In Valle v. Sec. for Dep’t of Corrections, No. 05-15724 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder of a Coral Gables police officer.
Valle claimed that counsel was ineffective because he presented evidence that Valle had been a "model" prisoner, which opened the door for the State to show that he twice tried to escape from prison. The Court found that Valle failed to meet the "prejudice" prong of an ineffectiveness claim.
The Court also rejected Valle’s Batson claim, noting that the prosecutor’s reasons for dismissing black jurors were race neutral, that two black jurors served on the jury, and that Valle himself was not black.
The Court also rejected the claim that his confession was obtained in violation of his Miranda rights, agreeing with the state courts that Valle had not unequivocally invoked his right to remain silent when he told police that he had an attorney who had advised him not to speak to anybody.
Finally, the Court agreed with the Florida Supreme Court that Valle could not prevail on his claim that petit and grand juries in Miami-Dade underrepresented Latin Americans in the relevant time period, because Latin Americans encompass people from too many different backgrounds to constitute a cognizable class for equal protection analysis.
Monday, August 14, 2006
Hallford: Brady violation not prejudicial
In Hallford v. Culliver, No. 05-12621 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1986 murder.
Hallford claimed that a Brady violation occurred when the State failed to disclose a plea agreement with the victim’s daughter, who was the lead witness against him. The Court recognized that such evidence can be material, but here its withholding was not sufficiently prejudicial to the defendant, in light of the other overwhelming evidence against him.
The Court also rejected an ineffective assistance of counsel claim. The Court found that it was not ineffective for counsel to open the door to evidence that the defendant had committed incest with his daughter who testified against him, as attacks on the daughter’s credibility were a logical part of the guilty phase of the case.
Hallford claimed that a Brady violation occurred when the State failed to disclose a plea agreement with the victim’s daughter, who was the lead witness against him. The Court recognized that such evidence can be material, but here its withholding was not sufficiently prejudicial to the defendant, in light of the other overwhelming evidence against him.
The Court also rejected an ineffective assistance of counsel claim. The Court found that it was not ineffective for counsel to open the door to evidence that the defendant had committed incest with his daughter who testified against him, as attacks on the daughter’s credibility were a logical part of the guilty phase of the case.
Campa: Cuban Spies Tried in Fair Venue
In U.S. v. Campa, No. 01-17176 (Aug. 9, 2006) (en banc), the Court, reversing the prior panel decision, held that the district court did not abuse its discretion in denying a change of venue in the "Cuban spy trial," and remanded the case to the panel for adjudication of the other issues raised on appeal by the defendants.
Noting the "extremely heavy" burden of defendants who seek to establish presumed pretrial publicity, the Court found that the newspaper articles were too remote in time to show that the trial was "utterly corrupted by press coverage." Further, the Court agreed with the district court that a voter survey was too ambiguous to be reliable. In addition, the Court found that the voir dire was a "model" for a high-profile case, which rebutted any claim of prejudice. During the trial, the trial court "fiercely guarded the jury from outside intrusions."
The Court also rejected the defendant’s reliance, as the basis for a motion for a new trial, on the government’s own arguments in an employment case, in which the government argued that the Elian Gonzalez case had so inflamed views in Miami-Dade as to make a fair trial impossible there. The Court found that the doctrine of judicial estoppel did not undermine the government’s different positions in the two cases.
Noting the "extremely heavy" burden of defendants who seek to establish presumed pretrial publicity, the Court found that the newspaper articles were too remote in time to show that the trial was "utterly corrupted by press coverage." Further, the Court agreed with the district court that a voter survey was too ambiguous to be reliable. In addition, the Court found that the voir dire was a "model" for a high-profile case, which rebutted any claim of prejudice. During the trial, the trial court "fiercely guarded the jury from outside intrusions."
The Court also rejected the defendant’s reliance, as the basis for a motion for a new trial, on the government’s own arguments in an employment case, in which the government argued that the Elian Gonzalez case had so inflamed views in Miami-Dade as to make a fair trial impossible there. The Court found that the doctrine of judicial estoppel did not undermine the government’s different positions in the two cases.
Friday, August 11, 2006
Smith: Commerce Clause Power over Child Pornography
In U.S. v.Smith, No. 03-13639 (Aug. 11, 2006), the Court, on remand from the Supreme Court, affirmed the defendant’s convictions for producing and possessing child pornography.
