In Battle v. U.S., No. 03-14908 (Aug. 10, 2005), the Court (Edmondson, Birch & Black) (withdrawing its earlier opinion) denied § 2255 relief to a defendant sentenced to death for the killing a federal correctional officer.
The Court rejected Battle’s argument that he was incompetent to stand trial. "That Battle at times exhibited an antagonistic relationship with his lawyers over their representation of him is no indicator of incompetency. Many criminal defendants differ with their lawyers on how to best represent them." The Court further found that the district court did not error in siding with one set of experts instead of another in view of their "diametrically opposite" views. In addition, the court observed Battle throughout the trial.
The Court also rejected the argument that an insanity defense was forced upon Battle by his lawyers, finding that he at least tacitly consent to it.
The Court also rejected the argument that the indictment should have charged aggravating factors in order to be valid under Ring v. Arizona. The Court noted that Ring does not apply retroactively to cases like Battle’s.
The Court rejected Battle’s argument that the district court violated 18 U.S.C. § 3593(b), which requires the same jury which decided guilt to decide life or death, when it allowed alternate jurors to sit on the penalty jury after two jurors from the guilt phase had been dismissed for cause. The retention of alternates was a "wise" decision, and Battle suffered no prejudice because even if the alternates had less persuasive effect (for not having sat in on deliberations relating to guilt) a single vote against death would have sufficed to thwart a death sentence – and no alternate voted for life.
Monday, August 15, 2005
Yuknavich: Reduced Privacy on Probation
In U.S. v. Yuknavich, No. 04-10852 (Aug. 11, 2005), the Court (Black, Wilson, Nangle b.d.) upheld the constitutionality of a search by probation officers from the home of a convicted child sex offender.
Yuknavich was on probation following convictions on state charges of exploitation of a child and distributing obscene material. He was given a sentence of seven years probation. The terms of probation contained a number of specific prohibited activities, but did not require Yuknavich to submit to searches of his home by probation or police. During his probation, probation officers discovered child pornography at his home, and Yuknavich was convicted on federal child pornography charges. Yuknavich challenged the constitutionality of the search of his home.
Citing United States v. Knights, 534 U.S. 112 (2001), the Court found no Fourth Amendment violation. The Court noted that under Knights persons on probations have a lessened privacy interest, and that reasonable suspicion will support a police search. The Court recognized that Heath’s probation did not, unlike Knights, contain a provision expressly submitting to police searches. However, in Heath’s circumstances, on balance, even without this express provision, the search was legal. The Court noted that the search was limited to the Internet activities of Heath’s computer, and that Yuknavich was limited to work related use of his computer. His privacy expectations were further reduced because of his actions while on probation, which included violated the terms and placing himself in inappropriate situations. "For an individual, who was on probation for possessing child pornography on his computer, who admitted he had masturbated to fantasies of a young boy he had sexually assaulted, who had already twice accessed the Internet without anyone’s knowledge, to purchase a computer and not expect his probation officers to see red flags everywhere is inconceivable."
The Court found that the probation officers had reasonable suspicion to search Yuknavich’s computer at home, based on his conduct on the day in question, when he delayed ten minutes opening the door, and appeared shirtless at the door, and acted very nervous.
Yuknavich was on probation following convictions on state charges of exploitation of a child and distributing obscene material. He was given a sentence of seven years probation. The terms of probation contained a number of specific prohibited activities, but did not require Yuknavich to submit to searches of his home by probation or police. During his probation, probation officers discovered child pornography at his home, and Yuknavich was convicted on federal child pornography charges. Yuknavich challenged the constitutionality of the search of his home.
Citing United States v. Knights, 534 U.S. 112 (2001), the Court found no Fourth Amendment violation. The Court noted that under Knights persons on probations have a lessened privacy interest, and that reasonable suspicion will support a police search. The Court recognized that Heath’s probation did not, unlike Knights, contain a provision expressly submitting to police searches. However, in Heath’s circumstances, on balance, even without this express provision, the search was legal. The Court noted that the search was limited to the Internet activities of Heath’s computer, and that Yuknavich was limited to work related use of his computer. His privacy expectations were further reduced because of his actions while on probation, which included violated the terms and placing himself in inappropriate situations. "For an individual, who was on probation for possessing child pornography on his computer, who admitted he had masturbated to fantasies of a young boy he had sexually assaulted, who had already twice accessed the Internet without anyone’s knowledge, to purchase a computer and not expect his probation officers to see red flags everywhere is inconceivable."
The Court found that the probation officers had reasonable suspicion to search Yuknavich’s computer at home, based on his conduct on the day in question, when he delayed ten minutes opening the door, and appeared shirtless at the door, and acted very nervous.
Heath: Judge, not Probation, must order mental health program
In U.S. v. Heath, No. 05-10175 (Aug. 12, 2005), the Court held that a sentencing court violated Article III when, as a condiction of Heath’s supervised release, it delegated to a probation officer the power to decide whether Heath had to participate in a mental health treatment program.
The Court found that the Article III violation met all four prongs of the "plain error" test. The error was "plain" under the Court’s precedent, and the decisions in other circuits, which held that requiring a defendant to participate in a mental health program is "unquestionably a judicial function." The error affected Heath’s substantial rights because absent the error, the district court, not the probation office, would have decided whether to incorporate mental health treatment in his sentence. "The fate of a defendant must rest with the district court, not the probation office." Finally the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
The Court rejected Heath’s argument that the district court had no authority to commit him, noting that probationers are often subject to limitations to which ordinary citizens are free.
The Court found that the Article III violation met all four prongs of the "plain error" test. The error was "plain" under the Court’s precedent, and the decisions in other circuits, which held that requiring a defendant to participate in a mental health program is "unquestionably a judicial function." The error affected Heath’s substantial rights because absent the error, the district court, not the probation office, would have decided whether to incorporate mental health treatment in his sentence. "The fate of a defendant must rest with the district court, not the probation office." Finally the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
The Court rejected Heath’s argument that the district court had no authority to commit him, noting that probationers are often subject to limitations to which ordinary citizens are free.
Wednesday, August 10, 2005
Ellis: False Statement about sex undisruptive
In U.S. v. Ellis, No. 05-10150 (Aug. 5, 2005), the Court (Tjoflat, Pryor, Alarcon b.d.) the court vacated an upward sentence departure imposed a Georgia district attorney convicted of making a false statement in response to an FBI investigator’s question whether he had ever had sex with a woman with past or pending criminal charges in his judicial circuit. (Ellis falsely answered: "No.").
The defendant was charged with a number of federal crimes, including civil rights violations, arising of alleged improper contact with a criminal defendant in his circuit. However, the defendant ultimately pled guilty to just one count, the false statement count. At sentencing, the district court imposed an upward sentence departure based on "disruption of a government function," namely the postponment of other criminal cases and the adverse effect on the integrity of the district attorney’s office.
The Court found that any disruption of a governmental function was factually and legally irrelevant to the false statement to the FBI. The false statement did not cause any disruption in the local district attorney’s office. Moreover, the Guidelines only authorize a departure for conduct underlying a charge dismissed as part of a plea agreement only to the extent necessary to reflect the seriousness of the offense. Here, the disruption of a governmental function did not shed additional light on the nature of the false statement offense. Hence, the departure was invalid.
The Court remanded the case for resentencing consistent with Booker.
The defendant was charged with a number of federal crimes, including civil rights violations, arising of alleged improper contact with a criminal defendant in his circuit. However, the defendant ultimately pled guilty to just one count, the false statement count. At sentencing, the district court imposed an upward sentence departure based on "disruption of a government function," namely the postponment of other criminal cases and the adverse effect on the integrity of the district attorney’s office.
The Court found that any disruption of a governmental function was factually and legally irrelevant to the false statement to the FBI. The false statement did not cause any disruption in the local district attorney’s office. Moreover, the Guidelines only authorize a departure for conduct underlying a charge dismissed as part of a plea agreement only to the extent necessary to reflect the seriousness of the offense. Here, the disruption of a governmental function did not shed additional light on the nature of the false statement offense. Hence, the departure was invalid.
The Court remanded the case for resentencing consistent with Booker.
Bobo: No Double Jeopardy Bar
In U.S. v. Bobo, No. 04-15028 (Aug. 9, 2005), on a defendant’s interlocutory appeal, the Court held that Double Jeopardy did not bar a reprosecution of a defendant after his original case was dismissed because of the indictment was insufficient to charge the charged offenses.
After a first prosecution was dismissed on appeal on defective indictment grounds, the district court denied the defendant’s Double Jeopardy-based motion to dismiss a second prosecution for the same offenses. The defendant immediately appealed. The Court first noted that although it ordinarily lacked jurisdiction over defendants’ appeals of interlocutory orders in criminal cases, an exception exists for non-frivolous appeals of claims based on Double Jeopardy. Otherwise, if the defendant were denied an appeal and forced to go through a trial, an important part of the Double Jeopardy protection would be lost.
