Rolling v. Crosby: Attorneys Reasonably Believed Alachua County was good place for death sentencing

In Rolling v. Crosby, No. 05-14252 (Feb. 9, 2006), the Court affirmed the denial of federal habeas relief to a defendant sentenced to death for the 1990 homicides in Gainsville, Florida, of five students.
The Florida Supreme Court had previously rejected Rolling’s claim that counsel was ineffective for not seeking a change of venue, out of Gainsville, until after jury selection commenced, at which time counsel becaume convinced that the jury was likely to recommend a sentence of death. The Florida Supreme Court relied on counsel’s statements that they initially thought Gainsville was a good place for a trial, given the well-educated community in Alachua County. This finding was entitled, post-AEDPA, to deference unless it was "unreasonable." The Court noted that the lawyers’ judgment was based on years of experience in criminal defense.

Pratt: Search warrant has content despite its non-existence

In U.S. v. Pratt, No. 04-15168 (Feb. 8, 2006), the Court affirmed the denial of a motion to suppress. The motion was based on the fact that the search was lost after its execution. The defendant, citing Groh v. Ramirez, 540 U.S. 551 (2004) (search warrant itself, not its supporting documentation, is scrutinized for compliance with the Fourth Amendment’s particularity requirement), argued that the non-existence of a search warrant conclusively established that a search was warrantless and therefore invalid. Rejectingthis argument, the Court noted that the existence vel non of a search warrant was not at issue in Groh. Further, in this case, there was evidence supporting the warrant’s particularity, namely, the testimony of the issuing judge that he "always makes sure" that the requested warrant matches the affidavit in support, and that he did so in Pratt’s case. Thus, since the affidavit satisfied the particularity requirement, the search warrant did too, and no Fourth Amendment violation occurred.
The Court also rejected a Booker error challenge to the sentence, pointing out that the district court stated at sentencing that it would impose the "same sentence" even if the Guidelines turned out (post-Booker) not to be binding.

Williams: Sentence "in violation of law" when court gives no reasons for it

In U.S. v. Williams, No. 04-14350 (Feb. 8, 2006), the Court affirmed a conviction and rejected four of five challenges to the sentence. However, the Court agreed with the defendant that the district court erred, when imposing sentence, in failing to comply with 18 U.S.C. § 3553(c)(1), which requires the court, at the time of sentencing, "to state in open court the reasons for its imposition of the particular sentence, and, if the sentence . . . exceeds 24 months, the reason for imposing a sentence at a particular point within the [Guideline] range."
The Court rejected the government’s argument that this error was subject only to "plain error" review. Citing U.S. v. Veteto, 920 F.2d 824 (11th Cir. 1991), the Court noted that failure to comply with the statement of reasons requirement of § 3553(c)(1) results in a sentence imposed "in violation of law." "Here the trial court offered no reason for the life sentence it elected to impose upon 26-year old Williams." The Court therefore remanded the case to the district court.

Sharpe: Rule 12 dismissal must be based on face of the indictment, not trial evidence

In U.S. v. Sharpe, No. 05-11553 (Feb. 7, 2005), the Court, on a government appeal, reversed the district court’s grant of a post-trial motion to dismiss an indictment, pursuant to Fed. R. Evid. 12(b)(3)(B) for failure to state an offense.
The defendant, after the jury’s conviction, made untimely Rule 29 motions for judgment of acquittal. The district court converted the motions into Rule 12(b) motions to dismiss the indictment, and granted them. However, in so ruling, the district court "considered the overall sufficiency of the evidence presented by the government at trial," when it should have determined the sufficiency of the indictment from "the face of the indictment."
The Court reviewed the allegations of the indictment, and concluded that they sufficed to allege mail fraud.

Jackson: 60(b) motion cannot get a second chance at appeal

In Jackson v. Crosby, No. 04-15992 (Feb. 2, 2006), the Court denied a motion for reconsideration of an earlier order denying a motion for a certificate of appealability.
The petitioner untimely sought relief in the district court from an order denying a petition for federal habeas relief. The appeal from that order was dismissed on jurisdictional grounds. The petitioner then filed a motion under Fed. R. Civ. P. 60(b), asking the district court to take action so that he could seek appellate review of the earlier order. The district court denied relief, citing Gonzalez v. Dep’t of Corrections, 366 F.3d 1253 (11th Cir. 2004) (en banc) (district courts lack jurisdiction to consider 60(b) motions as a basis for reconsidering the denial of habeas relief). A certificate of appealability was denied by both the district court, and by the Court of Appeals. The petitioner then sought reconsideration of the latter order, pointing that the United States Supreme Court had overruled Gonzalez. See 125 S.Ct. 2641.
Denying reconsideration, the Court acknowledged that the Supreme Court’s decision in Gonzalez, which held that 60(b) motions could be a basis for reopening denials of habeas relief, undermined the stated basis for the district court’s original denial of Rule 60(b) relief. However, the petitioner’s motion failed for a separate reason: namely that Rule 60(b) cannot be used to obtain a second chance at a timely appeal.

Schier: No Speedy Trial Act Violation

In U.S. v. Schier, No. 05-11838 (Jan. 31, 2006), the Court (Dubina, Hull, Marcus), reviewing the conviction of a defendant of possessing a concealed dangerous weapon – an icepick – on an aircraft, rejected Speedy Trial Act violations and challenges to the sufficiency of the evidence.
The defendant claimed that the Speedy Trial Act was violated, because the trial commenced within 30 days of the issuance of the second superseding indictment, in violation of 18 U.S.C. § 3161(c), which provides that a trial shall not commence less than 30 days from the date on which the defendant first appears through counsel. The Court pointed out that in U.S. v. Rojas-Contreras, 474 U.S. 231 (1985), the Supreme Court held that the 30-day trial preparation period did not begin to run (again) from the date of filing a superseding indictment. Here, the timing of the trial did not violate the Act.
The Court also found sufficient evidence to sustain the conviction, noting that Schier conceded during her testimony that she tried to hide the icepick while on the plane, testimony confirmed by two fellow passengers.
The Court also rejected challenges under the Jencks Act, noting that the Act does not apply to the statements of non-testifing witnesses, and further, that counsel did not request production of other notes, as required by 18 U.S.C. § 3500(b).

Rutherford: Successive Habeas Claims Fail

In In Re Rutherford, No. 06-10784 (Jan. 30, 2006), the Court denied Rutherford’s Application for Permission to File a Successive Habeas Petition. The Court noted that the claims which could be brought in a successive petition were limited by § 2244(b)(2)(A)-(B) of AEDPA. Here, none of Rutherford’s claims could satisfy this statute’s standard. Some had been previously rejected by the Florida Supreme Court, and Rutherford could not show that the facts underlying his claims were such that "no reasonable factfinder would have found [him] guilty." Others relied on cases which were procedurally barred, and which had not been made retroactively applicable by the Supreme Court.

Gonzalez-Lauzan: No Miranda violation post "Okay you got me"

In U.S. v. Gonzalez-Lauzan, No. 04-12536 (Jan. 30, 2006), the Court (Hull, Marcus, Hill) held that a defendant’s Miranda and Sixth Amendment rights were not violated.
After the defendant was arrested and charged with murder, and while he was incarcerated on a separate case, the police interviewed him. The officers decided not to administer Miranda warnings at the beginning of the meeting, deciding instead to describe the evidence they had against the defendant, in the hope that he would talk about his participation in the offense. They would only give Miranda warnings if it became apparent that the defendant would be willing to make a custodial statement.
Two and a half hours into the meeting, during which the police instructed the defendant to listen and said they had no questions, and during which they waited for the defendant to see if there was a response, the defendant stated suddenly: "Okay, you got me." The police then read the defendant his Miranda rights, and the defendant agreed in writing to waive these rights, and then made "multiple incriminating statements."
The district court agreed with the defendant that the statement "Okay, you got me," should be suppressed, but allowed all the post-Miranda warning statements to be admitted. On appeal, the Court affirmed.
The Court noted that the two most relevant cases were Oregon v. Elstad, 470 U.S. 298 (1985) (despite initial failure to give Miranda warnings, postwarning confession is admissible where subsequent statement was voluntarily made), and Missouri v. Seibert, 542 U.S. 600 (2005) (confession inadmissible where police deliberately gave defendant Miranda warnings only after interrogating her and drawing out a confession). The Court found that the confession was admissible regardless of which case applied. Even under Seibert, the multi-factor test adopted by the 4-Justice plurality indicated that the confession was admissible, because the defendant gave no answers during the prewarning session, which suggests that the latter warnings were effective. Further, the only incriminating post-warning statement was "okay, you got me." In addition, it remained reasonable for the defendant to decline to make statements after being given warnings, because he said very little during the pre-warning session. Although other factors weighed in the defendant’s favor – namely, the pre- and post-warning questioning was continuous in time and place – they carried little weight in light of the defendant’s silence during the first phase of the interview.
Moreover, Justice Kennedy’s concurrence in Seibert focused on whether police engaged in a "strategy" which undermined Miranda. This – arguably the case’s narrowest holding – was not present here, because police did not ask the defendant a single question during the first phase.
The Court also rejected the Sixth Amendment challenge. Though the defendant had counsel on another case, this did not mean he had counsel on this case, as the Sixth Amendment right is "offense specific." Further, the defendant never invoked his right to counsel during the interview, thereby waiving his post-warning right. http://www.ca11.uscourts.gov/opinions/ops/200412536.pdf

Britt: Levy waiver applies on remand from S. Ct. for Booker consideration

In U.S. v. Britt, No. 04-10151 (Jan. 26, 2005), the Court, on remand from the Supreme Court for reconsideration in light of Booker, the Court held that based on U.S. v. Levy, 416 F.3d 1273 (11th Cir. 2005), it need not address any Booker error in the sentence, because the defendant raised the issue for the first time in his reply brief, thereby waiving the issue, as Booker claims had to be raised in the initial brief in order to be preserved for appellate review.