In its prior decision in this case, the Court, applying the "plain error" standard of review, had held the statutes of conviction unconstitutional as applied to Smith, because the interstate nexus, namely, the use of photography materials produced interstate, was insufficient to justify the exercise of Congress’ Commerce Clause power. On remand from the Supreme Court, the Court noted the subsequent change in law effected by Gonzalez v. Raich, 545 U.S. 1 (2005), recognized in its own decision in U.S. v. Maxwell, which upheld the federal regulation of the wholly intrastate cultivation and sale of marihuana, reasoning that Congress can regulate purely local activities which are part of an economic class of activities that have a substantial effect on interstate commerce. The Court held that its prior plain error holding was no longer valid in light of Maxwell and Raich.
Turning to other issues, the Court rejected Smith’s claim of insufficiency of the evidence. The Court also rejected the argument that the "knowingly" element of the offense applied to the jurisdictional nexus, that is, to the interstate travel of the materials comprising the child pornography. The Court noted that there was no risk of penalizing innocent conduct by not requiring mens rea as to the interstate nexus, noting that there is no such thing as innocent intrastate possession of child pornography.
The Court rejected the Fourth Amendment challenge to the search of Smith’s home, finding that the "plain view" doctrine applied. Here, the police, searching for drugs, opened a lockbox which contained photos. It was "very obvious" that the females were minors. This created probable cause to believe a crime had been committed – regardless of whether police had beliefs as to the "technical" elements of the offense, such as whether Smith had "produced" the photos.
The Court also rejected Smith’s challenge to the out-of-court photo identification by one the victims. The Court noted that the police did not instruct the victim to identify the defendant, and that her identification of Smith was spontaneous.
The Court further rejected Smith’s challenge to the introduction in evidence of photo of him naked, and of naked photos of adult women. In the context of the trial, the photos made it Smith’s defense less probable, and were therefore admissible.
Further, applying the "plain error" standard of review, the Court rejected a number of Smith’s challenges to the evidence admitted, to the jury instructions, and to the lack of notice regarding the sentencing guidelines sentence.
In its prior decision in this case, the Court, applying the "plain error" standard of review, had held the statutes of conviction unconstitutional as applied to Smith, because the interstate nexus, namely, the use of photography materials produced interstate, was insufficient to justify the exercise of Congress’ Commerce Clause power. On remand from the Supreme Court, the Court noted the subsequent change in law effected by Gonzalez v. Raich, 545 U.S. 1 (2005), recognized in its own decision in U.S. v. Maxwell, which upheld the federal regulation of the wholly intrastate cultivation and sale of marihuana, reasoning that Congress can regulate purely local activities which are part of an economic class of activities that have a substantial effect on interstate commerce. The Court held that its prior plain error holding was no longer valid in light of Maxwell and Raich.
Turning to other issues, the Court rejected Smith’s claim of insufficiency of the evidence. The Court also rejected the argument that the "knowingly" element of the offense applied to the jurisdictional nexus, that is, to the interstate travel of the materials comprising the child pornography. The Court noted that there was no risk of penalizing innocent conduct by not requiring mens rea as to the interstate nexus, noting that there is no such thing as innocent intrastate possession of child pornography.
The Court rejected the Fourth Amendment challenge to the search of Smith’s home, finding that the "plain view" doctrine applied. Here, the police, searching for drugs, opened a lockbox which contained photos. It was "very obvious" that the females were minors. This created probable cause to believe a crime had been committed – regardless of whether police had beliefs as to the "technical" elements of the offense, such as whether Smith had "produced" the photos.
The Court also rejected Smith’s challenge to the out-of-court photo identification by one the victims. The Court noted that the police did not instruct the victim to identify the defendant, and that her identification of Smith was spontaneous.
The Court further rejected Smith’s challenge to the introduction in evidence of photo of him naked, and of naked photos of adult women. In the context of the trial, the photos made it Smith’s defense less probable, and were therefore admissible.
Further, applying the "plain error" standard of review, the Court rejected a number of Smith’s challenges to the evidence admitted, to the jury instructions, and to the lack of notice regarding the sentencing guidelines sentence.
Hunt: No Presumption in favor Guidelines post Booker
In U.S. v. Hunt, No. 05-11671 (Aug. 10, 2006), the Court held that, post-Booker, a district court "may determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination is made with reference to the remaining section 3553(a) factors that the court must also consider in calculating the defendant’s sentence." The Court held that there should be no "presumption" in favor of a Guidelines sentence.
The Court acknowledged that the district court when sentencing a defendant under the Guidelines (which reflect a 100:1 crack/powder differential) "made some statements that could be interpreted as presumptions in favor the Guidelines." However, the district court also stated that it believed the Guidelines were worthy of deference "in that particular case." Consequently, the setnence was reasonable.