The defendant argued that a footnote in the Court’s original opinion effectively found that the evidence at the first trial was insufficient to sustain a conviction. The defendant argued that this finding barred a reprosecution. The Court rejected this argument because its footnote did not amount to a holding on the insufficiency of the evidence. The Court acknowledged that under its own prudential rules, it should have reached the sufficiency issue in its earlier opinion. But it held that having not done so, it would not attach Double Jeopardy consequences to its prior decision.
After a first prosecution was dismissed on appeal on defective indictment grounds, the district court denied the defendant’s Double Jeopardy-based motion to dismiss a second prosecution for the same offenses. The defendant immediately appealed. The Court first noted that although it ordinarily lacked jurisdiction over defendants’ appeals of interlocutory orders in criminal cases, an exception exists for non-frivolous appeals of claims based on Double Jeopardy. Otherwise, if the defendant were denied an appeal and forced to go through a trial, an important part of the Double Jeopardy protection would be lost.
The defendant argued that a footnote in the Court’s original opinion effectively found that the evidence at the first trial was insufficient to sustain a conviction. The defendant argued that this finding barred a reprosecution. The Court rejected this argument because its footnote did not amount to a holding on the insufficiency of the evidence. The Court acknowledged that under its own prudential rules, it should have reached the sufficiency issue in its earlier opinion. But it held that having not done so, it would not attach Double Jeopardy consequences to its prior decision.
Tuesday, August 09, 2005
Campa: Cuban Spy Case Needed Another Venue
In U.S. v. Campa, No. 01-17176 (Aug. 9, 2005), the Court (Birch, Kravitch, Oakes, b.d.) held that the district court abused its discretion in denying a motion for a change of venue when the defendants, charged with being Cuban spies, were tried in Miami.
The Court stated: "Despite the district court’s numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was a unreasonable probability because of pervasive community prejudice. The entire community is sensitive to and permeated by concerns for Cuban exile population in Miami. Waves of public passion . . . flooded Miami both before and during this trial." The Court noted that the Elian Gonzalez case which overlapped with some of this case raised the community’s awareness of the concerns of the Cuban exile community. The Court pointed to news stories during the trial about the "paramilitary exile groups," and noted the "palpable" perception that these groups could harm jurors who rendered a verdict unfavorable to their views. The Court noted that one witness’ allusion to a defense’s counsel allegiance with Castro "only served to add fuel to the inflamed community passions."
The Court also noted the improper prosecutorial comments during closing arguments, and held: "Here, a new trial was mandated by the perfect storm created when the surge of community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references." [The prosecution had stated, inter alia, that the jurors would be abandoning their community unless they convicted the Cuban spies sent to "destroy the United States."].
The Court noted in closing that the Cuban-American community is a bastion of the traditional values that make America great, and said that its decision was consistent with these values.
The Court stated: "Despite the district court’s numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was a unreasonable probability because of pervasive community prejudice. The entire community is sensitive to and permeated by concerns for Cuban exile population in Miami. Waves of public passion . . . flooded Miami both before and during this trial." The Court noted that the Elian Gonzalez case which overlapped with some of this case raised the community’s awareness of the concerns of the Cuban exile community. The Court pointed to news stories during the trial about the "paramilitary exile groups," and noted the "palpable" perception that these groups could harm jurors who rendered a verdict unfavorable to their views. The Court noted that one witness’ allusion to a defense’s counsel allegiance with Castro "only served to add fuel to the inflamed community passions."
The Court also noted the improper prosecutorial comments during closing arguments, and held: "Here, a new trial was mandated by the perfect storm created when the surge of community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references." [The prosecution had stated, inter alia, that the jurors would be abandoning their community unless they convicted the Cuban spies sent to "destroy the United States."].
The Court noted in closing that the Cuban-American community is a bastion of the traditional values that make America great, and said that its decision was consistent with these values.
Friday, August 05, 2005
Jordi: Terrorism departure need not transcend national boundaries
In U.S. v. Jordi, No. 04-14046 (Aug. 1, 2005), the Court (Dubina, Wilson, Coogler b.d.), on a government appeal, on the sentencing of a defendant convicted of attempted arson of abortion clinics, reversed a district court’s order finding that it had no Guideline authority to depart upward under USSG § 3A1.4, Application Note 4, for a crime involving terrorist acts intending to intimidate or coerce a civilian population.
The Court noted that even post-Booker district courts were still required to consider the Guidelines, and to do so correctly. It therefore reviewed the district court’s interpretation of the Guideline Application Note at issue.
The district court had based its decision on the statutory definition of the federal crime of terrorism, which has as an element "conduct transcending national boudnaries" – conduct which was not present in Jordi’s crime. The Court, however, found consideration of the statutory definition of this offense unnecessary to determining whether the Guidelines encouraged a departure in these circumstances. The Court instead looked to the language of the Guideline Application Note. Under this language, Jordi qualified for an upward departure. The Court therefore remanded the case for resentencing.
The Court noted that even post-Booker district courts were still required to consider the Guidelines, and to do so correctly. It therefore reviewed the district court’s interpretation of the Guideline Application Note at issue.
The district court had based its decision on the statutory definition of the federal crime of terrorism, which has as an element "conduct transcending national boudnaries" – conduct which was not present in Jordi’s crime. The Court, however, found consideration of the statutory definition of this offense unnecessary to determining whether the Guidelines encouraged a departure in these circumstances. The Court instead looked to the language of the Guideline Application Note. Under this language, Jordi qualified for an upward departure. The Court therefore remanded the case for resentencing.
Monday, August 01, 2005
Hernandez: highway speeding detention not unreasonable
In U.S. v. Hernandez, No. 04-11776 (July 29, 2005), the Court (Edmondson, Dubina, Hull) held that a traffic stop did not result in an unconstitutional seizure, when the police officer became suspicious in response to questioning, and detained the defendant for 17-minutes during questioning before conducting a consensual search of the vehicle – a search which uncovered narcotics in a hidden compartment of the vehicle.
The Court noted the following circumstances which supported reasonable suspicion on the part of the officer who stopped defendant’s vehicle for speeding at 3:02 a.m. on an Alabama highway: (1) the implausible excuse for speeding (looking for a restroom for diarhea when the vehicle had just missed a rest station, (2) empty food containers in the vehicle, consistent with the practice of drug traffickers who do not want to stop for food and leave their vehicle unattended, (3) discrepancies in the stories about the trip’s length and purpose, (4) abnormal nervousness in the detainee, (5) nonstop travel at night in severe weather, (6) lack of knowledge of the trip’s destination, (7) travel between two main source cities for narcotics, (8) minimal luggage.
The Court noted that under Muelher v. Mena, 125 S.Ct. 1465 (2005), the length of a detention, not the unrelatedness of the questioning to the reason for the stop, is what makes a detention unreasonable. The Court further noted that a 17-minute stop would not, standing alone, likely be deemed too long to be unreasonable, even if, as in this case, it was justified by the evasive answers to police questioning.
The Court noted the following circumstances which supported reasonable suspicion on the part of the officer who stopped defendant’s vehicle for speeding at 3:02 a.m. on an Alabama highway: (1) the implausible excuse for speeding (looking for a restroom for diarhea when the vehicle had just missed a rest station, (2) empty food containers in the vehicle, consistent with the practice of drug traffickers who do not want to stop for food and leave their vehicle unattended, (3) discrepancies in the stories about the trip’s length and purpose, (4) abnormal nervousness in the detainee, (5) nonstop travel at night in severe weather, (6) lack of knowledge of the trip’s destination, (7) travel between two main source cities for narcotics, (8) minimal luggage.
The Court noted that under Muelher v. Mena, 125 S.Ct. 1465 (2005), the length of a detention, not the unrelatedness of the questioning to the reason for the stop, is what makes a detention unreasonable. The Court further noted that a 17-minute stop would not, standing alone, likely be deemed too long to be unreasonable, even if, as in this case, it was justified by the evasive answers to police questioning.
Thursday, July 28, 2005
Searcy: Enticing Minor to Sex Qualifies as "Crime of Violence"
In U.S. v. Searcy, No. 03-16282 (July 28, 2005), the Court (Dubina, Wilson, Lawson b.d.) affirmed the sentence of a defendant convicted of using the internet to induce a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b).
The Court rejected the challenge to the sentencing court’s use of a prior § 2422(b) conviction as a "crime of violence" for career offender enhancement purposes. The Court noted that the definition of a "crime of violence" referred to a crime involved a serious potential risk of injury. Citing the legislative history of § 2422(b) and the caselaw of other Circuits, the Court found that offenses involving sex crimes against minors always involve a risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.
The Court rejected the challenge to the sentencing court’s use of a prior § 2422(b) conviction as a "crime of violence" for career offender enhancement purposes. The Court noted that the definition of a "crime of violence" referred to a crime involved a serious potential risk of injury. Citing the legislative history of § 2422(b) and the caselaw of other Circuits, the Court found that offenses involving sex crimes against minors always involve a risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.
