapons was in fact consistent with Congressional intent.
The Court pointed out that the statute at issue,18 U.S.C. § 924(a)(1)(A) criminalizes false statements made in connection with the transfer of firearms, and does not distinguish between pre and post weapons ban statements. The Commission could rationally have decided to penalize more severely false statements made, as here, in connection with semiautomatic weapon transfers, than in connection with less dangerous firearms. Thus, although the statutes did not criminalize possession of certain "grandfathered," pre-ban, weapons, the statute at issue, which criminalized the making of false statements, could apply to both pre and post-ban statements. The Court noted that Congress had upped the penalties for use of a semiautomatic weapon during a crime of violence when it passed the weapons ban, and the Guidelines' increased penalty for false statements in connection with these weapons was in fact consistent with Congressional intent.
"Lights out"
In U.S. v. Wright, No. 03-13359 (Dec. 8, 2004), the Court (Edmondson, Pryor, Fay) affirmed the conviction of a defendant convicted of being a felon in unlawful possession of a weapon, in violation of 18 U.S.C. §§ 922(g) and 924.
The defendant was stopped for speeding and driving erratically. He was stopped, and failed a field sobriety test. When the officer instructed Wright to place his hands behind his back, a struggle ensued. After Wright was subdued, his vehicle was searched, and a firearm was found under the seat. After his arrest, Wright, making the signal of a hand pointing a gun, commented that the officers were luck he had not made it back to his car, because "it would have been lights out."
The Court rejected a sufficiency of the evidence challenge, noting that the jury was free to reject Wright’s father’s testimony that it was his gun under the seat in the vehicle, and that Wright’s constructive possession of the gun in the vehicle he was driving, coupled with the incriminating "lights out" comment, sufficed.
The Court also rejected the argument that the trial court abandoned its neutral role when it (1) told the prosecutor he had neglected to have the witness identify the defendant as the perpetrator, and (2) asked a testifying officer to give clarifying details regarding Wright’s hand-pointing gesture. The Court found this did not evidence bias, and that the district court was authorized to "clarify" the evidence presented through its own questions.
The Court found no error, under Fed. R. Evid. 404(b), in admitting evidence of Wright’s driving which led to his stop, or of his resisting arrest. The Court noted the need "to put a cohesive sequence of the crime before the jury." Further, resisting arrest was probative consciousness of guilt.
The Court rejected a challenge to a jury instruction that resisting arrest may help establish guilt or innocence. The Court reviewed the issue for plain error, because the defendant objected at trial only that the instruction was not a pattern jury instruction, rather than the argument on appeal that the instruction was unwarranted. . The Court noted that evidence of flight must meet certain criteria of probativeness before it will be admitted. Significantly, these criteria must include permit an inference from consciousness of guilt concerning the crime charged to actual guilty of the crime charged. The Court noted that while in this case the defendant’s resisting arrest could be only related to his arrest for drunk driving, and not for unlawful weapon possession, it was for the jury to decide how to weigh this evidence, and the instruction merely authorized the jury to draw a permissible inference.
Further, the Court rejected the challenge to the trial court’s decision, without informing the parties, to furnish the jury, during deliberations, with a ruler, in response to the jury’s request for a ruler. Again, reviewing the matter for plain error, the Court found that the ruler merely functioned as a visual aid and was unlikely to have made a difference.
Finally, the Court rejected the argument, raised for the first time on appeal, that § 922(g) lacked constitutional support under the Commerce Clause. Noting that the Eleventh Circuit had previously decided this issue, the Court dismissed the challenge, stating that "it would not be useful for us to address this issue."
The defendant was stopped for speeding and driving erratically. He was stopped, and failed a field sobriety test. When the officer instructed Wright to place his hands behind his back, a struggle ensued. After Wright was subdued, his vehicle was searched, and a firearm was found under the seat. After his arrest, Wright, making the signal of a hand pointing a gun, commented that the officers were luck he had not made it back to his car, because "it would have been lights out."
The Court rejected a sufficiency of the evidence challenge, noting that the jury was free to reject Wright’s father’s testimony that it was his gun under the seat in the vehicle, and that Wright’s constructive possession of the gun in the vehicle he was driving, coupled with the incriminating "lights out" comment, sufficed.