The Court acknowledged that the district court when sentencing a defendant under the Guidelines (which reflect a 100:1 crack/powder differential) "made some statements that could be interpreted as presumptions in favor the Guidelines." However, the district court also stated that it believed the Guidelines were worthy of deference "in that particular case." Consequently, the setnence was reasonable.
Wednesday, August 09, 2006
Hightower: Defaulted Batson Violation
In Hightower v. Terry, No. 00-15807 (Aug. 8, 2006) (2-1) (Wilson, J. dissented), the Court denied habeas relief to a death row inmate convicted of 1987 murders.
Althought the case was remanded to the Court by the Supreme Court for reconsideration in light of Miller El, the Court found Miller El inapposite.
The Court noted that, when the case was in the Georgia state courts, Hightower did not raise a Batson challenge to jury selection when his conviction was on direct appeal to the Georgia Supreme Court. Consequently, Hightower could only prevail on a Batson challenge if he showed cause and prejudice respecting the failure to raise the issue in state court. The Court therefore found no reason to rule in Hightower’s behalf on the basis of Batson.
Althought the case was remanded to the Court by the Supreme Court for reconsideration in light of Miller El, the Court found Miller El inapposite.
The Court noted that, when the case was in the Georgia state courts, Hightower did not raise a Batson challenge to jury selection when his conviction was on direct appeal to the Georgia Supreme Court. Consequently, Hightower could only prevail on a Batson challenge if he showed cause and prejudice respecting the failure to raise the issue in state court. The Court therefore found no reason to rule in Hightower’s behalf on the basis of Batson.
Woodard: Affirming Conviction for Conspiracy to Deprive City of Honest Services
In U.S. v. Woodard, No. 04-12056 (Aug. 8, 2006), the Court affirmed mail fraud convictions.
The indictment charged the defendant with a single conspiracy with two unlawful objects: using the mails to defraud a city and its citizens (1) of money, and (2) of one defendant’s honest services. The jury instruction, however, instructed the jury that it could convict the defendants if it found one, not necessarily both of the objects, though it had to agree unanimously on this object. Rejecting the argument that the instruction in the disjunctive was error, citing its precedent the Court noted that proof as to only one of the means to accomplish a conspiracy suffices.
The Court also rejected the argument that the Pinkerton jury instruction, which provides that a defendant may be convicted of substantive offense based on the conduct of co-conspirators, effectively removed the intent element from the substantive mail fraud counts. Rejecting this argument, and reviewing the issue for "plain error," the Court found that the indictment’s description of the substantive counts did not make the jury’s finding "plainly insufficient."
Again reviewing for plain error, the Court rejected the argument that the jury should have been instructed on multiple conspiracies. The Court found that the evidence established a single conspiracy.
Finally, the Court rejected a defendant’s argument that his misuse of his public office was not unlawful, finding that he used his official position for personal financial gain, and concealed these transactions. The Court also rejected the co-conspirator’s argument that, as someone not employed by the city, she could not have deprived it of her "honest services." Private citizens, acting in conjunction with public officials, can violate the law.
Turning to sentencing, the Court rejected challenges to the loss amount calculation and the restitution ordered. The Court found that "every dollar" a defendant took deprived the City of his honest services and therefore should count as loss amount. The Court also found no error in ordering restitution to the City, instead of the individual citizen-victims, noting that the City was responsible ultimately for reimbursing the victims.
The indictment charged the defendant with a single conspiracy with two unlawful objects: using the mails to defraud a city and its citizens (1) of money, and (2) of one defendant’s honest services. The jury instruction, however, instructed the jury that it could convict the defendants if it found one, not necessarily both of the objects, though it had to agree unanimously on this object. Rejecting the argument that the instruction in the disjunctive was error, citing its precedent the Court noted that proof as to only one of the means to accomplish a conspiracy suffices.
The Court also rejected the argument that the Pinkerton jury instruction, which provides that a defendant may be convicted of substantive offense based on the conduct of co-conspirators, effectively removed the intent element from the substantive mail fraud counts. Rejecting this argument, and reviewing the issue for "plain error," the Court found that the indictment’s description of the substantive counts did not make the jury’s finding "plainly insufficient."
Again reviewing for plain error, the Court rejected the argument that the jury should have been instructed on multiple conspiracies. The Court found that the evidence established a single conspiracy.
Finally, the Court rejected a defendant’s argument that his misuse of his public office was not unlawful, finding that he used his official position for personal financial gain, and concealed these transactions. The Court also rejected the co-conspirator’s argument that, as someone not employed by the city, she could not have deprived it of her "honest services." Private citizens, acting in conjunction with public officials, can violate the law.