Afanasjev: Unsworn indictment suffices for extradition
In Afanasjev v. Hurlburt, No. 04-13303 (July 26, 2005), the Court (Black, Hull, Hodges b.d.), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241, and upheld an order of extradition to Lithuania.
The Court rejected the argument that the unsworn 106-page Lithuanian indictment, which summarized statements made by victims and other witnesses, was insufficient evidence to establish probable cause for extradition. The Court stated that evidence presented for extradition need not be admissible at trial, pointing out that the unsworn statements of absent witnesses may be acted upon by the committing magistrate. The Court pointed out that the indictment lists the specific dates of events, the names of witnesses and victims, and the amount of money involved. The Court noted that the Magistrate compared witness statements with each fraud count, and ensured there was adequate evidence to support each count. The Court further noted that the fact of the defendants flight from Lithuania before trial on the fraud charges could also support probable cause.
The Court rejected the argument that the unsworn 106-page Lithuanian indictment, which summarized statements made by victims and other witnesses, was insufficient evidence to establish probable cause for extradition. The Court stated that evidence presented for extradition need not be admissible at trial, pointing out that the unsworn statements of absent witnesses may be acted upon by the committing magistrate. The Court pointed out that the indictment lists the specific dates of events, the names of witnesses and victims, and the amount of money involved. The Court noted that the Magistrate compared witness statements with each fraud count, and ensured there was adequate evidence to support each count. The Court further noted that the fact of the defendants flight from Lithuania before trial on the fraud charges could also support probable cause.
Magluta: Co-Conspirator Hearsay Error
In U.S. v. Magluta, No. 03-10694 (July 27, 2005), the Court (Carnes, Cox, Mills b.d.) affirmed all convictions except one for obstruction of justice through juror bribery. The Court rejected Maglutta’s challenge to his sentence, but vacated the sentence for resentencing in light of whatever disposition occurred with regard to the now-vacated obstruction count.
The Court rejected the argument that Magluta’s prior acquittal on drug trafficking charges barred the introduction of evidence relating to these offenses at his subsequent money laundering trial. The Court noted that, for jury acquittals, the doctrine of collateral estoppel only bars reprosecution if the legal elements of the offense overlap and there is "factual identity" of the issues. Here, the elements did not overlap, because the money laundering charges did not require the government to prove that Maglutta himself engaged in drug trafficking: "As far as the money laundering statute is concerned, laundering someone else’s illegal proceeds is just as bad as laundering your own."
The Court also rejected Magluta’s attack on the sufficiency of the evidence supporting his money laundering convictions. Magluta argued that the laundered money lost its "tainted" character because, through the auspices of a government informant, it passed under the control of law enforcement. While stopping short of holding that this argument had no merit, the Court held that given the limited control of the government over the laundered funds in this case, the level of involvement was not enough to undermine the conviction.
The Court also rejected the argument that since Magluta used the proceeds of unlawful activity to pay his lawyers, here was merely spending the money, not concealing its source. However, Magluta’s use of a false name on the foreign bank account on which the checks were drawn showed that he went to "great pains" to conceal the fact that he was using drug proceeds to pay his lawyers.
The Court found merit in Magluta’s challenge to the admission in evidence, in the count for obstruction of justice through bribery of a juror, of the allegedly-bribed juror’s statement to a government informant -- two and half years after the bribery -- that he would keep quiet about the bribe. The statement had been admitted over a hearsay objection as a co-conspirator statement made in furtherance of the conspiracy. Magluta claimed that the statement was made well after the conspiracy ended. The Court noted that keeping an initial conspiracy secret is not part of the conspiracy, and concealing the source of the money when the juror made purchases was not part of the initial conspiracy either. The Court found that the error in admitting the statement was not harmless, as it directly tied Magluta to the bribe.
The Court rejected Magluta’s argument that documents were illegally seized from the trunk of a vehicle driven by Bonachea, a Magluta associate, based on an anonymous phone call to the U.S. Attorney alerting him to the existence of incriminating documents in the trunk. Bonachea’s vehicle was stopped for speeding, and a drug dog alerted for marijuana inside the car.
Assuming, without deciding, that Magluta had standing to contest the search of Bonachea’s vehicle, the Court found that the officers had probable cause to to believe that the trunk contained evidence of a crime. The anonymous tip was entitled to substantial weight, because it was correct as to several specifics relating to Bonachea, her schedule and her vehicle.
The Court found no error in the dollar drug amount imputed to Magluta for sentencing purposes. The Court pointed that any error was harmless in light of the sentencing court’s stated intention in the alternative to depart upward to reflect the "anomaly" of Magluta’s prior acquittal.
The Court also rejected the argument that Booker had undermined the Guideline rule which requires sentences to run consecutively to achieve the range set the guidelines. The Court noted that Booker had merely made the Guidelines advisory, and did not affect the validity of Guideline rule.
The Court rejected the argument that Magluta’s prior acquittal on drug trafficking charges barred the introduction of evidence relating to these offenses at his subsequent money laundering trial. The Court noted that, for jury acquittals, the doctrine of collateral estoppel only bars reprosecution if the legal elements of the offense overlap and there is "factual identity" of the issues. Here, the elements did not overlap, because the money laundering charges did not require the government to prove that Maglutta himself engaged in drug trafficking: "As far as the money laundering statute is concerned, laundering someone else’s illegal proceeds is just as bad as laundering your own."
The Court also rejected Magluta’s attack on the sufficiency of the evidence supporting his money laundering convictions. Magluta argued that the laundered money lost its "tainted" character because, through the auspices of a government informant, it passed under the control of law enforcement. While stopping short of holding that this argument had no merit, the Court held that given the limited control of the government over the laundered funds in this case, the level of involvement was not enough to undermine the conviction.
The Court also rejected the argument that since Magluta used the proceeds of unlawful activity to pay his lawyers, here was merely spending the money, not concealing its source. However, Magluta’s use of a false name on the foreign bank account on which the checks were drawn showed that he went to "great pains" to conceal the fact that he was using drug proceeds to pay his lawyers.
The Court found merit in Magluta’s challenge to the admission in evidence, in the count for obstruction of justice through bribery of a juror, of the allegedly-bribed juror’s statement to a government informant -- two and half years after the bribery -- that he would keep quiet about the bribe. The statement had been admitted over a hearsay objection as a co-conspirator statement made in furtherance of the conspiracy. Magluta claimed that the statement was made well after the conspiracy ended. The Court noted that keeping an initial conspiracy secret is not part of the conspiracy, and concealing the source of the money when the juror made purchases was not part of the initial conspiracy either. The Court found that the error in admitting the statement was not harmless, as it directly tied Magluta to the bribe.
The Court rejected Magluta’s argument that documents were illegally seized from the trunk of a vehicle driven by Bonachea, a Magluta associate, based on an anonymous phone call to the U.S. Attorney alerting him to the existence of incriminating documents in the trunk. Bonachea’s vehicle was stopped for speeding, and a drug dog alerted for marijuana inside the car.
Assuming, without deciding, that Magluta had standing to contest the search of Bonachea’s vehicle, the Court found that the officers had probable cause to to believe that the trunk contained evidence of a crime. The anonymous tip was entitled to substantial weight, because it was correct as to several specifics relating to Bonachea, her schedule and her vehicle.
The Court found no error in the dollar drug amount imputed to Magluta for sentencing purposes. The Court pointed that any error was harmless in light of the sentencing court’s stated intention in the alternative to depart upward to reflect the "anomaly" of Magluta’s prior acquittal.
The Court also rejected the argument that Booker had undermined the Guideline rule which requires sentences to run consecutively to achieve the range set the guidelines. The Court noted that Booker had merely made the Guidelines advisory, and did not affect the validity of Guideline rule.
Tuesday, July 19, 2005
Taylor: Unproven complaints vs. police
In U.S. v. Taylor, No. 04-10667 (July 19, 2005), the Court (Birch, Carnes, Roney) affirmed convictions and a 322-month sentence imposed for being a felon in possession of a firearm, possesion of marihuana, and using a firearm during a drug trafficking offense.
The Court rejected the argument that the trial court should have allowed the defendant to introduce evidence of citizen complaints regarding the arresting police officer’s history of planting evidence, and brutality. The Court noted that all the incidents were "unproven." Citing U.S. v. Novaton, the Court noted that unproven allegations are not proper impeachment evidence. The Court further noted that the defendant had not proferred testimony of witnesses who could testify about specific misconduct. Moreover, brutality complaints were irrelevant to the drug and gun possession charges against Taylor.
The Court also rejected a challenge to the exclusion of background evidence concerning Taylor’s homelessness, finding the admission of such evidence within the broad discretion of the district court.