Sweeting: Consecutive sentences for same supervised release violation

In U.S. v. Sweeting, No. 05-11062 (Jan. 26, 2005), the Court (Dubina, Marcus, Wilson) held that the district court did not abuse its discretion to impose sentence for a violation of a condition of supervised release when it imposed a second two-year consecutive sentence, in addition to a three-year consecutive sentence, for the same conduct (conviction for crack cocaine distribution) which constituted a violation of his conditions of supervised release in two separate, unrelated cases.
The Court noted that post-Booker, it applied a "reasonable sentence" rather than the earlier "plainly unreasonable" standard of review to supervised release violation sentences.
The Court noted that the two-year term was within the statutory maximum for a supervised release violation. Further the sentencing court took account of Sweeting’s criminal history and threat to society. Thus, the sentence was within the sentencing court’s discretion.http://www.ca11.uscourts.gov/opinions/ops/200511062.pdf

Barnes: No Rule 33 Exception in AEDPA limitations period

In Barnes v. U.S., No. 05-10856 (Jan. 24, 2006), the Court held that the AEDPA one-year statute of limitations for filing a § 2255 motion is not tolled by the prior filing of a motion under Fed. R. Crim. P. 33 for a new trial. The Court noted that the language of AEDPA provides that the period commences when the judgment of conviction becomes final. A Rule 33 motion does not change that time period. The Court noted that it was for Congress to modify AEDPA to take account of Rule 33, but it would not engraft a Rule 33 exception on the statute.

Jones: no habeas relief for death sentence

In Jones v. Campbell, No. 04-11911 (Jan. 20, 2006), the Court denied habeas relief to an Alabama death row inmate sentenced to death for 1978 murders.
The Court rejected the ineffective assistance of counsel claims, finding that the alleged failure to investigate the defendant’s abusive childhood, mental health problems, and intoxication was not ineffective in view of the mixed evidence on these points, and the fact that the outcome would not have been different even if these avenues had been pursued.
The Court also rejected the argument that counsel was ineffective for failing to object to a deficient "malice" instruction, finding that the overwhelming evidence of murder of parents in the presence of their children rendered any error "harmless."
Finally, the Court rejected a claim of racial animus by a former defense lawyer toward his client as unpreserved, and found no evidence that this affected the representation.

Stevenson (Unpublished): Booker remand requires hearing

In U.S. v. Stevenson, No. 05-14504 (Jan. 17, 2006) (unpublished), the Court held that a district court erred in not granting a defendant a resentencing hearing, and an opportunity to allocute, following a remand for resentencing based on Booker error.
The Court stated: "although Stevenson’s guideline range was correctly calculated, the district court must still hold a hearing to consult the factors in 18 U.S.C. sec. 3553(a) as now required by Booker under an advisory guidelines system."

Prevo: Search at Prison Parking Lot ok

In U.S. v. Prevo, No. 04-15310 (Jan. 11, 2005), the Court (Anderson, Black, Carnes) held that no violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures occurred when a woman arriving in her vehicle at the parking lot of a correctional facility in Alabama to pick up an inmate was stopped, asked whether she had any weapons or drugs in the car, and then searched. The search uncovered a firearm in her purse and crack cocaine and a cocaine pipe in the trunk. The woman pled guilty to possession of the gun, but preserved for appeal a challenge to the constitutionality of the search.
The Court noted that prison authorities can use reasonable means to prevent weapons or other objects from being smuggled into prisons. The Court found that an unscheduled search, as here, of automobiles in the parking lot of a work release center did not infringe on the Fourth Amendment rights. The Court rejected Prevo’s argument that a search of person entering the facility was sufficient, noting that a "double-tier of deterrence" provided more security. The Court noted that even if Prevo was not intending to smuggle the gun and the cocaine into the facility, other prisoners who passed by might be so inclined. "At least where inmates have access to cars parked in prison facility parking lots, a search of the vehicle is reasonable."
The Court noted that Prevo’s privacy interest was lessened by the fact that she was visiting a prison, and because of signs warning visitors that cars entering the property were subject to search, and Prevo had seen these signs in her 7 previous visits to the facility.
The Court also rejected the argument that no search should have occurred once, upon being stopped, Prevo asked to be able to drive away. The Court noted that this would undermine the success of searches. The Court disagreed with the contrary rule of Gadson v. State, 668 A.2d 22 (Md. 1995).
The Court also found no problem of "unbridled discretion" of searching officers, pointing out that the search affected "all" vehicles which entered the parking lot that day.

Williams: 90-month sentence reasonable despite 188-235 Guideline range

In U.S. v. Williams, No. 05-11594 (Jan. 13, 2006), the Court (Tjoflat, Black, Marcus), on a government appeal, held that a 90-month sentence was "reasonable" despite the fact that the advisory Guideline range was 188-235 months. The Court therefore affirmed the sentence.
The defendant was convicted of possessing five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Because of two prior felony convictions, he was subject to a 188-235 month sentence under the career offender provision of the Guidelines. At sentencing the district court stated that such a lengthy sentence would not promote respect for the law or be proportional to the seriousness of the offense. The court stated that it could not "in good conscience" sentence the defendant to such a lengthy term.
Reviewing the sentence, post-Booker, for reasonableness, the Court noted that the district court had correctly calculated the Guideline range. The Court rejected the government’s argument that the district court had merely "incanted" the Guidelines while ignoring them, the Court pointed out that the district court had repeatedly stated that a 188 month sentence was unreasonable for a transaction involving $350 worth of drugs, and concluded that a 90-month sentence was "sufficient, but not greater than necessary" to punish Williams, in accord with 18 U.S.C. § 3553(a). The district court said that "normally" the policies of § 3553(a) are "encapsulated" in the Guidelines, but found that a mechanistic application of the Guidelines would not promote respect for the law in this case. The Court concluded that the district court gave "valid" reasons for its sentence, having correctly calculated the Guideline range. The Court found the sentence "reasonable" and affirmed the sentence.

Greer: Almendarez Torres requires adherence to ACCA mandatory minimum

In U.S. v. Greer, No. 05-11295 (Jan. 10, 2005), the Court (Black, Carnes, Pryor), affirmed a defendant’s conviction, and, on a government cross-appeal, reversed the district court’s decision that notwithstanding the ACCA minimum mandatory sentence of 15 years for anyone who violates 18 U.S.C. § 922(g) after three convictions for a violent felony or a serious drug offense, it could impose a 67-month sentence. The district court had reasoned that post-Apprendi/Booker, it had no authority to find the facts regarding a prior conviction which could support a sentence enhancement.
The Court noted that Almendarez-Torres v. U.S., 523 U.S. 224 (1998) and its progeny in the Eleventh Circuit had held that a district court is authorized to make findings relating to prior convictions, and that these findings did not violate the Sixth Amendment’s jury trial guarantee. The Court held that this holding extended not just to the fact of prior convictions, but to their nature as well, i.e. whether they qualified under § 922(g). The Court therefore vacated the sentence and remanded for resentencing.

Ndiaye: Affirming false social security docs. convictions

In U.S. v. Ndiaye, No. 04-11283 (Jan. 6, 2006), the Court (Tjoflat, Kravich & Mills, b.d.) affirmed convictions and sentences arising out of a large scale conspiracy involving identification and Social Security fraud.
The Court rejected arguments that the district court abused its discretion in refusing the allow the defense to call a co-conspirator to the stand. The Court agreed with the district court’s conclusion that much of the proffered testimony was irrelevant or "collateral" to the proceedings.
The Court also rejected the argument that a "deliberate indifference" instruction should not have been given. The Court recognized that such an instruction is appropriate only when there is evidence in the record showing the defendant purposely contrived to avoid learning the truth, but found that the giving of the instruction was harmless error where it does not affect the burden of proof beyond a reasonable doubt.
The Court also rejected the argument that the instructions concerning "knowingly and willfully" did not adequately inform the jury of the defense to these charges.
The Court further rejected challenges to the sufficiency of the evidence, noting that the jury "obviously" found the government witnesses credible. The Court rejected the argument that the offense of inducing an alien to enter or reside in the United States, 8 U.S.C. § 1324(a)(1)(A)(iv), could not involve aliens who had already entered the country. The Court noted that helping an alien obtain a (fraudulent) Social Security card "encourages" an alien to enter the United States, and noted that helping an illegal alien obtain a Social Security card was sufficient to support a conviction.
Turning to sentencing issues, the Court affirmed the imposition of an obstruction of justice sentence enhancement, based on the defense obtaining two false affidavits from witnesses. The Court noted that it did not matter that the defense never introduced these affidavits at trial because the enhancement applies to obstruction "during the course of the investigation." The Court noted that the witnesses were "influenced" by the defendant to make false statements in the affidavits. Alternatively, the enhancements were supported by one defendant telling his wife not to testify.

Washington: Enhancements and restitution based on fleeing into condo

In U.S. v. Washington, No. 05-10474 (Jan. 6, 2005), the Court (Carnes, Hull & Pryor) the Court upheld a "reckless endangerment" sentence enhancement under USSG § 3C1.2. The Court noted that Washington drove at a "high rate of speed" in his vehicle while to trying to elude police after his bank robbery, and entered an underground parking garage while people were coming in and getting onto the elevator.
The Court also affirmed the order of restitution to the Police Department and the Condominium Association, based on damage to a police vehicle, and to a building security gate, caused when the police attempted to follow Washington into the garage and broke the gate and damaged their vehicle. The Court recognized earlier precedent which had excluded from restitution coverage injury "as a result of" a defendant’s action, and limited losses to those underlying the offense of conviction (in this case, a bank robbery, not the subsequent chase). But the Court found that the Restitution Act had been amended in 2005 to include proximate harms. Hence, the prior cases were inapposite, and the district court correctly included the Police Department and Condominium Association losses in its restitution calculation.