Turning to sentencing, the Court rejected challenges to the loss amount calculation and the restitution ordered. The Court found that "every dollar" a defendant took deprived the City of his honest services and therefore should count as loss amount. The Court also found no error in ordering restitution to the City, instead of the individual citizen-victims, noting that the City was responsible ultimately for reimbursing the victims.
Wade: Pre-indictment conduct not basis for acceptance denial
In U.S. v. Wade, No. 05-12518 (Aug. 4, 2006), the Court affirmed in part and reversed in part a sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g).
The Court rejected the defendant’s argument that a prior Georgia conviction for attempted burglary should not count as a "violent felony" for purposes of qualifying as an Armed Career Criminal under 18 U.S.C. § 924(e) and the Guidelines criminal history provisions. The Court pointed out that Wade conceded that his attempted burglary resulted from an attempt to kick in the door of a residence to commit a theft, conduct which creates a potential risk of physical injury sufficient to qualify as a "violent felony." The Court noted that it had reached a similar result in a prior case involving attempted burglary under Florida law.
The Court, however, agreed with the defendant that the district court erred when it denied him a two-level acceptance of responsibility sentence reduction, despite his timely guilty plea, because the defendant unlawfully possessed a firearm a few months after being arrested on state charges for the same unlawful possession offense, involving a different firearm. The Court noted that this conduct predated the indicment in the federal case. The relevant period for assessing acceptance of responsibility for a federal offense is post-federal indictment, not post-arrest on state charges. The Court noted the lost incentive to plead guilty if pre-indictment conduct could be a ground for denying the sentence reduction. The Court vacated the sentence, and remanded for resentencing, noting that the resentencing would take place under the new post-Booker regime.
The Court rejected the defendant’s argument that a prior Georgia conviction for attempted burglary should not count as a "violent felony" for purposes of qualifying as an Armed Career Criminal under 18 U.S.C. § 924(e) and the Guidelines criminal history provisions. The Court pointed out that Wade conceded that his attempted burglary resulted from an attempt to kick in the door of a residence to commit a theft, conduct which creates a potential risk of physical injury sufficient to qualify as a "violent felony." The Court noted that it had reached a similar result in a prior case involving attempted burglary under Florida law.
The Court, however, agreed with the defendant that the district court erred when it denied him a two-level acceptance of responsibility sentence reduction, despite his timely guilty plea, because the defendant unlawfully possessed a firearm a few months after being arrested on state charges for the same unlawful possession offense, involving a different firearm. The Court noted that this conduct predated the indicment in the federal case. The relevant period for assessing acceptance of responsibility for a federal offense is post-federal indictment, not post-arrest on state charges. The Court noted the lost incentive to plead guilty if pre-indictment conduct could be a ground for denying the sentence reduction. The Court vacated the sentence, and remanded for resentencing, noting that the resentencing would take place under the new post-Booker regime.
Thursday, August 03, 2006
Williams: No Ineffectiveness of Counsel
In Williams v. Allen, No. 05-12691 (Aug. 2, 2006), the Court affirmed the denial of habeas relief to a defendant sentenced to death for a 1988 murder.
The Court rejected the argument that Williams received ineffective assistance of counsel because counsel failed to review a file before trial. The Court found that no prejudice resulted from this, as the file would not have helped Williams sustain a relevancy objection to incriminating evidence.
The Court also rejected the argument that counsel was ineffective for failing to investigate mitigating evidence for use at sentencing. The pertinent information was in fact presented, and any deficiency did not undermine confidence in the outcome of the case.
Finally, the Court rejected the argument that counsel failed to investigate "reasonable doubt" as to whether Williams committed murder. The Court found that the theories of defense were adequately investigated, and any failure did not prejudice Williams.
The Court rejected the argument that Williams received ineffective assistance of counsel because counsel failed to review a file before trial. The Court found that no prejudice resulted from this, as the file would not have helped Williams sustain a relevancy objection to incriminating evidence.
The Court also rejected the argument that counsel was ineffective for failing to investigate mitigating evidence for use at sentencing. The pertinent information was in fact presented, and any deficiency did not undermine confidence in the outcome of the case.
Finally, the Court rejected the argument that counsel failed to investigate "reasonable doubt" as to whether Williams committed murder. The Court found that the theories of defense were adequately investigated, and any failure did not prejudice Williams.
Irizarry: Rule 32(h) Notice Not Required for Upward Variances
In U.S. v. Irizarry, No. 05-11718 (Aug. 1, 2006), the Court held that Fed. R. Crim. P. 32(h), which requires sentencing courts to give defendants advance notice of a possible imposition of an upward departure from the Guidelines range, does not apply to sentence enhancement imposed on the basis of 18 U.S.C. § 3553.