The Court also rejected the argument that the trial court abandoned its neutral role when it (1) told the prosecutor he had neglected to have the witness identify the defendant as the perpetrator, and (2) asked a testifying officer to give clarifying details regarding Wright’s hand-pointing gesture. The Court found this did not evidence bias, and that the district court was authorized to "clarify" the evidence presented through its own questions.
The Court found no error, under Fed. R. Evid. 404(b), in admitting evidence of Wright’s driving which led to his stop, or of his resisting arrest. The Court noted the need "to put a cohesive sequence of the crime before the jury." Further, resisting arrest was probative consciousness of guilt.
The Court rejected a challenge to a jury instruction that resisting arrest may help establish guilt or innocence. The Court reviewed the issue for plain error, because the defendant objected at trial only that the instruction was not a pattern jury instruction, rather than the argument on appeal that the instruction was unwarranted. . The Court noted that evidence of flight must meet certain criteria of probativeness before it will be admitted. Significantly, these criteria must include permit an inference from consciousness of guilt concerning the crime charged to actual guilty of the crime charged. The Court noted that while in this case the defendant’s resisting arrest could be only related to his arrest for drunk driving, and not for unlawful weapon possession, it was for the jury to decide how to weigh this evidence, and the instruction merely authorized the jury to draw a permissible inference.
Further, the Court rejected the challenge to the trial court’s decision, without informing the parties, to furnish the jury, during deliberations, with a ruler, in response to the jury’s request for a ruler. Again, reviewing the matter for plain error, the Court found that the ruler merely functioned as a visual aid and was unlikely to have made a difference.
Finally, the Court rejected the argument, raised for the first time on appeal, that § 922(g) lacked constitutional support under the Commerce Clause. Noting that the Eleventh Circuit had previously decided this issue, the Court dismissed the challenge, stating that "it would not be useful for us to address this issue."
"Fleeing" isn't necessarily "Endangering"
In U.S. v. Wilson, No. 03-14408 (Dec. 7, 2004), the Court (Barkett, Hull & Cox) held that a prior conviction for aggravated child abuse counts as a crime of violence for purposes of the 16-level enhancement authorized by USSG § 2L1.2(b)(1)(A)((ii). The Court noted that a prior conviction under this provision references any offense that has "physical force" as an element "and" any one of a number of specific enumerated offenses, e.g. murder, manslaughter, etc... The defendant conceded that his aggravated child abuse involved "physical force" but contended that since this offense was not enumerated in the Guideline, it did not count. The Court rejected the argument, pointing out that the enumerated offenses were merely for purposes of "illustration," and did not limit the range of qualifying prior offenses involving "physical force."
The Court reversed the imposition of a two-level enhancement for causing bodily injury because it was based on the spraining of a law enforcement officer’s finger when he tacked Wilson as Wilson attempted to flee from arrest. The Court noted that the physical injury enhancement applies when a defendant behaves recklessly "in the course of fleeing," but this meant the mere fact of fleeing, in itself, did not trigger the enhancement. Wilson’s flight alone could not be said to have created the kind of "substantial risk of death or serious bodily injury" which the incremental punishment of the Guideline covered.
The Court reversed the imposition of a two-level enhancement for causing bodily injury because it was based on the spraining of a law enforcement officer’s finger when he tacked Wilson as Wilson attempted to flee from arrest. The Court noted that the physical injury enhancement applies when a defendant behaves recklessly "in the course of fleeing," but this meant the mere fact of fleeing, in itself, did not trigger the enhancement. Wilson’s flight alone could not be said to have created the kind of "substantial risk of death or serious bodily injury" which the incremental punishment of the Guideline covered.
The fine lines of "means of identification"?
In U.S. v. Auguste, No, 03-16121 (Dec. 7, 2004), the Court (Hull, Marcus & Mills b.d.), affirmed the imposition of a two-level sentence enhancement, pursuant to USSG § 2B1.1(b)(9)(C)(i), for the "unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification," to a defendant who added her name to a victim’s line of credit as a purported legitimate secondary holder.
The Court noted that credit card numbers and credit cards both count as "means of identification." The Court noted Auguste’s argument that she used her own name, not someone else’s name, when she used the credit card. But the Court found this point inapposite, because the enhancement applies to a person who unlawfully obtains a "means of identification." Here, Auguste used account numbers to obtain credit cards, and her conduct therefore fell within the plain language of the Guideline.