Martinez: Sentence Reasonable

In U.S. v. Martinez, No. 05-12706 (Jan. 9, 2006), the Court (Tjoflat, Carnes, Hull) the Court rejected a Booker unreasonableness challenge to an 87-month sentence imposed on a defendant convicted of illegal reentry. The defendant had an extensive criminal history of violent crimes.
The Court first noted that it did have jurisdiction to review an appeal of a sentence for unreasonableness, finding such authority in 18 U.S.C. § 3742(a)(1), which confers appellate review for sentenced imposed in violation of law.
The Court "easily" concluded that Martinez’ sentence was reasonable. First, the 87-month sentence was one-third the length of the 20-year statutory maximum. Martinez admitted twice entering the country illegally. Further, the district court did not apply the Guidelines in a "presumptive manner." Rather, the court acknowledged that under § 3553(a) it is supposed to impose a sentence that is sufficient, but not greater than necessary to comply with the statutory purposes of sentencing."
The Court also rejected Martinez’ Due Process challenge to his sentence, citing prior cases rejecting similar arguments.

Gibson: No funeral for Almendarez-Torres, yet

In U.S. v. Gibson, No. 04-14776 (Jan. 4, 2006), the Court (Tjoflat, Barkett, Mills b.d.), on a government sentencing appeal, held that the district court erred when it concluded that under Blakely v. Washington it could not classify Gibson as a career offender because the government did not prove to a jury the drug-trafficking nature of Gibson’s prior convictions.
The Court pointed out that the Supreme Court has not yet overruled Almendarez-Torres, which held that a judge could make findings at sentencing regarding a defendant’s prior convictions. "Though wounded, Almendarez-Torres still marches on and we are ordered to follow. We will join the funeral procession only after the Supreme Court has decided to bury it." The Court rejected the argument that deciding whether a prior conviction was a drug conviction involved a "qualitative characterization" which was not permitted under Almendarez-Torres. The determination involves an issue of law, which a judge should make. The Court distinguished United States v. Spell, 44 F.3d 936 (11th Cir 1995), which limited the circumstances under which a court could look outside the judgment of conviction to determine the nature of a prior conviction. The Court pointed out that there was no ambiguity in this case about the drug-trafficking nature of Gibson’s prior offenses, and Spell was therefore inapposite.
The Court noted that district court erred in calculating Gibson’s guideline sentence, because it failed to comply with § 4B1.1, which assigns offense level 37 to a career offender. Further, the district court erred in its departure decision based on overrepresentation of criminal history, because, on this basis, it could only depart downward one-level across the horizontal axis of the Guideline. Further, if the Court wished to depart further, on the vertical axis, on another "unguided" basis, it had to state this basis on the record. Finally, the Court also had to state on the record its basis for a post-Booker non-Guideline sentence reduction, which it did not do.
The Court therefore vacated the sentence and remanded for resentencing.

Cain: Top of Guideline Sentence not Harmless Booker error

In U.S. v. Cain, No. 04-15754 (Dec. 29, 2005), the Court (Anderson, Black, Carnes) the Court held that Booker error was not harmless even when the district court imposed a sentence at the top of the Guidelines range.
After the jury convicted Cain of being a felon in possession of a firearm, at sentencing the district court imposed a sentence enhancement based on evidence, not presented to the jury, that the firearm in question was stolen. The government argued that any Booker error was harmless, because the district court imposed a sentence at the top of the Guideline range, which created an inference that it would have imposed the same sentence under an advisory, post-Booker, guideline system.
Rejecting this argument, the Court held that "inference alone" does not show an error was harmless, which requires the government to "point to a statement by the district court indicating that it would have imposed the same or a higher sentence if it had possessed the discretion to do so." In the absence of such a statement, the Court of Appeals does not know what the sentence would have been, and the error is therefore not harmless. The Court vacated the sentence and remanded for resentencing.

Hernandez: Sufficient evidence for drug conviction

In U.S. v. Hernandez, No 04-16663 (Dec. 27, 2005), the Court (Carnes, Hull & Pryor) rejected challenges to the sufficiency of the evidence, but, accepting the government’s confession of error, vacated a sentence for Booker error.
During a cocaine sting operation which took several days to prepare, Hernandez, who had not been involved in any of the events, appeared on the day of the transaction as a passenger in the vehicle driven by a purchaser of the drugs. Hernandez’ involvement, according to law enforcement (whose account was contradicted by defense witnesses) consisted solely of saying "nine and this," in response to a question about the money for the drugs (a response which didn’t make too much sense since the transaction involved $30,000+) and of saying "trainos de nosotros" ("bring us ours"), a comment which allegedly referred to drugs. Recognizing that the evidence could have been interpreted not to show guilt, the Court nevertheless affirmed Hernandez’ drug trafficking conviction. The Court noted that, on appeal, it gave every reasonably favorable inference to the government, and that the jury could have inferred guilt from Hernandez’ statements and his presence at the scene of the drug transaction. Moreover, the trial court did not abuse its discretion in not granting, post-verdict, a motion for a new trial, because this was not one of the "exceptional" cases in which the judge could overrule the jury’s verdict of conviction. The Court also rejected a Due Process challenge to its standard of review of sufficiency issues.
For the sentence, the Court noted that the district court had stated that it would have imposed a lower sentence had it not been bound by the Guidelines, and therefore committed Booker error in imposing the Guideline sentence. The sentence was vacated, for resentencing.

Gomez-Diaz: Right to Appeal despite appeal waiver

In Gomez-Diaz v. U.S., No. 04-11105 (Dec. 20, 2005), the Court remanded the case to the district court for an evidentiary hearing concerning whether the defendant was entitled to an appeal.
The defendant signed a plea agreement in which he waived most, but not all, issues on appeal. After sentencing, no notice of appeal was filed. The defendant brought a § 2255 proceeding, claiming that his lawyer was ineffective in failing to file a notice of appeal. The district court dismissed the action, on the ground that the defendant failed to identify any meritorious grounds for appeal.
Reversing, the Court pointed out that, under Supreme Court caselaw, the defendant need not show meritorious grounds for appeal, (1) if no notice of appeal despite a specific instruction by the defendant to his lawyer to file an appeal, or (2) if the attorney failed to consult with his client in order to determine whether the client wished to appeal. The Court therefore remanded the case to the district court for an evidentiary hearing to determine whether the defendant specifically requested an appeal, or whether the lawyer failed to determine his client’s wishes.

Maharaj: Vienna Convention Claim Fails

In Maharaj v. Dep’t of Corrections, No. 04-15669 (Dec. 15, 2005), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to life in prison for murder.
Procedurally, the Court declined to enter a stay in view of ongoing collateral proceedings in state court involving the Vienna Convention. The factors involved in such a determination did not weigh in the petitioner’s favor.
The Court held that the district court did not err in considering alleged Brady violations individually, instead of for their cumulative effect. Thus viewed, the Court found no error. For instance, the witholding of a potentially exculpatory polygraph test of the State’s lead witness was not a Brady violation, because defense counsel was sufficiently aware of the test to cross-examine the witness about it. Applying the deferential habeas standard of review, the Court found no error.
The Court also found no error in the failure to provide defense with the murder victims’ briefcase, finding that the defense could have subpoenaed these materials. The Court also noted that the contents of the briefcase were not "material" to the case.
The Court also found no reversible error in the failure of authorities to comply with the Vienna Convention. The Court noted that it was not bound by holdings of the International Court of Justice, and that there was no established Supreme Court precedent at odds with the State court holdings.

Diaz-Boyzo: Sufficient evidence of metamphetamine trafficking

In U.S. v. Diaz-Boyzo, No. 04-15629 (Dec. 14, 2005), the Court rejected a sufficiency of the evidence challenge to a conviction for metamphetamine trafficking.
The defendant claimed that he was merely present in a car when a drug deal was taking place. The Court, however, pointed out that the defendant rode with an accomplice who arranged a drug deal, watched the drug deal from the car, and had a firearm in his possession. Further, the jury was free to disbelieve exculpatory defense testimony. For similar reasons, the Court found sufficient evidence to support the defendant’s conviction of using a firearm in connection with a drug trafficking crime.