The Court further rejected Taylor’s complaint that he was not provided with discovery of a jailhouse’s companion’s testimony concerning Taylor’s confession of the crime. The Court pointed out that Fed. R. Crim. P. 16 only requires disclosure of witness statements given to the government under interrogation. Here, the statement was not given to the government, and it was not made in response to interrogation.
The Court also rejected the argument that introduction of Taylor’s prior gun conviction violated Rule 404(b). The Court found that this evidence, subject to the court’s limiting instruction, was admissible on the gun counts against Taylor.
The Court found no plain error under Booker in the sentence, noting that there was no evidence a lesser sentence would have been imposed had the sentencing court treated the Guidelines as advisory, not mandatory.
The Court rejected the argument that the trial court should have allowed the defendant to introduce evidence of citizen complaints regarding the arresting police officer’s history of planting evidence, and brutality. The Court noted that all the incidents were "unproven." Citing U.S. v. Novaton, the Court noted that unproven allegations are not proper impeachment evidence. The Court further noted that the defendant had not proferred testimony of witnesses who could testify about specific misconduct. Moreover, brutality complaints were irrelevant to the drug and gun possession charges against Taylor.
The Court also rejected a challenge to the exclusion of background evidence concerning Taylor’s homelessness, finding the admission of such evidence within the broad discretion of the district court.
The Court further rejected Taylor’s complaint that he was not provided with discovery of a jailhouse’s companion’s testimony concerning Taylor’s confession of the crime. The Court pointed out that Fed. R. Crim. P. 16 only requires disclosure of witness statements given to the government under interrogation. Here, the statement was not given to the government, and it was not made in response to interrogation.
The Court also rejected the argument that introduction of Taylor’s prior gun conviction violated Rule 404(b). The Court found that this evidence, subject to the court’s limiting instruction, was admissible on the gun counts against Taylor.
The Court found no plain error under Booker in the sentence, noting that there was no evidence a lesser sentence would have been imposed had the sentencing court treated the Guidelines as advisory, not mandatory.
Holt: no writ of audita querela
In U.S. v. Holt, No. 04-15848 (July 19, 2005), the Court (Tjoflat, Birch, Dubina) denied an inmate’s Booker-based writ of audita querela which challenged a sentence.
At common law, a writ of audita querela – Latin for "the complaint having been heard" – allowed a challenge to a judgment after it was rendered because of some defense or discharge arising afterward. The Court noted, however, that such common law writs only survive the habeas corpus statutes to the extent that they fill gaps in these statutes. Here, there was no gap to be filed, because § 2255 provides a specific remedy for Holt’s type of challenge, namely a constitutional attack on his sentence. Therefore, no writ of audita querela could be entertained.
Further, because Holt had previously filed a first § 2255 motion, his current proceeding, converted into a § 2255 motion, was deemed "second and successive" under the AEDPA. As such, it had to be dismissed because Holt failed to obtain the requisite authorization from the court of appeals to initiate a second or successive § 2255 proceeding.
At common law, a writ of audita querela – Latin for "the complaint having been heard" – allowed a challenge to a judgment after it was rendered because of some defense or discharge arising afterward. The Court noted, however, that such common law writs only survive the habeas corpus statutes to the extent that they fill gaps in these statutes. Here, there was no gap to be filed, because § 2255 provides a specific remedy for Holt’s type of challenge, namely a constitutional attack on his sentence. Therefore, no writ of audita querela could be entertained.
Further, because Holt had previously filed a first § 2255 motion, his current proceeding, converted into a § 2255 motion, was deemed "second and successive" under the AEDPA. As such, it had to be dismissed because Holt failed to obtain the requisite authorization from the court of appeals to initiate a second or successive § 2255 proceeding.
Smith: Applying Levy
In U.S. v. Smith, No. 03-15299 (July 18, 2005), the Court (Hull, Marcus, Hancock b.d.), after a remand from the Supreme Court for further consideration in light of Booker, applied its Levy rule and held that Smith was not entitled to raise a Booker challenge because he failed to raise the issue in his initial brief on direct appeal. The Court explained that the Supreme Court had applied its own prudential rule in Pasquantino in declining to consider a Booker issue, because the issue was not raised in the Court of Appeals or in a brief in the Supreme Court. Further, the Court noted that it was not "unduly harsh" or "overly burdensome" to require counsel to raise issues in their initial brief, even issues that appear foreclosed by circuit precedent.
Monday, July 18, 2005
Conklin: No habeas relief on "new evidence"
In In re Conklin, No. 05-13817 (July 12, 2005), the Court (Edmondson, Barkett, Wilson) (2-1, Barkett, J., dissenting), denied the habeas petition of a Georgia inmate facing execution.
Conklin sought to justify bringing a second habeas petition on the ground that "new evidence," in the form of a medical examiner’s opinion, was suppressed at his trial. The Court rejected this argument, finding that even in light of this evidence Conklin could not have met AEDPA’s stringent test of showing that no reasonable factfinder would have imposed the death penalty. The Court further noted that Conklin could in fact have presented this "new evidence" in his first habeas petition.
The Court expressed "misgivings" about the trial court’s constraints on the defense’s ability to prepare for trial and to obtain an expert witness, but found that it could not rule for Conklin without further guidance from the Supreme Court on the scope of a defendant’s Sixth Amendment right to expert assistance in putting on a defense of self-defense.
Conklin sought to justify bringing a second habeas petition on the ground that "new evidence," in the form of a medical examiner’s opinion, was suppressed at his trial. The Court rejected this argument, finding that even in light of this evidence Conklin could not have met AEDPA’s stringent test of showing that no reasonable factfinder would have imposed the death penalty. The Court further noted that Conklin could in fact have presented this "new evidence" in his first habeas petition.
The Court expressed "misgivings" about the trial court’s constraints on the defense’s ability to prepare for trial and to obtain an expert witness, but found that it could not rule for Conklin without further guidance from the Supreme Court on the scope of a defendant’s Sixth Amendment right to expert assistance in putting on a defense of self-defense.
White: Booker inapplicable to revocation supervised release
In U.S. v. White, No. 04-13442 (July 14, 2005), the Court (Carnes, Marcus, Fay) rejected a Booker-based challenge to a sentence imposed for revocation of supervised release.
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."
Rivers fails Johnson habeas diligence test
In Rivers v. U.S., No. 03-11734 (July 14, 2005), the Court (Anderson, Barkett, Wilson), following a remand from the Supreme Court for further consideration of its denial of habeas relief in light of Johnson v. U.S., 125 S.Ct. 1571 (2005), reaffirmed its prior decision.
The Court recognized that Johnson had undermined some of the prior basis for its denial of habeas relief under the AEDPA statute of limitations. The Court noted, however, that Johnson required habeas petitioners who challenged their sentence on the basis of a vacatur of a state conviction had to show "due diligence" in obtaining the vacatur. Here, Rivers did not seek vacatur of his prior state conviction until more than four years after entry of the federal sentence which had been enhanced on the basis of this (now-vacated) prior state conviction. This precluded him from obtaining federal habeas relief.
The Court recognized that Johnson had undermined some of the prior basis for its denial of habeas relief under the AEDPA statute of limitations. The Court noted, however, that Johnson required habeas petitioners who challenged their sentence on the basis of a vacatur of a state conviction had to show "due diligence" in obtaining the vacatur. Here, Rivers did not seek vacatur of his prior state conviction until more than four years after entry of the federal sentence which had been enhanced on the basis of this (now-vacated) prior state conviction. This precluded him from obtaining federal habeas relief.
McNair: no habeas relief based on bible in jury room
In McNair v. Campbell, No. 04-11400 (July 13, 2005), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1990 murder.
The Court held that the defendant was not entitled to an evidentiary hearing concerning his ineffective assistance of counsel claim, and that the trial court erred in relying on evidence developed at its federal evidentiary hearing in support of its decision granting habeas relief. The Court pointed out that the defendant had not been "diligent" in his post-conviction proceedings in state court in developing evidence in support of an ineffectiveness claim. Consequently, he was now barred under 28 U.S.C. sec. 2254(e)(2) from attempting to develop this evidence later, in federal court.
The Court also rejected McNair’s challenge to his conviction based on the fact that the jury took a Bible back to the jury room. The Court found that this claim was not preserved in state court, and even had it been, it would not have entitled him to prevail in light of the strong evidence against him. The Court rejected the argument that the State had waived its reliance on the procedural bar, noting that under AEDPA, an affirmative waiver was required – which did not occur here.
Finally, the Court rejected the Batson challenge to the jury selection, finding no impropriety in the striking of individual jurors, and no evidence that an alleged practice by the local prosecutor of systematically striking blacks affected McNair’s jury selection.
The Court held that the defendant was not entitled to an evidentiary hearing concerning his ineffective assistance of counsel claim, and that the trial court erred in relying on evidence developed at its federal evidentiary hearing in support of its decision granting habeas relief. The Court pointed out that the defendant had not been "diligent" in his post-conviction proceedings in state court in developing evidence in support of an ineffectiveness claim. Consequently, he was now barred under 28 U.S.C. sec. 2254(e)(2) from attempting to develop this evidence later, in federal court.