The Court noted that credit card numbers and credit cards both count as "means of identification." The Court noted Auguste’s argument that she used her own name, not someone else’s name, when she used the credit card. But the Court found this point inapposite, because the enhancement applies to a person who unlawfully obtains a "means of identification." Here, Auguste used account numbers to obtain credit cards, and her conduct therefore fell within the plain language of the Guideline.
Tuesday, December 07, 2004
Don't Forget the Laundry List; But Read the Dissents
In U.S. v. Levy, No. 01-17122 (Dec. 3, 2004), the Court denied rehearing en banc from its panel decision holding that a defendant waived reliance on Blakely in a supplemental filing when, prior to the Supreme Court’s decision in Blakely v. Washington, the defendant failed to raise a Blakely-type claim in his initial appellate brief.
In a plurality opinion concurring in the denial of rehearing en banc, Judges Hull, Anderson, Carnes & Pryor explained that the retroactivity requirement of Griffith v. Kentucky, 479 U.S. 314 (1987), which mandates that new Supreme Court cases apply to cases on direct appeal, did not trump the Court’s procedural default rules. The concurring opinion noted that a litigant is not precluded from raising an argument on appeal simply because a previous appeal has been decided that rejects the argument, since the litigant can pursue the issue en banc, or in the United States Supreme Court. The concurring opinion further noted that its rule that it would not consider claims not raised in an initial brief was "well-established," and found no grounds from deviating from it.
Three judges dissented. Judges Tjoflat and Wilson wrote what is essentially a cert petition for those seeking to apply Blakely for the first time in pipeline appeals, explaining why the Eleventh Circuit's "well-established" position is neither that nor right, and the cases on which it relies -- U.S. v. Nealy and U.S. v. Ardley -- are contrary to the holding in Griffith. Under the Eleventh Circuit's interpretation, they argue, there is an unaccounted-for gap between pipeline appeals and closed cases, a gap that Griffith seemingly took pains to avoid. Judges Tjoflat and Wilson nicely identify a circuit split of authority -- Nealy, Ardley, and now Levy -- stand alone among the circuits, since all other circuits allow pipeline appellants to supplement initial arguments with intervening arguments and authority. They also worry about lawyers littering briefs with all kinds of "innovative" arguments, even though the issues have already been decided adversely by precedent, awaiting the next Apprendi, Blakely, etc. Judge Barkett dissented in a separate opinion in which she argues that neither Nealy nor Ardley apply, but that Griffith does. Those who have had supplemental briefs and supplemental authority rejected by the Eleventh have their cert petitions written for them in the dissenting opinions.
In a plurality opinion concurring in the denial of rehearing en banc, Judges Hull, Anderson, Carnes & Pryor explained that the retroactivity requirement of Griffith v. Kentucky, 479 U.S. 314 (1987), which mandates that new Supreme Court cases apply to cases on direct appeal, did not trump the Court’s procedural default rules. The concurring opinion noted that a litigant is not precluded from raising an argument on appeal simply because a previous appeal has been decided that rejects the argument, since the litigant can pursue the issue en banc, or in the United States Supreme Court. The concurring opinion further noted that its rule that it would not consider claims not raised in an initial brief was "well-established," and found no grounds from deviating from it.
Three judges dissented. Judges Tjoflat and Wilson wrote what is essentially a cert petition for those seeking to apply Blakely for the first time in pipeline appeals, explaining why the Eleventh Circuit's "well-established" position is neither that nor right, and the cases on which it relies -- U.S. v. Nealy and U.S. v. Ardley -- are contrary to the holding in Griffith. Under the Eleventh Circuit's interpretation, they argue, there is an unaccounted-for gap between pipeline appeals and closed cases, a gap that Griffith seemingly took pains to avoid. Judges Tjoflat and Wilson nicely identify a circuit split of authority -- Nealy, Ardley, and now Levy -- stand alone among the circuits, since all other circuits allow pipeline appellants to supplement initial arguments with intervening arguments and authority. They also worry about lawyers littering briefs with all kinds of "innovative" arguments, even though the issues have already been decided adversely by precedent, awaiting the next Apprendi, Blakely, etc. Judge Barkett dissented in a separate opinion in which she argues that neither Nealy nor Ardley apply, but that Griffith does. Those who have had supplemental briefs and supplemental authority rejected by the Eleventh have their cert petitions written for them in the dissenting opinions.