Baker. Murder evidence erroneously admitted but not always prejudicial

In U.S. v. Baker, No. 00-13083 (Dec. 13, 2005), the Court, in a 137-page opinion (Barkett, Marcus, George b.d.), affirmed the drug trafficking ("Boobie Boys") convictions and sentences of some defendants but reversed the convictions of others.
At trial, over defense objection, the government introduced evidence of prior murders, allegedly committed by defendants as members of a drug trafficking enterprise.
The Court noted that the trial court’s admission of a police officer’s testimony that his investigation "revealed" a defendant to have previously committed a murder violated the prohibition against hearsay, as well as Rule 404(b)’s prohibition against character evidence, since the murder was not temporally close to the charged offenses, and revealed no common modus operandi.
The district court also erred in the admission of hearsay evidence that one defendant had previously beat up his girlfriend.
The district court also erred in the admission of a police officer’s testimony that he "received information" about defendant committing murders. "The district court explained that it allowed this testimony because it believed that the statements were relevant not to prove their truth, but rather to explain how [the officer] conducted his investigation. We do not understand this reasoning." The Court pointed out that the only relevance of the hearsay was to show who committed the murders.
The district court also erred in admitting police testimony about what he learned when he arrived at the scene of a shooting. These statements were "unquestionably inadmissible hearsay."
The district court further erred in admitting testimony from a declarant, who later died, identifying his assailants. The statement was hearsay, and was not a dying declaration because it was not made believing death was imminent. Further, its admission violated Rule 404(b) because it involved a murder which was not "inextricably intertwined" with the charged offenses.
The district court also erred in admitting police testimony about what witnesses told him about another murder, and Miami Herald articles identifying the perpetrators. This was inadmissible hearsay. It also violated Rule 404(b) because it involved conduct which occurred "outside the temporal scope of all the charged crimes."
The district court did not err in admitting murder victims’ statements to their parents that they feared being killed by a defendant (they were killed). The statements were "present sense impression" statements, admissible under Rule 803(1), and they did not violate Rule 404(b) because these murders were connected with the modus operandi of the defendants’ drug business.
The district court did not err in admitting statements given to police by a witness to a murder, because defense counsel "invited" the error by cross-examining the police about statements made by the witness, and the non-responsive answer was then elaborated on by the police witness on re-direct. The defendants not represented by this defense counsel could raise a plain error challenge to the testimony, having not elicited the testimony themselves, but having not objected either.
The district court also erred in admitting evidence that one of the defendants was featured on the television show "America’s Most Wanted." This evidence was both inadmissible hearsay and "incredibly" inadmissible under Rule 404(b).
The district court also erred in not allowing the defense to cross-examine a government witness concerning the exculpatory portions of a witness statement. This ruling violated Rule 106, which allows a party to introduce a portion of an exhibit, or testimony, which ought to be considered with the portion introduced by the opposing party.
Reviewing the cumulative effect of the above errors on the trials of each defendant, the Court upheld convictions for the defendants as to whom the evidence of guilt was otherwise overwhelming, and reversed as to defendants for whom the evidence was "weak."
The Court rejected several defendants’ challenge to the sufficiency of the evidence, finding it sufficient to sustain their convictions.
Turning to several defendants’ challenge to the denial of their motion for severance, the Court noted that the prosecution’s case involved evidence regarding several murders carried out by one drug trafficking gang against another gang. The Court rejected this challenge, noting that most of the prosecution’s case involved evidence of drug trafficking, not murder, that the murders were linked to the drug trafficking activity, making them relevant to the case, and that most of the defendants were implicated in the murders. The "spillover effect" of the murder evidence was not sufficiently prejudicial to warrant a new trial.
Citing Deck v. Missouri, 125 S.Ct. 2007 (2005), the Court acknowledged that shackling of criminal defendants should "rarely" be used, but found that the defendants who were shackled were not entitled to a new trial. The Court pointed out that bunting draped around defense table prevented the jury from seeing the shackles.
The Court found no error in the district court’s denial of a motion for severance. Given the length of the trial, the trial court had a "legitimate" concern about scheduling the trial. In addition, one defendant had adequate time to "shop" for a new lawyer once it became apparent that his lawyer would not be able to represent him on the date of the scheduled trial.
Turning to sentencing issues, the Court found no error in imposing a sentence enhancement for murder based on hearsay testimony, noting that a sentencing court may consider any relevant information. The Court rejected a number of other challenges to sentences, including a plain error Booker argument, finding no evidence that the judge would have imposed a lesser sentence under an advisory regime.

Arias FRE 408 Applies in Criminal Cases

In U.S. v. Arias, No. 03-12185 (Dec. 12, 2005), the Court (Tjoflat, Barkett & Mills b.d.) upheld most convictions and sentences for defendants convicted of defrauding the Medicare program, but found one error, though harmless, in the failure to exclude evidence under Fed. R. Evid. 408, and reversed one conviction because the defendant was denied a jury instruction concerning his statute of limitations defense.
Rule 408 provides that evidence of compromise of a claim is not admissible. Over defense objection based on Rule 408, the trial court allowed the prosecution to introduce evidence that the defendant, in an administrative proceeding brought by the Florida Department of Health, had admitted certain allegations in order to avoid more formal proceedings and additional penalties. The government argued that Rule 408 does not apply in criminal proceedings, only in civil proceedings. Recognizing a circuit split on this issue, the Court ruled that Rule 408 does apply in criminal cases. The Court found support for its interpretation in the language of the rule, the advisory committee notes, and in the policy favoring settlements.
However, in light of the overwhelming evidence against this defendant, the Court found the Rule 408 error to be harmless.
The Court agreed with another defendant, who claimed that the district court improperly refused to instruct the jury on his withdrawal from the conspiracy defense, an error which affected his statute of limitations defense because the withdrawal occurred more than five years before the government charged him.
The Court noted that mere cessation of participation is not sufficient to establish withdrawal; the accused must also establish that he communicated his withdrawal either to his co-conspirators or to law enforcement.
Here, the defendant, a doctor, relied on a letter notifying Blue Cross/Blue Shield that he was no longer working at seeing patients on behalf of his co-conspirators fraudulent enterprise. Other evidence supported this termination, including subsequent cancellation letters. Viewing this evidence in the light most favorable to the defendant, and in light of the "extremely low" burden the defendant had to meet to be entitled to a jury instruction on his defense, it was error not to give it, and this error warranted a remand for a new trial.

Matthews: Rule 404(b) "turned on its head"?

In U.S. v. Matthews, 2005 WL 3291400 (Dec. 6, 2005), the Court (Tjoflat, Hill, Granade b.d.), on panel rehearing, vacated its prior published opinion which had 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). The Court otherwise reaffirmed its prior rejection of defendant’s other arguments.
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These witnesses testified that Matthews participating in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail.
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 noted that the evidence of the defendant’s 1991 conviction for drug trafficking was "relevant" to the charges for more recent drug trafficking, finding that a defendant’s not guilty plea places his intent at issue. The Court recognized that there was an eight-year gap between the prior conviction and the offenses charged in this case, but concluded that this did not make the prior evidence "too abstracted" to be sufficiently probative. The Court concluded that the evidence was not unduly prejudicial, finding that the government needed the evidence to establish the defendant’s intent.
[In a separate concurrence, Judge Tjoflat recognized that the 404(b) result was dictated by prior precedent, but called for the Court to reexamine this precedent, which had "turned Rule 404(b) on its head."].

Caldwell: Brother's sporting possession of firearm

In U.S. v. Caldwell, No. 05-12640 (Dec. 5, 2005), the Court affirmed a conviction and sentence imposed on a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
The defendant claimed that he had found his brother’s firearm, which the brother used for sporting purposes, and had pawned it because he was aware that it was unlawful for him to possess it. The pawning was meant to dispossess the defendant of the fireaerm.
The Court rejected this challenge to the defendant’s conviction, pointing out that his defense fell short of what was required to establish a "necessity" defense.
The Court also rejected the defendant’s claim that he was entitled to a lower sentence under USSG § 2K2.1 because he possessed the firearm "solely for sporting purposes." The Court pointed out that it was the defendant’s brother who possessed the firearm for sporting purposes, not the defendant himself, who possessed the firearm to pawn it. The Court acknowledged cases in other circuits which had construed the Guideline more liberally, but the Court gave it a narrow application and found that Caldwell was not eligible for the lower sentence. The Court noted that the district court had found Caldwell’s reason for possessing the firearm unconvincing, pointing out that Caldwell never gave the pawn ticket to his brother, or the money he received from the pawn shop.

Talley: Guideline sentence not per reasonable

In U.S. v. Talley, No. 05-11353 (Dec. 2, 2005), the Court rejected the government’s argument that, post-Booker, a sentence within the guideline range is "per se reasonable," but held that a sentence is not unreasonable when the district court fails to mention or discuss all of the sentencing factors set forth in 18 U.S.C. § 3553(a).
Citing U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005), the Court stated that "an acknowledgment by the district court that it has considered the defendant’s arguments and the factors in section 3553(a) is sufficient." In Talley’s case, the district court satisfied this requirement when it stated at sentencing: "Based on all the facts and circumstances of this case, I think that the guidelines do produce a fair and reasonable sentence considering the factors set forth in 18, section 3553(a)." No further elaboration was necessary.
The Court rejected the government’s position that a Guideline sentence was "per se reasonable," but noted that "use of the Guidelines remains central to the sentencing process." The Court added: "ordinarily we would expect a sentence within the Guideline range to be reasonable."
Reviewing the sentence for "reasonableness," the Court noted that this was a deferential standard of review. "In our evaluation of a sentence for reasonableness, we recognize that there is a range of reasonable sentences from which the district court may choose, and when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be reasonable." In Talley's case, he could not point to anything that suggested that his low-end of Guideline sentence was unreasonable.

Grant: Full face value of counterfeit checks

In U.S. v. Grant, No. 04-12268 (Nov. 29, 2005), the Court upheld a loss amount calculation, for sentencing purposes for a defendant convicted of producing and possessing counterfeit corporate checks, which included the full face amount of checks found in the defendant’s possession.
The Court noted that the Guidelines direct courts to measure "intended loss." The Court noted authority in other circuits that one can assumed that a defendant intended to utilize the full face value of worthless checks. The Court analogized to credit card theft, in which it has held that the intended loss includes the total line of credit to which defendants have access. The Court further pointed to circumstantial evidence that Grant intended to utilize the full face value of the checks, and to Grant’s inability to point to countervailing evidence. In a footnote, the Court dismissed the impossibility of a defendant’s using the full face value of a counterfeit check (because the account had insufficient funds), noting that the defendant’s subjective intent governs the loss calculation under the Guidelines.

Rahim: 924(c) conviction for both bank robbery & carjacking

In U.S. v. Rahim, No. 05-11087 (Nov. 29, 2005), the Court upheld two convictions for 924(c) violations arising out of a bank robbery and a subsequent carjacking in an attempt to escape from the bank robbery. The Court rejected the argument that a single 924(c) conviction was possible, because the robbery and the carjacking were part of a single course of conduct. The Court sided with other circuits to have considered the issue in rejecting this interpretation of § 924(c). The Court also rejected a Double Jeopardy challenge to the twin convictions, pointing out that each § 924(c) conviction involved a fact which the other did not (one involved use of a firearm during a bank robbery, the other during a carjacking), and therefore satisfied the test of Blockburger v. U.S., 284 U.S. 299 (1932).
Finally, the Court rejected the argument that the defendant was incompetent at sentencing, agreeing with the district court that the defendant was faking mental incompetence to avoid being sentenced.