The Court also rejected McNair’s challenge to his conviction based on the fact that the jury took a Bible back to the jury room. The Court found that this claim was not preserved in state court, and even had it been, it would not have entitled him to prevail in light of the strong evidence against him. The Court rejected the argument that the State had waived its reliance on the procedural bar, noting that under AEDPA, an affirmative waiver was required – which did not occur here.
Finally, the Court rejected the Batson challenge to the jury selection, finding no impropriety in the striking of individual jurors, and no evidence that an alleged practice by the local prosecutor of systematically striking blacks affected McNair’s jury selection.
Levy Reaffirms Levy
In U.S. v. Levy, No. 01-17133 (July 12, 2005), the Court (Anderson, Hull, Pryor), on remand from the Supreme Court for further consideration in light of Booker, reaffirmed its prior reported decisions in the case, and held that a defendant whose case was on appeal when Booker was decided waived a Booker challenge when he failed to raise a Booker claim in an initial brief on appeal.
The Court pointed out that the Booker opinion itself stated that the retroactive application of its holding to cases then pending on direct review would depend on "ordinary prudential doctrines." The Court further pointed out that in two recent cases, Shea v. Lousiana and Pasquantino v. United States, the Supreme Court recognized the applicability of ordinary rules of waiver to cases pending on direct review. "It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely [Booker] claim, there is no reason why this Court should be powerless [to do so too]." The Court further noted that parties could, and did, challenge the constitutionality of the Guidelines pre-Booker, and reasoned that its waiver rule was not, therefore, unduly harsh.
The Court pointed out that the Booker opinion itself stated that the retroactive application of its holding to cases then pending on direct review would depend on "ordinary prudential doctrines." The Court further pointed out that in two recent cases, Shea v. Lousiana and Pasquantino v. United States, the Supreme Court recognized the applicability of ordinary rules of waiver to cases pending on direct review. "It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely [Booker] claim, there is no reason why this Court should be powerless [to do so too]." The Court further noted that parties could, and did, challenge the constitutionality of the Guidelines pre-Booker, and reasoned that its waiver rule was not, therefore, unduly harsh.
King: Grief counseling not includable in restitution
In U.S. v. King, No. 04-14021 (11th Cir. June 30, 2005), the Court (Tjoflat, Kravtich, and Mills, b.d.) vacated and remanded a $21k order of restitution against a defendant convicted of attempted bank robbery based on the government's concession that more than $11k of the ordered restitution represented the bank's cost for providing grief counseling to its employees, something not authorized by the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. However, on plain error review, the Court rejected Mr. King's claim that the ordered restitution violated his Sixth Amendment rights since the order was based on facts not admitted by him nor proven to a jury beyond a reasonable doubt. The Court noted that neither it nor the Supreme Court had held that Blakely/Booker applied to an order of restitution and that most of the other circuits had rejected such a claim. The Court thus concluded that Mr. King failed to demonstrate that the claimed error was plain.
Philipps: Attempt qualifies as drug conviction
In United States v. Phillips, No. 04-13720 (11th Cir. June 22, 2005), the Court (Carnes, Marcus, Kravitch) affirmed a seventy-month sentence imposed on a defendant who entered a plea of guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. The Court resolved two issues of first impression in the Circuit. First, the Court rejected Mr. Phillips' claim that his prior state conviction for attempted sale of a controlled substance did not qualify as a drug trafficking offense under U.S.S.G. § 2L1.2. The Court noted that the commentary to § 2L1.2 expressly included "attempting to commit such [drug trafficking] offenses," in the definition of drug trafficking offenses that warrant a 16-level increase. Next, the Court rejected Mr. Phillips' claim that his state term of parole was prematurely terminated when he was deported. Mr. Phillips was released on parole in October 2002 and deported in December 2002. His term of parole was set to expire in February 2004. Mr. Phillips unlawfully reentered the United States in January 2004. The district court added two criminal history points to the guidelines calculation under § 4A1.1(d) because the offense was committed while Mr. Phillips was under a "criminal justice sentence." The Court noted that the commentary to that section defined a criminal justice sentence to include supervisory sentences "although active supervision is not required." The Court thus reasoned that Mr. Phillips' term of parole continued after his deportation even though he was not being actively supervised, and that the district court properly added the two criminal history points. Finally, the Court rejected a preserved Booker claim noting that enhancements based on prior convictions do not implicate the Sixth Amendment. As to the statutory Booker error, the Court held that the error was harmless because the district court had issued an identical 70-month alternative sentence in case the guidelines were voided.
Cartwright: Captain need not be sole captain
In United States v. Cartwright, No. 04-13398 (11th Cir. June 24, 2005), the Court (Anderson, Carnes, Pryor), affirmed the 87-month sentence for a defendant who entered a plea of guilty to conspiracy to possess with intent to distribute one thousand kilograms of marijuana and a detectable amount of hashish. Mr. Cartwright and two other men were intercepted by the United States Coast Guard aboard a vessel northeast of Cuba. The Court rejected Mr. Cartwright's contention that the district court improperly enhanced his guidelines sentence under U.S.S.G. § 2D1.1(b)(2)(B) finding that Mr. Cartwright "acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer" of the vessel in question. Mr. Cartwright argued that he was never officially named captain of the vessel and that he had no license or special skill as a captain. The Court rejected the invitation to establish a formal definition of captain or pilot of a vessel and instead noted that Mr. Cartwright's admissions (he was a lifelong fisherman, he drove the boat as it left Jamaica, he was driving the boat when it was intercepted, he followed instructions on where to steer the boat, and he used a compass to navigate) supported the enhancement. The fact that all three men took turns driving the boat on its voyage was immaterial. The Court also ruled that it lacked jurisdiction to review the district court's ruling on his Rule 35 motion which was filed on the same day as his notice of appeal because no independent notice of appeal was filed from the denial of the Rule 35 motion. Finally, on plain error review, the Court held that Mr. Cartwright failed to demonstrate that the Booker error affected substantial rights. [Note: The Court reviewed the Booker error for plain error even though Mr. Cartwright raised a Blakely claim in his Rule 35 motion.]
Mejia: Booker error was harmless
In U.S. v. Mejia-Giovani, No. 04-16138 (July 15, 2005), the Court (Anderson, Carnes, Pryor) held that any Booker error that occurred at sentencing in imposing a middle of the Guideline sentence was harmless, when the sentencing judge stated at sentencing that its patience was running thin with respect to the defendant's pattern of illegal re-entry, and warned of a possible upward departure. "Based on this record, we can say with fair assurance that Mejia-Giovani would not have received a lesser sentence in the absence of statutory [Booker] error."
Wednesday, June 22, 2005
Pipkins: Levy applied on remand from Supreme Court
In U.S. v. Pipkins, No. 02-14306 (June 20, 2005), the Court reaffirmed its Levy rule, and, on remand from the Supreme Court for further consideration in light of Booker, held that a defendant could not raise a Booker challenge to his sentence for the first time in an en banc rehearing petition.
The Court recognized that prior to the Supreme Court’s decision in Blakely, its caselaw did not support a Blakely-type challenge to a sentence. "Even if our precedent at the time foreclosed their argument, the Defendants still had to raise this issue in their initial brief and assert that our precedent was wrongly decided in order for us to consider it. It is through this process that the law evolves."
The Court recognized that prior to the Supreme Court’s decision in Blakely, its caselaw did not support a Blakely-type challenge to a sentence. "Even if our precedent at the time foreclosed their argument, the Defendants still had to raise this issue in their initial brief and assert that our precedent was wrongly decided in order for us to consider it. It is through this process that the law evolves."
Kelley: Bank robbery by intimidation
In U.S. v. Kelley, No 04-13002 (June 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) rejected sufficiency of the evidence challenges to a conviction for bank robbery by "intimidation" in violation of 18 U.S.C. § 2113(a).
No weapon or note was used in the robbery. But the defendant slammed onto the teller counter hard enough that he was heard from another room. One teller was within arm’s length as cash was removed from another teller’s cash drawer. The tellers were so frightened that they failed to activate the bank’s silent alarm. Based on these facts, the Court concluded that the tellers were intimidated.
The Court also rejected the argument that the facts did not establish the taking of money "from the person or presence of another." One bank teller was within arm’s length. This fact "easily satisfied" the statutory element.
Finally, the Court rejected the argument that inconsistencies in the testimony of prosecution witnesses, and the testimony of defense witnesses, made the facts insufficient to sustain the bank robbery conviction. The Court noted that the jury was free to resolve the inconsistency in the government’s favor. Further, the defendant’s employer was unsure whether the defendant was at work on the date of the robbery, and his testimony therefore did not undermine the government’s case.