Tuesday, November 30, 2004
The New Federalism: Court Bails Out State
In Day v. Crosby, No. 04-10778 (Nov. 29, 2004), the Court (Tjoflat, Dubina, Pryor) held that a district court is authorized sua sponte to dismiss a habeas petition under the AEDPA statute of limitations, even though the State (erroneously) conceded in its answer that the petition was timely. The Court recognized that in ordinary civil cases, a statute of limitations defense is waivable, but pointed out that habeas cases are governed by the Rules Governing § 2254 cases, and these rules specifically authorize district courts to order summary dismissals. The Court noted the federal court’s "obligation" to enforce the AEDPA statute of limitations. The Court noted a conflict with other circuits which have held that a court does not have authority to sua sponte "cure" a party’s waiver.
The Value of a Plea Agreement
In U.S. v. Cesal, No. 03-15090 (Nov. 23, 2004), the Court (Carnes, Hull, and Wilson) affirmed the conviction and life sentence for a charge of conspiracy to distribute marijuana. The Court rejected several claims of error regarding Mr. Cesal's guilty plea and his request to proceed pro se. And the Court ruled that Mr. Cesal had waived his right to appeal his life sentence.
The Court relied on the written plea agreement entered into by Mr. Cesal and the government that was negotiated on the day of trial while the jury that had been selected but not sworn waited outside the courtroom. On the eve of trial, Mr. Cesal's co-defendant had negotiated a plea agreement with the government. In the plea agreement, Mr. Cesal consented to plead guilty to one count of conspiracy to distribute marijuana, to waive his right to appeal his sentence, and to cooperate with the government. The government agreed to hold Mr. Cesal accountable for only 1000 to 3000 kilograms of marijuana. The agreement also stated that if Mr. Cesal failed to fulfill his obligations, the government could recommend any sentence it deemed appropriate. Mr. Cesal entered his plea of guilty immediately and was then debriefed by government agents. A few days later, Mr. Cesal sought to withdraw his plea based on his disagreement with the facts as set out by the government and ineffective assistance of counsel.
In affirming the conviction, the Court noted that the plea colloquy, held right after the agreement was hammered out, did not go smoothly with Mr. Cesal expressing some pressure to plead guilty based on the higher sentence he faced if he went to trial and disagreeing with some of the facts in the government's factual proffer. But the Court held that the district court had addressed the core concerns of Rule 11 by ensuring that the plea was voluntary, that Mr. Cesal understood the nature of the charges and he understood the consequences of his guilty plea. The Court also found no abuse of discretion in the denial of a motion to withdraw the guilty plea noting the sufficient time spent on negotiating the agreement, the assistance of counsel, and the fact that the court was poised to begin the trial with a jury waiting when the plea was accepted. The Court further ruled that the government did not breach the plea agreement when it argued that Mr. Cesal should be held responsible for more than10,000 kilograms of marijuana, as he admitted in his debriefing, instead of the limit of 1000 to 3000 kilograms noted in the plea agreement. The Court agreed with the government that Mr. Cesal's request to withdraw his plea and his testimony at a hearing on that issue constituted a breach of the agreement which then allowed the government to argue for whatever punishment it deemed appropriate.
The Court also upheld the denial of Mr. Cesal's request to proceed pro se noting his vacillation on that issue before the district court. Finally, the Court upheld the appellate waiver contained in the plea agreement in which Mr. Cesal expressly agreed to waive his right to appeal his sentence, and, thus dismissed that portion of the appeal. [Summary by Tim Cone]
The Court relied on the written plea agreement entered into by Mr. Cesal and the government that was negotiated on the day of trial while the jury that had been selected but not sworn waited outside the courtroom. On the eve of trial, Mr. Cesal's co-defendant had negotiated a plea agreement with the government. In the plea agreement, Mr. Cesal consented to plead guilty to one count of conspiracy to distribute marijuana, to waive his right to appeal his sentence, and to cooperate with the government. The government agreed to hold Mr. Cesal accountable for only 1000 to 3000 kilograms of marijuana. The agreement also stated that if Mr. Cesal failed to fulfill his obligations, the government could recommend any sentence it deemed appropriate. Mr. Cesal entered his plea of guilty immediately and was then debriefed by government agents. A few days later, Mr. Cesal sought to withdraw his plea based on his disagreement with the facts as set out by the government and ineffective assistance of counsel.