Glover: Guideline mid-range sentence not harmless error under Booker

In U.S. v. Glover, No. 04-16745 (Nov. 29, 2005), the Court upheld the defendant’s conviction for being a felon in possession of a firearm, but vacated his sentence for Booker error.
The Court rejected the argument that his statement was obtained in violation of Miranda because he lacked sufficient I.Q. to understand the warnings. The Court noted the police testimony that Glover interacted normally and intelligently with the arresting officers.
The Court also rejected Glover’s challenge to the sufficiency of the evidence, noting that two witnesses testified that the gun was his.
The Court found that there was Booker error in the sentencing court’s reliance on mandatory Guidelines, and that this error was not harmless. The Court rejected the government’s argument that the error was harmless because the judge imposed sentence in the middle of the Guidelines range. Though recognizing cases in other circuits which took the government’s position, the Court found that the fact of a mid-range sentence did not suffice to meet the government’s heavy burden of showing that a sentence imposed under a then-mandatory system represented harmless error.

Williams: Does relevant conduct for possession encompass assault?

In U.S. v. Williams, No. 05-11318 (Nov. 30, 2005), the Court (Anderson, Carnes, Black) approved an enhancement for use of a firearm which caused was discharged and caused serious bodily injury, even though the defendant, though charged with being a felon in possession of a fiream was not charged or convicted of possessing a firearm used in a separate assault, but another firearm. The Court concluded that the Guideline encompassed "any" fireram, which "covers any fireram that is used in connection with the commission of another offense which is within the relevant conduct of the charged offense."
The Court noted a circuit split on the meaning of the Guideline cross-reference, but concluded that the term "any firearm" as used in the Guideline can apply to firearms not named in the indictment.
The Court also noted a circuit split on whether the other offenses which can be encompassed with a Guideline cross-reference must also be part of "relevant conduct." The Court concluded that conduct must be part of "relevant conduct" in order to be a basis for enhancement under the USSG § 2K2.1(c)(1) cross-reference.
The Court noted that the Government had argued that the assault in which another firearm was used should be considered part of "relevant conduct" because it was conduct that should be "grouped" under § 3D1.2(d). However, the government’s argument was misplaced, because the Guidelines specifically exclude "assault" from grouping analysis. Because this was the only rationale for the enhancement, the Court vacated the sentence and remanded for resentencing, at which the district court could examine whether other Guideline provisions allow assault to be considered "relevant conduct" for a firearm possession offense.

Michael: No ineffective assistance on PTSD defense

In Michael v. Crosby, No. 04-10137 (Nov. 21, 2005), the Court affirmed the district court's denial of a habeas petition by a state inmate convicted of killing her ex-husband by shooting and stabbing him several times in the presence of their two sons. Specifically, the Court held that the state court's decision, following a full evidentiary hearing, that Michael's counsel was not ineffective under Strickland was not contrary to, or an unreasonable application of, clearly established federal law. Michael argued that her trial attorney had rendered ineffective assistance by failing to properly investigate or present a PTSD defense. Her trial attorney had testified at the state habeas hearing that, at the time of the trial, PTSD evidence was not admissible under Florida law to establish a complete defense. He thus elected to pursue a defense based on Battered Spouse Syndrome. When his experts opined that Michael did not suffer from BSS, counsel pursued a defense of learned helplessness which was included in the diagnosis of one expert. All the experts agreed that Michael exhibited symptoms of PTSD. The trial court excluded the evidence of learned helplessness. Michael was acquitted of first-degree murder and convicted of the lesser-included offense of second-degree murder with a firearm. The trial court sentenced her to life imprisonment based largely on the brutal nature of the offense and the fact that her children were present at the scene of the crime. The state court, on habeas review, found that the decision of trial counsel was a reasonable trial strategy in light of the law on PTSD evidence at the time. It thus held that counsel was not ineffective under Strickland. The Court agreed with the district court that the state court decision was not contrary to, or an unreasonable application of, Strickland and affirmed the denial of habeas relief.

Wood: Obstruction enhancement ok for 1st trial

In U.S. v. Wood, No. 04-11849 (Nov. 21, 2005), the Court affirmed a 97-month sentence for importation of 500 grams or more of cocaine. First, the Court rejected Mr. Wood's claim that the district court improperly included an obstruction of justice enhancement in its guidelines calculation where the enhancement was based on his testimony at his initial trial and where he did not testify at the re-trial following a reversal by the court of appeals on grounds unrelated to the obstruction. The Court then found that there was Booker error where the district court imposed a sentence under a mandatory guidelines scheme. However, reviewing for plain error, the Court held that Wood failed to demonstrate that the district court would have imposed a lower sentence even though it imposed a sentence at the low-end of the sentencing range.

Munoz: Sufficient telemarking fraud evidence

In U.S. v. Munoz, No. 03-16216 (Nov. 23, 2005), the Court let stand the convictions and sentences of the appellants, Munoz and Llona, who had been tried and convicted for their part of a scheme to illegally sell, through telemarketing and without the requisite prescriptions, two treatments for erectile dysfunction. Briefly, Munoz and Llona concocted a scheme involving a urologist and a pharmacist in which the urologist would write phony prescriptions, in the names of his real patients, for three prescription drugs used to treat erectile dysfunction. The pharmacist would then combine the three drugs into an urethral suppository and ship that back to the urologist. Munoz and Llona would pay for the drugs, including a nice profit for the doctor and pharmacist, and would then sell the suppository without a prescription through telemarketing, mostly over Spanish airwaves, under the name "Power-Gel." An oral form, "Vigor," was later added. The telemarketing touted "Power-Gel" and "Vigor" as all-natural, non-prescription drugs that were safe to use even by those suffering from diabetes, high blood pressure, heart problems, kidney problems, etc. The drugs were also touted as being 100% effective. Following a trial, the appellants were convicted of conspiracy, mail fraud and introducing into interstate commerce a misbranded prescription drug. They were acquitted on charges of money-laundering conspiracy, wire fraud, and misbranding drugs after shipment in interstate commerce. The district court sentenced each of them to a 51-month term of imprisonment.
The Court rejected indictment and sufficiency challenges to the charge that the appellants conspired to sell prescription drugs without a prescription. The challenges rested largely on the fact that the urologist had in fact written prescriptions for the drugs. The Court pointed out that despite the fraudulent prescriptions, Munoz and Llona knowingly sold the drugs to the eventual users without a prescription. Affirming the mail fraud convictions against a sufficiency claim, the Court held that it was "irrelevant whether or not appellants personally knew of, communicated with, or directed activities toward the six named victims."
The Court also rejected a challenge to the district court's loss calculation of $1.5M to $2.5M. The Court noted that a sentencing court may calculate loss from either the perspective of the actual loss to the victims or the actual gain by the defendants. Here, the district court used a hybrid system in which it calculated the gain by the defendants ($2.21M) and reduced it by 30% based in large part from the trial testimony that the placebo effect alone would have helped 30% of users. The Court noted that both figures were within the calculated range. Finally, reviewing for plain error, the Court held that, despite the presence of a Booker error, the appellants failed to demonstrate that the district court would have imposed a lower sentence under an advisory sentencing scheme.

James: Possession of 200 grams of cocaine is "serious drug offense"

In U.S. v. James, No. 04-12915 (Nov. 17, 2005), the Court, on appeal by the government, vacated a 71-month sentence for a felon-in-possession conviction and remanded with instructions to resentence Mr. James as an armed career criminal with a fifteen-year minimum mandatory sentence. At the core of the appeal was the question of whether a Florida conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine constituted a "serious drug offense" under the ACCA. The district court noted that under Florida law such a conviction did not have as an element the intent to distribute, and it thus reasoned that it did not qualify as a predicate offense under the ACCA which defines a serious drug offense as a offense "involving" the intent to distribute. Reversing, the Court held that Florida law "infers an intent to distribute once a defendant possesses a certain amount of drugs," and that the conviction qualified as a predicate offense. On cross-appeal, the Court affirmed the district court's holding that attempted burglary of a dwelling is a "violent felony" under the ACCA.

Ibarra-Castellano: Crawford does not bar warrant of deportation document

In U.S. v. Ibarra-Cantellano, No. 05-11143 (Nov. 15, 2005), the Court affirmed the defendant’s conviction and 100-month sentence for illegal reentry after deportation following a conviction of an aggravated felony.
The Court rejected the argument, based on Crawford v. Washington, 541 U.S. 36 (2004), that it violated the Confrontation Clause for the government to rely on a warrant of deportation document to establish that Cantellano had previously been deported, and that Cantellano had the right to confront the government agent who actually witnessed him leave the country. The Court ntoed that Crawford merely reached the Confrontation Clause requirements for "testimonial" evidence. The Court found that a warrant of deportation was non-testimonial evidence, because it "is recorded routinely and not in preparation for a criminal trial." The Court noted that its holding was consistent with the two other Circuits to have reached the issue.
The Court also rejected the argument that Crawford applied at the sentencing hearing, and should have precluded the admission of hearsay evidence. The Court noted that other circuits had also concluded that Crawford’s Confrontation Clause holding does not apply at sentencing.
The Court also rejected the argument that Shepherd v. U.S., 125 S.Ct. 1254 (2005), which held that a sentencing court cannot consider police reports and complaint applications to determine the nature of a prior conviction, did not preclude a court, at sentencing, from relying on presentence reports and fingerprint records to determine the fact – as opposed to the nature – of the defendant’s having been previously convicted of a felony.
Finally, the Court rejected the argument that the Sixth Amendment precluded the judge from relying on the fact of a prior conviction to enhance the sentence, citing Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Rojas: Criminal case does not include obligor/indemnitor contract dispute

In U.S. v. Rojas, No. 04-10877 (Nov. 10, 2005), the Court held that a district court lacks subject matter jurisdiction, as part of a criminal proceeding, to adjudicate a dispute between an obligor who pledged collateral with a surety company for a bond for a criminal defendant out on bail, and the surety company, regarding the amount of money owed by the surety to the pledgor after the defendant failed to appear and the collateral was forfeited. The Court pointed out that the dispute did not involve the forfeiture of a bond "or any of that," but merely a contractual dispute over the indemnification contract. This dispute should have been resolved in a separate civil proceeding. The Court therefore vacated the order of the district court which directed payment by the surety to the obligor.