No weapon or note was used in the robbery. But the defendant slammed onto the teller counter hard enough that he was heard from another room. One teller was within arm’s length as cash was removed from another teller’s cash drawer. The tellers were so frightened that they failed to activate the bank’s silent alarm. Based on these facts, the Court concluded that the tellers were intimidated.
The Court also rejected the argument that the facts did not establish the taking of money "from the person or presence of another." One bank teller was within arm’s length. This fact "easily satisfied" the statutory element.
Finally, the Court rejected the argument that inconsistencies in the testimony of prosecution witnesses, and the testimony of defense witnesses, made the facts insufficient to sustain the bank robbery conviction. The Court noted that the jury was free to resolve the inconsistency in the government’s favor. Further, the defendant’s employer was unsure whether the defendant was at work on the date of the robbery, and his testimony therefore did not undermine the government’s case.
McGough: Community Caretaker Exception Inapplicable
In U.S. v. McGough, No. 04-12077 (June 15, 2005), the Court (Cox, Edmondson, Birch) held that the "community caretaker" exception to the Fourth Amendment prohibition on warrantless searches of home did not permit police to enter into an apartment without a warrant and without consent. The Court held that the defense motion to suppress the marijuana and firearm found in the apartment should have been granted, and reversed the conviction.
The police arrived at the home in response to a telephone call from the defendant’s scared 5-year old daughter, whom the defendant had locked in the apartment when he went out to buy pizza. The police unlocked the door, placed McGough under arrest for reckless conduct, and called the daughter’s aunt. While outside the apartment, the police noticed a heavy burglar door and a mounted surveillance camera. They asked the defendant for consent to search his home, which he declined. While waiting for the aunt to arrive, the police entered the apartment, ostensibly to help the daughter find some shoes, and found a firearm and marijuana. The police then sought a warrant and seized the marihuana and fiream, and another firearm, and more marihuana.
The Court recognized a "community caretaker" exception to the warrant requirement of the Fourth Amendment. This exception applies when "exigent circumstances" require police to respond to a situation at a home. The Court found no such circumstances in this case. "There was no immediate threat." The daughter’s need for her shoes was not a compelling enough exigency to justify a warrantless entry by police into McGough’s home.
The Court further found that the good faith exception to the exclusionary rule did not apply. This exception applies when a warrant issues after officers engage in "objectively reasonable law enforcement activity." Here, the warrant issued after police engaged in an unlawful entry. "In such a situation, the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling." Consequently, the evidence obtained as a result of the unlawful entry must be suppressed.
The police arrived at the home in response to a telephone call from the defendant’s scared 5-year old daughter, whom the defendant had locked in the apartment when he went out to buy pizza. The police unlocked the door, placed McGough under arrest for reckless conduct, and called the daughter’s aunt. While outside the apartment, the police noticed a heavy burglar door and a mounted surveillance camera. They asked the defendant for consent to search his home, which he declined. While waiting for the aunt to arrive, the police entered the apartment, ostensibly to help the daughter find some shoes, and found a firearm and marijuana. The police then sought a warrant and seized the marihuana and fiream, and another firearm, and more marihuana.
The Court recognized a "community caretaker" exception to the warrant requirement of the Fourth Amendment. This exception applies when "exigent circumstances" require police to respond to a situation at a home. The Court found no such circumstances in this case. "There was no immediate threat." The daughter’s need for her shoes was not a compelling enough exigency to justify a warrantless entry by police into McGough’s home.
The Court further found that the good faith exception to the exclusionary rule did not apply. This exception applies when a warrant issues after officers engage in "objectively reasonable law enforcement activity." Here, the warrant issued after police engaged in an unlawful entry. "In such a situation, the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling." Consequently, the evidence obtained as a result of the unlawful entry must be suppressed.
Tuesday, June 21, 2005
Bradshaw v. Stumpf: Inconsistency on triggerman's identity
In Bradshaw v. Stumpf, No. 04-637 (June 13, 2005), the Supreme Court held that a defendant entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, when the elements of the crime were explained to the defendant by his competent defense counsel, and where the defendant so confirmed on the record.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.
Monday, June 20, 2005
Rompilla: Failure to consult court records is ineffective assistance
In Rompilla v. Beard, No. 04-5462 (June 20, 2005), the Supreme Court held that capital counsel’s assistance in the penalty phase was constitutionally ineffective when he failed to examine the material he knew the prosecutor would rely on as evidence of aggravation. Counsel failed to examine the court file on Rompilla’s prior felony convictions – a file which was readily available. This was objectively unreasonable, and counsel’s consultation with the defendant and his family was not a sufficient substitute. The Court held that the lawyer’s lapse prejudiced the defendant, because the court record would have unearthed mitigation leads – such as the defendant’s mental disorders and organic brain damage and childhood problems probably related to fetal alcohol syndrome.
Tuesday, June 14, 2005
Matthews: 404(b) reversal
In U.S. v. Matthews, 2005 WL 1334341 (June 8, 2005), the Court (Tjoflat, Hill, Granade b.d.) reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b).
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.
Thursday, May 26, 2005
Henderson: Polygraph evidence can be excluded
In U.S. v. Henderson, No. 04-11545 (Barkett, Farris, b.d.) (Hill dissenting), the Court affirmed a conviction of a police officer for pistol whipping a suspect, rejecting a number of challenges to evidentiary rulings.
The Court rejected the argument that the trial court should not have excluded proffered evidence concerning a witness’ bias. The Court noted that the evidence might not have been properly proffered, but ruled in any event that that the danger of unfair prejudice outweighed the evidence’s probative value.
The Court also rejected the argument that the trial court should have excluded a witness’ testimony about his belief in the credibility of the victim’s account of events. The Court recognized that ordinarily such evidence is inadmissible. However, in this case the government was attempting to respond to questions on cross-examination that attempted to discredit the witness for changing his mind about which person he believed. The evidence was admitted not to bolster the credibility of another witness, but to explain why this witness changed his mind as to who he believed.
The Court agreed with the defendant that the victim’s treating physician should not have been permitted to testify regarding his opinion regarding the cause of the jaw injury. Such questions are in the nature of "hypotheticals" reserved for expert witnesses. However, the Court found the error to be harmless in light of the other evidence of guilt.
The Court upheld the exclusion of evidence of two polygraph exams of the defendant which supported his defense. The Court found the exclusion of this evidence proper under Daubert. The Court noted that the theories of polygraphy could not adequately be tested. Further, the error rate for polygraphs "is not much more reliable than random chance." The exclusion therefore was not an abuse of discretion.
The Court further rejected a challenge to the policy of the Middle District of Florida of excluding police officers from jury venires. The Court noted that enforcement officers compose less than 0.55% of eligible jurors, and noted the significant state interest in having enforcement officers at work, not sitting on juries.
Turning to Henderson’s sentence, the Court found Booker "plain error." The district judge imposed the lowest possible sentence and staetd that she thought the sentence was too high but was bound by the guidelines in any case. In these circumstances, the defendant has met his burden of proving prejudice. The Court remanded the case for resentencing.
The Court rejected the argument that the trial court should not have excluded proffered evidence concerning a witness’ bias. The Court noted that the evidence might not have been properly proffered, but ruled in any event that that the danger of unfair prejudice outweighed the evidence’s probative value.
The Court also rejected the argument that the trial court should have excluded a witness’ testimony about his belief in the credibility of the victim’s account of events. The Court recognized that ordinarily such evidence is inadmissible. However, in this case the government was attempting to respond to questions on cross-examination that attempted to discredit the witness for changing his mind about which person he believed. The evidence was admitted not to bolster the credibility of another witness, but to explain why this witness changed his mind as to who he believed.
The Court agreed with the defendant that the victim’s treating physician should not have been permitted to testify regarding his opinion regarding the cause of the jaw injury. Such questions are in the nature of "hypotheticals" reserved for expert witnesses. However, the Court found the error to be harmless in light of the other evidence of guilt.
The Court upheld the exclusion of evidence of two polygraph exams of the defendant which supported his defense. The Court found the exclusion of this evidence proper under Daubert. The Court noted that the theories of polygraphy could not adequately be tested. Further, the error rate for polygraphs "is not much more reliable than random chance." The exclusion therefore was not an abuse of discretion.
The Court further rejected a challenge to the policy of the Middle District of Florida of excluding police officers from jury venires. The Court noted that enforcement officers compose less than 0.55% of eligible jurors, and noted the significant state interest in having enforcement officers at work, not sitting on juries.
Turning to Henderson’s sentence, the Court found Booker "plain error." The district judge imposed the lowest possible sentence and staetd that she thought the sentence was too high but was bound by the guidelines in any case. In these circumstances, the defendant has met his burden of proving prejudice. The Court remanded the case for resentencing.
Mathenia: Constitutional vs. statutory Booker error
In U.S. v. Mathenia, No. 04-15250 (May 23, 2005) (Black, Carnes, Pryor), the Court affirmed a sentence of a defendant convicted of distributing and receiving child pornography.