In affirming the conviction, the Court noted that the plea colloquy, held right after the agreement was hammered out, did not go smoothly with Mr. Cesal expressing some pressure to plead guilty based on the higher sentence he faced if he went to trial and disagreeing with some of the facts in the government's factual proffer. But the Court held that the district court had addressed the core concerns of Rule 11 by ensuring that the plea was voluntary, that Mr. Cesal understood the nature of the charges and he understood the consequences of his guilty plea. The Court also found no abuse of discretion in the denial of a motion to withdraw the guilty plea noting the sufficient time spent on negotiating the agreement, the assistance of counsel, and the fact that the court was poised to begin the trial with a jury waiting when the plea was accepted. The Court further ruled that the government did not breach the plea agreement when it argued that Mr. Cesal should be held responsible for more than10,000 kilograms of marijuana, as he admitted in his debriefing, instead of the limit of 1000 to 3000 kilograms noted in the plea agreement. The Court agreed with the government that Mr. Cesal's request to withdraw his plea and his testimony at a hearing on that issue constituted a breach of the agreement which then allowed the government to argue for whatever punishment it deemed appropriate.
The Court also upheld the denial of Mr. Cesal's request to proceed pro se noting his vacillation on that issue before the district court. Finally, the Court upheld the appellate waiver contained in the plea agreement in which Mr. Cesal expressly agreed to waive his right to appeal his sentence, and, thus dismissed that portion of the appeal. [Summary by Tim Cone]
Monday, November 29, 2004
Confrontation in the Digital Age
U.S. v. Yates, No. 02-13654 (Nov. 24, 2004) . The Eleventh Circuit vacated fraud and money laundering convictions based on a violation of the Sixth Amendment's Confrontation Clause. At trial, the government was allowed to introduce, over defense objection, the testimony of two key witnesses via two-way videoconferencing from Australia. The witnesses, who were beyond subpoena power, were willing to testify but not to travel to Alabama to do so. The Court first held that it would apply the two-part test announced in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990), to determine whether a Sixth Amendment violation had occurred. In Craig, a case dealing with a rule that allowed a child victim of abuse to testify via a one-way closed-circuit video, the Supreme Court held that absence of a physical, face-to-face confrontation does not violate the Sixth Amendment "where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S. Ct. at 3166. The application of the Craig standard is important because in applying Craig, the Eleventh Circuit declined to follow the lead of the Second Circuit which had approved the use of two-way, closed-circuit television to present witness testimony from an undisclosed location outside the courtroom. See United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). In Gigante, the Second Circuit reasoned that the Craig standard only applied in the case of a one-way, closed-circuit transmittal where the witness could not see the defendant. Id. at 81. In contrast, the Eleventh Circuit held that the Craig standard applied anytime that the government sought to deny the defendant a physical, face-to-face confrontation with a witness. Applying Craig and reversing, the Court rejected the government's contention, which had been accepted by the district court, that the testimony served the "important public policy of providing the fact-finder with crucial evidence." Specifically, the Court held that "the prosecutor's need for the testimony in order to make a case and expeditiously resolve it are not public policies that are important enough to outweigh a defendant's right to confront an accuser face-to-face."
Certiorari Granted in Dodd v. U.S.
The Supreme Court today granted certiorari in Dodd v. U.S., No. 04-5286, 2004 WL 2073304 (U.S. Nov. 29, 2004), to resolve the circuit conflict over the starting point for the one-year AEDPA statute of limitations as to newly-recognized rights. In Dodd v. U.S., the Eleventh Circuit held that 28 U.S.C. § 2255(3)’s one-year limit for filing a § 2255 motion seeking relief based on a right newly recognized by the Supreme Court and made retroactive for collateral relief, begins to run from the date the Supreme Court recognizes the new right and not from the date that a court of appeals (or district court) finds the newly-recognized right to be retroactive. Thus, as the Court explained, as soon as the Supreme Court newly announces a right, all prisoners who could obtain relief from violation of that right – if it were made retroactive – should proceed to file for relief, on the hope that the right will later be seen to be retroactive. Such prisoners cannot simply await a decision on retroactivity before filing a 28 U.S.C. § 2255 motion. Here, the movant sought relief under the holding in Richardson v. U.S., 526 U.S. 813 (1999), that a CCE verdict requires jury unanimity on the constituent CCE violations. Although the Eleventh Circuit did not recognize Richardson as having retroactive effect until 2002 (several months after Dodd filed his § 2255 motion), that retroactivity decision was irrelevant to the running of the one-year time period (which period jump-started Dodd’s eligibility to seek § 2255 relief, his conviction having become final several years before the Richardson decision).