Jordan: No prosecutorial misconduct, no Double Jeopardy bar

In U.S. v. Jordan, No. 04-15381 (Nov. 3, 2005), the Court (Anderson, Black, Carnes), on a defendant’s interlocutory appeal, held that there was no basis for a Double Jeopardy bar to a second trial after the first trial had ended because the district court had found prosecutorial misconduct, but the Court of Appeals had determined that there was, in fact, no prosecutorial misconduct.
The defendant argued that even though the Court of Appeals had found no prosecutorial misconduct, the intent of the prosecutor was to goad the defense into making a motion for a mistrial, and that even though this motion was ultimately unsuccessful, Double Jeopardy should prevent further prosecution because the prosecution’s intent was wrongful.
The Court rejected the argument finding that it was precluded by the law of the case doctrine. The Court noted that a jurisdictional premise for its prior decision, which found no prosecutorial misconduct and reversed the district court’s dismissal of the case, was that Double Jeopardy would not bar further jurisdiction. Having held in its prior decision that it had jurisdiction to consider the government’s appeal, the Court implicitly held that Double Jeopardy would not bar further prosecution. This holding was now the law of the case, and doomed a Double Jeopardy challenge to further prosecution.
The Court further stated that, even if the law of the case had not applied, and even if it accepted the defendant’s "far fetched" theory that the prosecution opposed dismissal of the case on prosecutorial misconduct grounds while really trying to goad the defendant into seeking dismissal of the case, this theory would not support a Double Jeopardy bar. The Court held that prosecutorial misconduct – which it had no found present in this case – was a necessary element for a Double Jeopardy bar to apply in these circumstances.

Moriarty: Lifelong supervised release for sex offender

In U.S. v. Moriarty, No. 04-13683 (Nov. 1, 2005), the Court affirmed a conviction but reversed in part a sentence of a defendant who pled guilty to three counts of child pornography-related offenses.
The Court recognized that the district court failed during the plea colloquy to fully obtain a guilty plea from Moriarty, and to inform him of certain waivers which accompanied the decision to plead guilty. However, reviewing the matter to see if Moriarty’s "substantial rights" were affected, the Court noted that Moriarty responded "Because I am guilty" to the court’s questionind. Further, Moriarty could not show a "reasonable probability" that, but for the omitted plea information, he would not have pled guilty.
The Court rejected the argument that Booker error required reversal of Moriarty sentence. The Court pointed out that the district court at sentencing expressed intent to take Moriarty "out of society" by imposing the statutory maximum 240-month sentence and a lifelong term of supervised release. This indicated that Moriarty would not have received a lesser sentence under the advisory Guideline regime.
The Court also rejected the challenge to a USSG § 2G2.2(b)(4) five-level enhancement for a pattern of activity involving the sexual abuse of a minor (whether or not this conduct occurred during the course of the offense of conviction). At sentencing, one of Moriarty’s neighbors testified to a number of facts indicating that on one occasion, Moriarty had broken into her six-year old son’s bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The Court found that this evidence sufficed to support the enhancement.
The Court also rejected the challenge to the district court’s refusal to grant a downward adjustment for acceptance of responsibility, despite Moriarty’s guilty plea. The Court noted that Moriarty contested the § 2G2.2(b)(4) enhancement, and that this was a basis for denying the acceptance of responsibility adjustment.
The Court rejected an Eighth Amendment challenge to the lifelong term of supervised release. The Court noted that Moriarty was 21 when he committed the offenses, but, regardless of his moral responsibility, the need for supervised release was to fulfill the goal of rehabilitation, and was consistent with the legislative history of the statute.
The Court, however, agreed with Moriarty that the "general sentence" of twenty years, which did not specify a specific count of conviction, and which exceeded the 10-year maximum for one count, was invalid . The Court vacated the sentence for "clarification" of the sentence. Similarly, the lifelong term of supervised release imposed as part of a general sentence was invalid, because the district court did not specify the count of conviction which supported this term of supervised release, and it exceeded the maximum for one count of conviction.

Dye: Sixth Circuit reversed on habeas

In Dye v. Hofbauer, No. 04-8384 (Oct. 11, 2005), the Supreme Court reversed the denial of habeas relief to a Michigan defendant. The Court found that the Sixth Circuit was wrong on both reasons it gave for denying habeas relief. Contrary to this opinion, first, the inmate did raise in state court a constitutional challenge to the prosecutor’s misconduct during the jury trial, and, second, the inmate did raise this same claim with sufficient particularity in his federal habeas petition.

Schriro v. Smith: States get first crack at mental retardation rules

In Schriro v. Smith, No. 04-1475 (Oct. 17, 2005), the Supreme Court summarily reversed the Ninth Circuit’s order requiring a jury trial on the question of the mental retardation of a Arizona defendant sentenced to death. The Court noted that Atkins v. Virginia, 536 U.S. 304 (2002) instructed the States to develop ways to enforce the constitutional restriction on the execution of the mentally retarded. The Ninth Circuit, therefore, was not authorized to impose a jury trial condition before Arizona developed its own procedures.

Eberhart: Rule 33 7-day deadline not jurisdictional

In Eberhart v. U.S., No. 04-9949 (Oct. 31, 2005), the Supreme Court held that the time limit of Fed. R. Crim. P. 33(a) for motions for a new trial, which requires such motions to be filed "within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period," is not jurisdictional. Instead, it is a "claim processing rule." Such rules are forfeitable by the party opposing the untimely motion if they are not properly invoked. The Court acknowledge confusion in its precedent which led Circuit Courts to treat Rule 33(a) as jurisdictional.

Kane: Pro se right to law library not clearly established

In Kane v. Espitia, No. 04-1538 (Oct. 31, 2005), the Supreme Court reversed the Ninth Circuit’s grant of habeas corpus relief to a California inmate who chose to proceed pro se but who was denied access to a law library in preparation for trial. The Court pointed out that its precedent, including Farretta v. California, 422 U.S. 806 (1975), had not clearly established whether a pro se defendant is entitled to library access, and in the absence of such caselaw one could not say that the California state rulings were contrary to clearly established law, as required by 28 U.S.C. § 2254(d)(1).http://a257.g.akamaitech.net/7/257/2422/31oct20051045/www.supremecourtus.gov/opinions/05pdf/04-1538.pdf

York: Waldon governs grand jury publicity

In U.S. v. York, No. 04-12354 (Oct. 27, 2005), the Court affirmed a conviction and 1,620-month sentence on a defendant convicted of RICO conspiracy and other crimes arising out of the interstate transport of minors with the intent to engage in unlawful sexual activity.
The Court rejected the argument that the indictment was invalid because the Georgia grand jury which indicted him was infected with adverse pre-trial publicity. The Court noted that U.S. v. Waldon, 363 F.3d 1103 (11th Cir. 2003) held that the protections against publicity affecting a jury during trial did not apply to a grand jury. The Court explained that its distinction was based on the different functions of the two bodies, and the different procedural restrictions which apply. Further, York did not show that the publicity surrounding his case "substantially influenced" the decision to indict him.
The Court also rejected the argument that the sexual abuse charges should have been severed from the financial structuring charges. The Court "readily" concluded that York showed no "actual prejudice," and noted that the jury was specifically instructed to consider each count separately.
Finally, the Court found no Booker plain error in York’s sentence. The Court pointed out that that district court, while imposing the consecutive sentences which yielded the 1,620-month total, stated the sentence was "appropriate" in light of "the nature of the crimes, the victims involved, the length of the sentence, and the totality of the circumstances." These comments undercut any inference of plain error based on the district court’s misapprehension of its powers under the then-mandatory Guidelines.
Finally, the Court rejected an ex post facto challenge to the court’s reliance on a 2000 version of the Guidelines, noting that an "essentially identical" version of the specific cross-reference at issue was in effect in the earlier version of the Guidelines.

Ochoa: No Batson "pattern" vs. hispanics

In U.S. v. Ochoa-Vasquez, No. 03-14400 (Oct. 20, 2005), the Court (Hull, Edenfield b.d., Barkett dissenting), the Court affirmed the conviction and sentence for drug trafficking.
The Court rejected the argument that certain documents in a related case should have been unsealed, because they involved a potential witness. The Court noted that most of the documents had been unsealed, and that Ochoa’s renewed motion to unseal had failed to specify the new grounds for the unsealing in violation of the Local Rule, which requires the different facts for a renewed motion to be stated by the movant. Further, the failure to unseal the documents did not prejudice Ochoa, because he failed to show he would have called the potential witness, and the Court’s own review of the documents did not reveal anything exonerating Ochoa.
The Court agreed with Ochoa that the district court’s "sealed docket" violated the Court’s caselaw regarding open trials, but found no prejudice because the district court ultimately unsealed most of the documents, and the other documents did not contain exonerating material.
The Court upheld the district court’s decision to empanel an anonymous jury, noting Ochoa’s link to an organized criminal organization and past efforts to obstruct justice by killing informants.
The Court rejected Ochoa’s Batson challenge to the government’s use of peremptory challenges against Hispanic venirepersons. Ochoa’s challenge rested on the percentage of strikes used to eliminate Hispanic jurors. But the district court found that it could not ascertain which anonymous venirepersons were Hispanic, and the Court deferred to that finding. The Court noted that the better practice would be to disclose to the parties beforehand, in anonymous jury cases, the self-reported ethnicity of potential jurors. Moreover, even if the district court could in fact determine the ethnicity of the stricken jurors, Ochoa failed to show a "pattern" of strikes. The government used five of its nine strikes against Hispanics, but accepted six; Ochoa struck seven of 13.