The defendant received a 96-month sentence. His Guideline range was 87-108 months.
The Court noted that there are two Booker errors, a "constitutional" error and a "statutory" error. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result. The statutory error is in the use of mandatory guidelines. The constitutional error is reviewed for harmlessness, with the government bearing the burden of showing that the error did not contribute to the defendant’s sentence. The statutory error is reviewed under a less demanding test, where a court determines whether one can say that the error "had but a very slight effect." The Court noted that Mathenia raised a statutory error.
In the instant case, the district court stated at sentencing that it would impose "the same" sentence if the guidelines were just advisory. Under these circumstances, the Court noted, it had previously held that the government met the more demanding constitutional standard. Thus, there was no error under the less demanding statutory error case: the error "had but a slight effect."
The defendant received a 96-month sentence. His Guideline range was 87-108 months.
The Court noted that there are two Booker errors, a "constitutional" error and a "statutory" error. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result. The statutory error is in the use of mandatory guidelines. The constitutional error is reviewed for harmlessness, with the government bearing the burden of showing that the error did not contribute to the defendant’s sentence. The statutory error is reviewed under a less demanding test, where a court determines whether one can say that the error "had but a very slight effect." The Court noted that Mathenia raised a statutory error.
In the instant case, the district court stated at sentencing that it would impose "the same" sentence if the guidelines were just advisory. Under these circumstances, the Court noted, it had previously held that the government met the more demanding constitutional standard. Thus, there was no error under the less demanding statutory error case: the error "had but a slight effect."
Silvestri: Money laundering conviction upheld
In U.S. v. Silvestri, (May 23, 2005), the Court (Black, Marcus, Smith b.d.) upheld the conviction and sentence of a defendant convicted of money laundering the proceeds of an elaborate mail fraud.
The Court rejected challenges to the sufficiency of the evidence. The Court noted that for a the conspiracy counted, the government only had to show that the defendant knew either the insufficiency of the assets of the corporation into which investors were told to invest, or the illegitimate use of investor’s funds. The Court found that the government showed that the defendant "well knew of both aspects of the fraud."
The Court also rejected a sufficiency of the evidence challenge to the convictions for substantive money laundering. The Court rejected the argument that mere deposit of investor funds into bank accounts could not constitute money laundering. The Court recognized the caselaw which holds that money laundering cannot occur until the unlawful activity is completed. The Court pointed out, however, that for mail fraud, the crime is complete before the checks are deposited, as the offense is already complete when the letter containing a false representation is put in the mail.
The Court also rejected the argument that Silvestri should not be held accountable for the acts of co-conspirators for which he lacked knowledge. Citing the Pinkerton doctrine, the Court noted that the government need only show that the co-conspirator’s conduct was "reasonably foreseeable" to the defendant. The Court found that the government met this burden.
The Court rejected a challenge to a jury instruction. Citing the "invited error" doctrine, the Court pointed out that when a lawyer responds to a proposed instruction with the words "the instruction is acceptable to us," such action constitutes invited error. Here, defense counsel expressly accepted the language of the now-challenged instruction.
Finally, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Court rejected a Booker challenge to the sentence, pointing out that the issue was not raised in Silvestri’s initial brief, and was therefore waived.
The Court rejected challenges to the sufficiency of the evidence. The Court noted that for a the conspiracy counted, the government only had to show that the defendant knew either the insufficiency of the assets of the corporation into which investors were told to invest, or the illegitimate use of investor’s funds. The Court found that the government showed that the defendant "well knew of both aspects of the fraud."
The Court also rejected a sufficiency of the evidence challenge to the convictions for substantive money laundering. The Court rejected the argument that mere deposit of investor funds into bank accounts could not constitute money laundering. The Court recognized the caselaw which holds that money laundering cannot occur until the unlawful activity is completed. The Court pointed out, however, that for mail fraud, the crime is complete before the checks are deposited, as the offense is already complete when the letter containing a false representation is put in the mail.
The Court also rejected the argument that Silvestri should not be held accountable for the acts of co-conspirators for which he lacked knowledge. Citing the Pinkerton doctrine, the Court noted that the government need only show that the co-conspirator’s conduct was "reasonably foreseeable" to the defendant. The Court found that the government met this burden.
The Court rejected a challenge to a jury instruction. Citing the "invited error" doctrine, the Court pointed out that when a lawyer responds to a proposed instruction with the words "the instruction is acceptable to us," such action constitutes invited error. Here, defense counsel expressly accepted the language of the now-challenged instruction.
Finally, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Court rejected a Booker challenge to the sentence, pointing out that the issue was not raised in Silvestri’s initial brief, and was therefore waived.
Wednesday, May 18, 2005
Gallegos-Aguero: Maximum allowable sentence means no Booker error
In U.S. v. Gallegos-Aguerro, No. 04-14242 (May 18, 2005), the Court (Barkett, Hull, Wilson) held that Booker did not affect the viability of Almendarez-Torres v. U.S., 523 U.S. 224 (1998), and rejected the argument that a judge not make fact-findings concerning a prior conviction in order to enhance by 16 levels a sentence for a defendant convicted of illegal re-entry following a conviction for an aggravated felony. The Court found no Sixth Amendment error.
The Court noted that there was error under the Booker rule that the Guidelines are advisory, not mandatory. This error, however, was harmless. The district judge sentenced the defendant to the longest sentence permitted under his Guideline range, i.e. the maximum allowable. Hence, there was no actual prejudice to the defendant.
The Court noted that there was error under the Booker rule that the Guidelines are advisory, not mandatory. This error, however, was harmless. The district judge sentenced the defendant to the longest sentence permitted under his Guideline range, i.e. the maximum allowable. Hence, there was no actual prejudice to the defendant.
Petho: No Booker error where judge said "same sentence" under nonbinding guidelines
In U.S. v. Petho, No. 04-15412 (May 18, 2005), the Court (Barkett, Hull & Wilson) found no Booker error and affirmed a sentence for a defendant convicted of bank robbery.
The defendant had preserved a Booker objection to his sentence in the district court, but the Court found any Booker error harmless. The Court noted that the district court, in imposing a 37-month Guideline sentence, stated that it would have imposed the "same sentence" if the guidelines were non-binding. The Court also noted that there was no Sixth Amendment error because the defendant admitted the enhancing facts – passing a threatening note – at his plea colloquy.
The defendant had preserved a Booker objection to his sentence in the district court, but the Court found any Booker error harmless. The Court noted that the district court, in imposing a 37-month Guideline sentence, stated that it would have imposed the "same sentence" if the guidelines were non-binding. The Court also noted that there was no Sixth Amendment error because the defendant admitted the enhancing facts – passing a threatening note – at his plea colloquy.
Fields: low end Guideline sentence is not Booker plain error
In U.S. v. Fields, No. 04-12486 (May 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed the 360-month sentence imposed on a defendant convicted of cocaine trafficking.
The Court rejected the argument that a two-level for firearm possession should not have been imposed. The Court noted that the enhancement applies unless the defendant can show that it was clearly improbable that the firearm was connected with the offense. The firearms were present at locations at which co-conspirators were dealing drugs. The Court noted that one co-conspirator was the defendant’s cousin, in almost daily contact, and this close relationship increased the probability of a connection between the firearm and the narcotics trafficking.
The Court also rejected the argument that a supervisory role enhancement should not have applied because there were less than 5 participants in the offense. The Court counted at least five participants involved.
Finally, the Court found no plain error under Booker. The defendant argued that the third prong of plain error – the probability of a different result under advisory guidelines – was satisfied because the judge imposed a sentence at the low end of the guideline. The Court cited the decisions in four other circuits holding that this alone did not show "actual prejudice" from the sentence. "The fact that the district court went as low as it could under the mandatory guidelines system, without more, is not enough [to show plain error]."
The Court rejected the argument that a two-level for firearm possession should not have been imposed. The Court noted that the enhancement applies unless the defendant can show that it was clearly improbable that the firearm was connected with the offense. The firearms were present at locations at which co-conspirators were dealing drugs. The Court noted that one co-conspirator was the defendant’s cousin, in almost daily contact, and this close relationship increased the probability of a connection between the firearm and the narcotics trafficking.
The Court also rejected the argument that a supervisory role enhancement should not have applied because there were less than 5 participants in the offense. The Court counted at least five participants involved.
Finally, the Court found no plain error under Booker. The defendant argued that the third prong of plain error – the probability of a different result under advisory guidelines – was satisfied because the judge imposed a sentence at the low end of the guideline. The Court cited the decisions in four other circuits holding that this alone did not show "actual prejudice" from the sentence. "The fact that the district court went as low as it could under the mandatory guidelines system, without more, is not enough [to show plain error]."