[NOTE: Petitioner Dodd is represented by our office's appellate division; the petition was filed by AFPD Janice Bergmann.]
[NOTE: Petitioner Dodd is represented by our office's appellate division; the petition was filed by AFPD Janice Bergmann.]
Tuesday, November 23, 2004
Not Much of a Friend
Many thought that the pending Supreme Court case of Shepard v. U.S. -- raising the permissible means by which a sentencing judge may determine if an Armed Career Criminal Act predicate offense exists -- was a vehicle for the Court to recede from its earlier decision in Almendarez-Torres. An amicus brief was even filed on the issue by NACDL. At oral argument, a justice tried to move the discussion in that direction, but counsel for Shepard short-circuited that possibility:
Transcript of OA at 13. That ended all mention of the continuing viability of Almendarez-Torres . . .JUSTICE O'CONNOR: Do you join the amici in saying Almendarez-Torres has to be overruled?
MS. THOMPSON: No, I do not.
JUSTICE O'CONNOR: No.
MS. THOMPSON: I do not join . . .
Tuesday, November 16, 2004
Should Have Sold Them on eBay
In U.S. v. Williams, No. 03-15395 (Nov. 16, 2004), on a government appeal, the Court (Edmondson, Fay, Corrigan b.d.) reversed a district court's order granting a Rule 29 judgment of acquittal after a jury returned a guilty verdict against a defendant charged with one count of bank fraud. The bank fraud conviction arose out of the defendant's unsuccessful attempt, along with her daughter, to get a bank to issue her a cashier's check on the basis of a (false) representation that a wire transfer would soon be coming into her account as payment for two rare signed baseballs she sold. On appeal, the government argued that the district court erred in relying on the defendant's testimony at trial that her daughter was orchestrating the scheme and that she knew nothing. The Court agreed, noting that the evidence, after a guilty verdict, must be viewed in the light most favorable to the government. The government's evidence showed that Williams was aware of lies about the forthcoming wire transfer, and about the sale of rare baseballs, and was attempting to get money from the bank, or aiding and abetting such a scheme. The Court noted that the district court's contrary finding was based on the defendant's testimony. However, the jury was free to reject that testimony, and could in fact convict the defendant in part because they disbelieved it.
Monday, November 15, 2004
Home & Garden
In U.S. v. Pineiro, No. 03-1473 (Nov. 15, 2004), the Court (Hull, Marcus, Hancock b.d.) affirmed a conviction and sentence of a defendant convicted of maintaining a place for purpose of manufacturing and distrbuting marihuana. The Court rejected the argument that marihuana plants evidence should have been suppressed because Pineiro did not consent to a search of a house at which marihuana plants were found. Based on Pineiro's "cooperation" with the agents who searched the house, the Court found the requisite consent. The Court also found no reason to suppress Pineiro's inculpatory statements, finding that hewas informed of his Miranda rights before he made the statements. The Court also rejected a challenge to the sufficiency of the evidence. Pineiro contended that the marihuana plants were left over from the prior owner, from whom he had just purchased the house a few weeks before. The Court pointed out that material consistent with the equipment and material used in marihuana grow houses was found in the house. The Court also noted that a photograph of Pineiro in the house was recovered, and neighbors reported a smell of marihuana, and lights on all day and all night. In view of this evidence, the jury was free to reject Pineiro's defense that the material was left over from a prior owner. Recognizing that a conspiracy conviction presented a "closer question," the Court noted that the government presented evidence of Pineiro's close personal relationship with his cousin, who was involved in marihuana trafficking. Further, Pineiro's vehicle was seen parked at the marihuana grow house at thetime when it was owned by his cousin. The Court further noted "substantial similarities" between a grow house operated by the cousin and another grow houseat which Pineiro was arrested. This evidence sufficed to give rise to a jury's guilty verdict beyond a reasonable doubt.
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