Callahan: no habeas relief for trial judge stepping into police interrogation

In Callahan v. Campbell, No. 04-12009 (Oct. 5, 2005), the Court (Tjoflat, Black, Wilson) denied habeas relief to a death row inmate sentenced to death for a 1982 murder.
The Court rejected challenges based on the fact that the Alabama trial judge who ultimately presided over Callahan’s trial stepped into the police interrogation room, while Callahan was being interrogated after arrest, to ascertain whether his right to counsel was being respected.
The Court found no Supreme Court case directly on point, and noted that the Supreme Court has merely held that a judge cannot adjudicate a case where he was also an investigator for the government. Here, the judge was not an investigator for the government, having not been in the room during the interrogation, and having only interved on the right to counsel question.
Further, the judge’s failure to recuse himself did not violate Callahan’s Sixth Amendment right to call witnesses. The Court noted that others testified about the incident and that the law does not give a defendant a right to call "a witness he perceives as most credible."
The Court also rejected the argument that Callahan’s trial lawyer was constitutionally ineffective for failing to object to the admission of some of Callahan’s incriminating statements to police. The Court noted that the Alabama state courts had found that these specific statements were admissible under state law, and that a lawyer is not ineffective for not objecting to statements that were admissible.
The Court also found that Callahan’s lawyer, Knight, who had since died, was not ineffective at the penalty phase. For one, when a lawyer is dead and unavailable, the Court presumes he was not ineffective. For another: "When we place ourselves in Knight’s position, which we must, we see the following: overwhelming evidence that his client committed a premeditated kidnapping, rape, and murder of a random victim, including a confession to the kidnapping and rape in which he concocted a prior sexual relationship with the victim, and insinuated his ex-wife was the real murderer; his client’s last two wives left him, in part, bexause he was physically abusive; his client had two previous convictions for assault with intent to murder, one of which arose from when he shot his own 11-year-old nice in the foot; his client’s past included no compelling mitigation evidence, such as mental health problems or physical abuse; and his client had already once been sentenced to death for the murder [in a sentence that was overturned and remanded]. Given the hand Knight was delath, we cannot say a decision to focus on mercy instead of mitigation was an unreasonable one."

Lee: Sufficient Mail Fraud Evidence

In U.S. v. Lee, No. 04-12485 (Oct. 5, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed two defendants’ mail fraud convictions, but vacated one sentence on a double counting issue as to which the parties agreed.. The scheme involved writing checks on closed bank accounts.
The Court rejected the defendants’ challenge to the sufficiency of the evidence, finding that the letters the defendants wrote to their banks about their bank accounts were designed to further their scheme, that the letter written about foreclosure of their property were also designed to "obfuscate." The Court rejected the argument that the mailings were litigation documents which could not give rise to criminal liability. The Court distinguished U.S. v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002), pointing out that the documents at issue did not involve court filings, but third-parties, whom they were trying to influence as part of their scheme. Moreover, Pendergraft did not involve documents which evidenced an "intent to deceive." The Court recognized "the real public policy concerns in allowing litigation documents to form the basis for a mail fraud claim," but said "it cannot countenance mailng false claims clothed in legalese to lenders, with the intent of perpetrating or perpetuating a fraud, even where litigation is ongoing."
Turning to the Booker sentencing issues, the Court found no error as to one defendant where the district court stated on the record that it would have given the defendant the same sentence whether the Guidelines were mandatory or advisory. As to the other defendant, the Court found no error in denying her a continuance so that she could be sentenced post-Blakely, because counsel ultimately informed the court that the defendant was prepared to go forward on the appointed sentencing date.
The Court rejected a challenge to the loss amount calculation, finding the court’s estimate of the loss was supported by the evidence. The Court also rejected defendant’s argument that the sentence should have reduced because the scheme was interrupted when the victims refused to honor the bad checks. The Court noted that an interruption beyond the control of the defendant is not a basis for a sentence reduction.
The Court rejected the argument that the sentence should not have been enhanced based on the existence of ten or more victims because some of these victims were able to offset their losses. The Court concluded that despite the offset, the victims were still considered victims for Guidelines purposes.
Finally, the Court rejected a hearsay challenge to the admission of a bank letter warning the defendants of "potential bank fraud," finding that the letter was not admitted for its truth, but for the purpose of showing that the banks were aware that the transactions were wrongful and so informed the defendants. The Court also rejected the challenge to the testimony of a lawyer that the defendants’ actions were illegal, pointing out that this statement was elicited on redirect, in response to cross-examination which opened the door.

Ramirez. Booker plain error where court felt it had no discretion

In U.S. v. Ramirez, No. 04-12040 (Sept. 30, 2005), the Court (Tjoflat, Anderson & Birch) affirmed the defendants’ cocaine-trafficking convictions, but vacated the sentences, finding "plain error" under Booker.
Co-defendants Ramirez and Angulo-Quinones were arrested on the high-seas; they had been aboard a go-fast vessel which contained more than 400 kilos of cocaine. Over Angulo-Quinones’ objection, the district court admitted in evidence, during his cross-examination, the fact of his arrest for a prior incident also involving a go-fast vessel and large quantities of cocaine.
The Court rejected Ramirez’ challenge to the sufficiency of the evidence. The Court concluded that his presence in proximity to a large quantity of cocaine in clear view on board his vessel, coupled with his changing account of events, sufficed to convict.
The Court also rejected Ramirez’ argument that his case should been severed, because of the prejudicial impact of the admission of Angulo-Quinones’ prior arrest for a similar offense. The Court found that any prejudicial impact was mitigated by the judge’s limiting instruction.
The Court also found no basis for a mistrial in the trial court’s instruction to the jury, in response to a question from the jury during deliberations, that it need no concern itself with this question. The Court found the instruction proper in the circumstances.
The Court found no reversible error in the admission of Angulo-Quinones’ prior arrest for a similar crime. The evidence was introduced during cross-examination, and was sufficiently relevant to Angulo-Quinones’ denial of not being acquainted with an accomplice in both incidents, and to his intent for the instant offense.
The Court rejected the "double-counting" challenge to the Guideline increase in Angulo-Quinones’ sentence for being a captain of a vessel, and for being the "leader and organizer" of the offense. The Court noted that it has approved the imposition of both enhancements in like circumstances in U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003), and it rejected Angulo-Quinones’ attempt to distinguish this case on its facts, pointing out that Rendon did not require "specific facts" to be present for the two enhancements to be simultaneously applicable. Further, the district court correctly determined that Rendon controlled the double-counting challenge. However, because the Court was vacating the sentence under Booker, and because it could not be certaint that the district court would have given both enhancements in light of Booker, the Court instructed the district court to "revisit" the organizer/leader and captain of the boat enhancements
on remand.
Finally, the Court found plain error under Booker in the sentences. During sentencing, the district court said that it might have imposed a different sentence had it had "any discretion in this matter." Instead, the court said it felt bound by the Guidelines, and imposed sentences of 235 months and life on Ramirez and Angulo-Quinones, respectively. This showed plain error. The Court therefore vacated the sentences and remanded for resentencing. http://www.ca11.uscourts.gov/opinions/ops/200412040.pdf

Scott: Post Booker sentencing need not discuss each 3553(a) factor

In U.S. v. Scott, No. 05-1183 (Sept. 27, 2005), the Court affirmed the district court’s decision not to impose a sentence below the advisory Guideline range.
The Court noted that the law does not require the district court "to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors." The district court "adequately and properly considered the § 3553(a) sentencing factors," as evidenced by the fact that Scott’s counsel "argued at length that the factors in § 35539a) warranted a sentence below the Guidelines range." "In imposing a sentence at the low end of the Guidelines range, the district court stated that it had considered all the obvious things that you would normally take in consideration, particularly ‘the age of the child [victim].’ Thus, the district court explicitly considered the circumstances of the offenses. Further, the district court explicitly acknowledged that it had considered Scott’s arguments at sentencing and that it had considered the factors set forth in § 3553(a). This statement alone is sufficient in post-Booker sentences."

Quan Chau: Crawford Inapplicable at Sentencing

In U.S. v. Quan Chau, No. 05-10640 (Sept. 27, 2005), the Court, on "plain error" review, rejected the argument that the sentencing court erred in using hearsay evidence at the defendant’s sentencing hearing, in violation of the Confrontation Clause right recognized in Crawford v. Washington, 541 U.S. 36 (2004).
The Court noted that Crawford involved the use of testimonial evidence at trial, not sentencing. The Court recognized that its rule may be extended to sentencings in the future. However, in view of other Circuits’ holdings that Crawford does not alter the law that admission of hearsay testimony at sentencings is "okay," and the absence of precedent from the Eleventh Circuit or the Supreme Court on point, no plain error occurred.
The Court also rejected the challlenge to the defendant’s sentence, pointing out that the district court recognized its post-Booker authority to treat the Guidelines as advisory, even as it imposed a Guideline sentence.