Wednesday, May 11, 2005
Custer: Booker Error Preserved
In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court withdrew its earlier pre-Booker published opinion, and entered a decision holding, on harmless error review, that the district court erred under Booker when it imposed Guideline sentence enhancements on a defendant convicted of distribution of child pornography. The Court pointed out that the defendant’s plea agreement did not waive his right to assert a Booker challenge on appeal.
Robles: Booker error is harmless
In U.S. v. Robles, No. 04-13598 (May 10, 2005), the Court held that any Booker error in the sentence enhancements based on "relevant conduct" under the Guidelines was harmless beyond a reasonable doubt, because the district court at sentencing stated that its sentence would be the same if it imposed an alternative sentence under advisory guidelines.
The Court rejected the argument that the error in imposing a Guideline sentence was not harmless because post-Booker a sentencing court could take account of matters not ordinarily relevant, like a defendant’s age. The Court found that the sentencing court’s statements made clear that it did not feel limited in what evidence it could consider. The Court also rejected the argument that the district court could now take account of the factors listed at 18 U.S.C. § 3553(a). The Court was "at a loss" to see how these factors could possibly change the result. The court added that it did not expect a sentencing court post-Booker to conduct an accounting of every § 3553(a) factor and expound on its role in its sentencing decision.
The Court rejected the argument that the error in imposing a Guideline sentence was not harmless because post-Booker a sentencing court could take account of matters not ordinarily relevant, like a defendant’s age. The Court found that the sentencing court’s statements made clear that it did not feel limited in what evidence it could consider. The Court also rejected the argument that the district court could now take account of the factors listed at 18 U.S.C. § 3553(a). The Court was "at a loss" to see how these factors could possibly change the result. The court added that it did not expect a sentencing court post-Booker to conduct an accounting of every § 3553(a) factor and expound on its role in its sentencing decision.
Monday, May 09, 2005
Davis: Booker error not harmless despite departure
In U.S. v. Davis, 2005 WL 1033422 (May 4, 2005), the Court (Anderson, Carnes, Marcus) vacated a sentence and remanded for resentencing consistent with Booker.
Pre-Booker, the defendant objected in the district court, and again in his initial brief on appeal, that the district court’s reliance on drug quantity as a basis for his sentence violated his Sixth Amendment rights. The Court agreed finding that the error was not harmless. The Court rejected the government’s argument that the error was harmless because the sentencing court already departed downward, on the basis of the defendant’s assistance to authorities. The Court noted that under the Guideline departure authority, the district court had not enjoyed "unfettered" discretion, but only discretion within the substantial assistance guideline. The Court said it simply did not know how the district court would have imposed sentence had it known the Guidelines were "advisory," and therefore the government, on harmless error review, could not meet its burden of showing the district court’s error was "harmless."
Pre-Booker, the defendant objected in the district court, and again in his initial brief on appeal, that the district court’s reliance on drug quantity as a basis for his sentence violated his Sixth Amendment rights. The Court agreed finding that the error was not harmless. The Court rejected the government’s argument that the error was harmless because the sentencing court already departed downward, on the basis of the defendant’s assistance to authorities. The Court noted that under the Guideline departure authority, the district court had not enjoyed "unfettered" discretion, but only discretion within the substantial assistance guideline. The Court said it simply did not know how the district court would have imposed sentence had it known the Guidelines were "advisory," and therefore the government, on harmless error review, could not meet its burden of showing the district court’s error was "harmless."
Williams: no Booker plain error
In U.S. v. Williams, 2005 WL 1058931 (May 6, 2005), the Court (Birch, Black, Pryor) held that the defendant failed to establish Booker plain error in the sentence enhancement for brandishing or possessing a firearm during robberies.
The Court noted that, after the hearing the testimony of witnesses, the district court concluded that the defendant did possess a gun during his robberies, and that the defendant was lying when he denied having possessed a firearm during these crimes. The Court concluded that it was "obvious" from the sentencing transcript that if the case were sent back down, the district court would impose the enhancemnents "again." Similarly, the district court made clear that it would not grant a sentence reduction for acceptance of responsibility, and, again, it was clear that a remand on this issue would be pointless. The defendant, therefore, failed to satisfy the third prong of the Eleventh Circuit’s Booker plain error analysis, i.e., showing that a lower sentence would have resulted had the district court known that the Guidelines were not mandatory.
The Court noted that, after the hearing the testimony of witnesses, the district court concluded that the defendant did possess a gun during his robberies, and that the defendant was lying when he denied having possessed a firearm during these crimes. The Court concluded that it was "obvious" from the sentencing transcript that if the case were sent back down, the district court would impose the enhancemnents "again." Similarly, the district court made clear that it would not grant a sentence reduction for acceptance of responsibility, and, again, it was clear that a remand on this issue would be pointless. The defendant, therefore, failed to satisfy the third prong of the Eleventh Circuit’s Booker plain error analysis, i.e., showing that a lower sentence would have resulted had the district court known that the Guidelines were not mandatory.
Tuesday, May 03, 2005
Crawford: Incorrect advisory Guideline calculation
In U.S. v. Crawford, No. 03-15136 (May 2, 2005) (Edmondson, Marcus, Pryor), the Court reversed a district court’s sentencing finding that a defendant did not engage in more than minimal planning, and reversed a district court’s downward departure based on restitution. The Court remanded the case for resentencing in the advisory manner explicated by Booker.
The Court recognized that Booker had required a "reasonableness" standard on appellate review of sentences. The Court found that this reasonableness standard did not affect appellate review of the application of the sentencing guidelines. The Court noted that Booker requires a district court to "consult" and "take into account" the Guidelines. This "consultation requirement" obliges the courts to calculate correctly the sentencing range prescribed by the Guidelines.
The Court noted that the more than minimal planning Guideline focuses on "repeated acts over a period of time" which indicate greater culpability. The Court recognized a narrow exception for conduct in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. The Court noted that Crawford wrote 184 checks in furtherance of his illegal scheme. He had many opportunities to consider the consequences of his actions, but never ceased participation. Thus, contrary to the district court’s finding, the defendant’s conduct was not the product of fortuity, and the more than minimal planning enhancement applied.
The Court also reversed the downward departure based on restitution and remorse. The Court noted that the district court ruled before it had the opportunity to consider the Court’s extraordinary restitution opinion in U.S. v. Kim. Therefore, on remand, the Court "must apply the Kim test." The Court rejected as a basis for downward departure the use of unsophisticated means: "A defendant who uses unsophisticated means is not to be rewarded for lack of imagination."
Further, because the government had not filed a substantial assistance motion, assistance was not a basis for downward departure.
Finally, the Court recognized that the reliance on the disproportionate amount of loss amount was a valid basis for departure. The Court noted that "the amount of loss appears proportionate to the criminal acts committed by Crawford."
The Court found that the sentence was based on "an erroneous understanding of the Guidelines." The Court instructed the district court to calculate an advisory guideline range that includes more than minimal planning and considers a downward departure in a range consistent with its opinion.
The Court recognized that Booker had required a "reasonableness" standard on appellate review of sentences. The Court found that this reasonableness standard did not affect appellate review of the application of the sentencing guidelines. The Court noted that Booker requires a district court to "consult" and "take into account" the Guidelines. This "consultation requirement" obliges the courts to calculate correctly the sentencing range prescribed by the Guidelines.
The Court noted that the more than minimal planning Guideline focuses on "repeated acts over a period of time" which indicate greater culpability. The Court recognized a narrow exception for conduct in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. The Court noted that Crawford wrote 184 checks in furtherance of his illegal scheme. He had many opportunities to consider the consequences of his actions, but never ceased participation. Thus, contrary to the district court’s finding, the defendant’s conduct was not the product of fortuity, and the more than minimal planning enhancement applied.
The Court also reversed the downward departure based on restitution and remorse. The Court noted that the district court ruled before it had the opportunity to consider the Court’s extraordinary restitution opinion in U.S. v. Kim. Therefore, on remand, the Court "must apply the Kim test." The Court rejected as a basis for downward departure the use of unsophisticated means: "A defendant who uses unsophisticated means is not to be rewarded for lack of imagination."
Further, because the government had not filed a substantial assistance motion, assistance was not a basis for downward departure.
Finally, the Court recognized that the reliance on the disproportionate amount of loss amount was a valid basis for departure. The Court noted that "the amount of loss appears proportionate to the criminal acts committed by Crawford."
The Court found that the sentence was based on "an erroneous understanding of the Guidelines." The Court instructed the district court to calculate an advisory guideline range that includes more than minimal planning and considers a downward departure in a range consistent with its opinion.
Dacus: Booker plain error where judge would have departed downward
In U.S. v. Dacus, No. 04-15319 (May 3, 2005), the Court held that Booker "plain error" occurred at sentencing when the district stated that if it had the authority to depart downward, it would have done based on Dacus’ rehabilitation efforts.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.
Burge: ACCA prior juvenile convictions count
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.
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.
Burge: ACCA counts prior juvenile adjudications
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.
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.
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.
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