Thompson: sentence vacated for Booker plain error

In U.S. v. Thompson, No. 04-12218 (Sept. 1, 2005), the Court upheld the convictions but vacated the sentences of defendants convicted of cocaine trafficking.
The Court rejected a challenge to the sufficiency of the evidence, noting the "parade" of government witnesses who testified as to their involvement in drug trafficking.
The Court also rejected one defendant’s motion for a severance. The Court pointed out that a post-arrest statement of one defendant did not mention a co-defendant, and its admission in evidence therefore did not violate the Confrontation Clause. Moreover, the "spillover effect" of evidence of one defendant as to another was not of a nature to create prejudice.
The Court also rejected a motion for a new trial based on new evidence, finding that, with diligence, the defendant could have obtained the evidence before trial.
The Court also rejected one defendant’s claim that her post-arrest statements were involuntary. The Court noted the credibility question presented as to whether the police withheld pain medication until they obtained responses to their questioning, but noted the Magistrate Judge’s resolution of these questions, and found no error in the district court’s adoption of them.
The Court also rejected the argument that the prosecutor’s closing statement violated the defendant’s right not to testify when it told the jury not to reward the co-defendant for testifying. The Court noted that the prosecutor did not directly or indirectly tell the jury to consider this defendant’s decision not to testify.
Finally, reviewing the sentences for Booker error under the plain error test, the Court vacated the sentences. The Court pointed out that during sentencing the district court characterized the 360-month as severe, and wondered whether it effectuated Congress’ true intent. The defendants therefore met the "heavy" burden of showing plain error.

Williams: Supervised release violations capped

In U.S. v. Williams, No. 04-15732 (Sept. 19, 2005), the Court (Dubina, Carnes, Marcus) reversed the imposition of a 21-month term of incarceration for a violation of supervised release, because Williams had previously been sentenced to incarceration for previous violation of supervised release, and the 21-month sentence would cause his total time incarcerated to exceed the 2-year aggregate maximum for supervised release violations. In so ruling, the Court accepted the government’s concession that the applicable statute (since revised), 18 U.S.C. § 3583(e)(3), contemplated a two-year statutory cap for the aggregate of all supervised release violations.
The Court rejected other issues on appeal because (a) a notice of appeal was not filed as to a prior first revocation of supervised release, (b) Williams failed to exhaust administrative remedies regarding his claim for additional credit for time served by not first pursuing this issue in a claim before the Bureau of Prisons, and (c) Williams other challenge to his sentence was moot because of the Court’s vacatur of the sentence on the grounds discussed above.

Howell: Felon can't get his guns back

In U.S. v. Howell, No. 04-13343 (Sept. 15, 2005), the Court (Birch, Carnes, Fay) held that the district court correctly rejected the defendant’s Rule 41 motion for return of $140,000 seized at the time of arrest and for the return of three firearms seized during a consented search at this residence.
The Court pointed out that the $140,000 was government cash used in sting operation to purchase drugs from Howell – a transcation for which he was convicted. Accordingly, this cash "never belonged to the defendant and he never gained ownership or control of these funds." Further, the Court rejected the argument that a court, not the government, should decide to whom the cash belonged: "The money belonged to the government at all times throughout the drug transaction."
The Court also noted that because Howell was a felon, he was not entitled to return of the firearms. This was contrary to federal law. The court noted that even constructive possession of a firearm by a criminal was illegal, and therefore declined to allow the firearms to gun to a relative, to be put up for sale.

Miranda: Reversing judgment of acquittal

In U.S. v. Miranda, No. 04-15920 (Sept. 14, 2005), the Court (Tjoflat, Pryor, Alarcon b.d.) reversed a judgment of acquittal granted to a defendant convicted of conspiracy to distribute methamphetamine.
The district court had found the evidence insufficient to sustain a conviction, concluding that it only showed that Miranda was present in an apartment containing methamphetamine, and fled to a back room when police stormed the premises. Reversing, the Court pointed to a number of facts which the jury could have attached incriminatory inferences to. Miranda had a pre-existing relationship with a significant drug figure. Miranda was present in the aparmtment when durgs were being couriered, and possibly discussed. There was a pervasive smell of acetone in the apartment. When officers raided the apartment, Miranda immediately ran to a back bedroom which contained large quantities of drugs, and two firearms, thereby attempting to protect the drugs from being seized and use guns to do so. (This evidence also supported Miranda’s conviction for possession of a firearm in furtherance of a drug trafficking crime).
Further, the district court relied on exculpatory evidence that was not presented to the jury. This should not have been considered in the motion for acquittal.
The Court rejected Miranda’s argument that the judgment of acquittal, alternatively, should be upheld based on the prosecutorial misconduct at trial. The Court pointed out that Rule 29 refers only to the insufficiency of the evidence.
The Court recognized that, on remand, the district court was free to reconsider its denial of Miranda’s motion for new trial, despite Miranda’s failure to cross-appeal this issue. The Court expressed on view on the merits of this motion.

Elso: Lawyer Laundering Client's Drug Cash

In U.S. v. Elso, No. 04-13043 (Sept. 2, 2005), the Court (Barkett, Marcus & George b.d.) the Court affirmed money laundering convictions against a lawyer charged with laundering the drug proceeds of one of his clients. Elso went to his client’s home to pick up cash and was apprehended driving away, with the cash.
Elso was charged with violating 18 U.S.C. §§ 1956(a)(1)(B)(i) & (ii) & § 1956(h). This provision criminalizes transactions designed to conceal the location of the proceeds of unlawful activity. Elso noted that another money laundering statute, § 1957, creates an exemption for "monetary transactions" which involve the payment of attorneys’ fees, and argued that this exemption applied to § 1956 charges, and that the jury should have been so instructed. The Court rejected this argument, noting that the two statutes are worded differently. In addition, Elso was in effect asking for an instruction that he should not be convicted if he lacked the mens rea for the crime, and the Court found that the court’s instructions adequately informed the jury of this.
The Court also rejected the argument that simply picking up cash did not constitute a money laundering "transaction." "Elso’s actions of retrieving [the client’s] money from a safe in [his] home, placing it in his car, and driving away constituted a transfer, and therefore qualified as a ‘transaction.’"

Winning ear, losing appeal

In U.S. v. Winingear, No. 05-11198 (Aug. 30, 2005), the Court (Tjoflat, Dubina, Pryor) rejected the defendant’s argument that a sentence was unreasonable because it should have been subjected to a downward departure to reflect the amount of time he had already spent in state prison.
The Court first noted that Booker did not change the pre-Booker rule that a district court’s discretionary denial of a downward departure was unappealable. Here, the district court recognized its authority to depart based on time spent in state prison, but declined to do so; hence, its ruling was unappealable.
The Court also rejected Winningear’s argument that his sentence was unreasonable. The Court noted the government’s claim that, post-Booker, sentences within the Guidelines are per se reasonable, but the Court declined to reach this argument. The Court noted that the sentence imposed on Winningear was one-tenth the length of the twenty-year maximum for his mail fraud offense. Further, Winningear defrauded people $19,600, had multiple previous convictions, committed his crime while still under sentence for a previous crime, violated his bond, and threatened to murder arresting officers as he fled them. The district court took care that its sentence provided Winningear with needed medical care. "In light of the factors outlined in section 3553(a), the sentence of the district court was reasonable."

Bordon: Feeney Amendment not Ex Post Facto

In U.S. v. Bordon, No. 04-10654 (Aug. 25, 2005), the Court (Anderson, Pryor, Hill), on a third appeal following a sentening and a resentencing, affirmed the sentences.
The defendants argued that it would violate Ex Post Facto to apply the Feeney Amendment provision which required a sentencing court to apply the version of the Guidelines which was in effect at the time of the defendants’ original sentencing. Application of this version of the Guidelines would deny the defendants the benefit of a recent change in the Guidelines. The Court noted that Ex Post Facto does not guarantee favorable changes in the law but merely protects against increased penalties.
The Court also affirmed the district court’s refusal to reconsider the monetary loss associated with the offenses, pointing out that the "law of the case" doctrine precluded revisiting this issue.
The Court also rejected the argument that the seventeen month delay betwen the issuance of the mandate after the second appeal and the subsequent resentencing violated the right to a speedy trial. The Court pointed out that a large part of the delay was due to defendants’ own brieifing of complicated issues.
In a footnote, the Court noted that no Booker relief was appropriate, despite the evidence "plain error" in the sentence – the district court stated on the record it would have imposed a lesser sentence but for the mandatory guidelines – because the defendants failed to raise Booker in their initial briefs.

Moreno: Limits on 3582(c)(2) relief

In U.S. v. Moreno, No. 04-15950 (Aug. 26, 2005) the Court (Birch, Dubina & Barkett) held that a defendant was not eligible for a post- conviction reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) to invoke the benefit of Amendment 591 of the Sentencing Guidelines, or to take account, in accord with Booker, of his post-sentencing rehabilitative efforts.
Amendment 591 requires that the initial selection of the offense guideline be based only on the statute of conviction rather than on non-jury findings of actual conduct. Moreno claimed that this Amendment prohibited the district court from selecting a base offense level based on drug quantity not found by a jury. The Court rejected this argument, holding that Amendment 591 only applies to the selection of the relevant offense guideline, not to the selection of an offense level within the applicable offense guideline.
The Court also found no plain error in the district court’s determination that it lacked a jurisdictional basis to reduce Moreno’s conduct based on his post-sentencing rehabilitative conduct. The Court noted that § 3582 does not contemplate a de novo sentencing. Further, Booker does not apply to cases on collateral review: "Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions."

Acosta: Interstate mailing need not involve "actual mailman"

In U.S. v. Acosta, No. 04-16480 (Aug. 24, 2005), the Court (Birch, Barkett, Wilson) held that the government satisfied the interstate jurisdictional requirement of the statute which criminalizes receipt of child pornography, and affirmed the district court’s denial of Acosta’s motion for judgment of acquittal.
After Acosta agreed by email to purchase a videotape containing child pornography, an undercover agent sent a videotape by registered mail to a post inspector in Miami. This inspector, in turn, packaged it as an express mail package to simulate its condition as if it were an actual package mailed from out of state, and then, dressed as a mail letter carrier, personally delivered the package to Acosta, who signed for the package.
The Court held that these facts established that the videotape was "mailed, shipped or transported in interstate commerce, by any means," in violation of 18 U.S.C. §§ 2252(A)(a)(%)(B) and (b)(2). The Court noted the "by any means" portion of the statute, and noted that this foreclosed Acosta’s argument that the evidence was insufficient because the case did not involve an "actual post office," or an "actual mailman."