At sentencing, without advance notice, the court imposed a six-month variance above the Guideline range. The defendant pled guilty to making a threatening interstate communication to his wife, in violation of 18 U.S.C. § 875(c), and the court imposed a higher sentence because it concluded that additional protection was warranted because the defendant remained determined to threaten his wife.
Joining three other Circuits on this point, the Court held that Rule 32(h) does not apply to post-Booker variances, because parties are on notice that a court can select a sentence between the statutory maximum and minimum.
At sentencing, without advance notice, the court imposed a six-month variance above the Guideline range. The defendant pled guilty to making a threatening interstate communication to his wife, in violation of 18 U.S.C. § 875(c), and the court imposed a higher sentence because it concluded that additional protection was warranted because the defendant remained determined to threaten his wife.
Joining three other Circuits on this point, the Court held that Rule 32(h) does not apply to post-Booker variances, because parties are on notice that a court can select a sentence between the statutory maximum and minimum.
Monday, July 31, 2006
Taylor: Pond not within home's curtilage
In U.S. v. Taylor, No. 05-10658 (July 28, 2006), the Court, rejecting the defendant’s argument that his property was searched in violation of the Fourth Amendment, affirmed a defendant’s conviction for being a felon in possession of a firearm.
After two 911 calls were placed to police from the same number, with the caller hanging up immediately, police were sent to the place from which the calls originated. The property, which belonged to Taylor, was a five acre lot. On the property were a home, a nearby barn, and a pond 60 yards from the home. When police arrived, they drove by the gate to the home, which was open and saw Taylor walking toward them from the barn. Based on Taylor’s answers, police suspected that a violent domestic argument had just occured, and they asked for Taylor’s consent to search the barn. Finding nothing in the barn, the police followed a trail of fresh footsteps to the pond, where they saw a bag, which contained a gun. The gun was the basis for the felon-in-possession prosecution.
Citing the "knock and talk" exception to the warrant requirement, the Court noted that the police did not violate the Fourth Amendment by entering Taylor’s property and coming up to his house.
The Court further found that, although Taylor only consented to a search of his barn, this did not preclude police from searching the nearb pond. The Court noted that a consent is not necessary if the area searched is not within the curtilage of the home. Here, the pond was sixty yards from the house and thus not within its curtilage. Further, no activity on the pond was part of the intimate activity of the home. No enclosure surrounded both the home and the pond. And no steps were taken to protect the pond from observation by outsiders. The pond was the equivalent of an "open field," which could be searched by police without violating the Fourth Amendment.
After two 911 calls were placed to police from the same number, with the caller hanging up immediately, police were sent to the place from which the calls originated. The property, which belonged to Taylor, was a five acre lot. On the property were a home, a nearby barn, and a pond 60 yards from the home. When police arrived, they drove by the gate to the home, which was open and saw Taylor walking toward them from the barn. Based on Taylor’s answers, police suspected that a violent domestic argument had just occured, and they asked for Taylor’s consent to search the barn. Finding nothing in the barn, the police followed a trail of fresh footsteps to the pond, where they saw a bag, which contained a gun. The gun was the basis for the felon-in-possession prosecution.
Citing the "knock and talk" exception to the warrant requirement, the Court noted that the police did not violate the Fourth Amendment by entering Taylor’s property and coming up to his house.
The Court further found that, although Taylor only consented to a search of his barn, this did not preclude police from searching the nearb pond. The Court noted that a consent is not necessary if the area searched is not within the curtilage of the home. Here, the pond was sixty yards from the house and thus not within its curtilage. Further, no activity on the pond was part of the intimate activity of the home. No enclosure surrounded both the home and the pond. And no steps were taken to protect the pond from observation by outsiders. The pond was the equivalent of an "open field," which could be searched by police without violating the Fourth Amendment.
Monday, July 24, 2006
Williams: 100:1 Crack/Powder Disparity is Ok
In U.S. v. Williams, No. 05-13205 (July 21, 2006), on a government appeal, the Court reversed a district court’s sentence, finding that it improperly exercised its discretion under 18 U.S.C. § 3553(a) to reduce a defendant’s sentence based on the disproportionate crack vs powder cocaine rules, disagreement with the Guidelines career offender enhancements, and its belief that the government manipulated the sentence by arranging to purchase crack instead of powder cocaine in a sting operation.
The Court noted that the district court explained its lower sentence based the general 100-1 disparity between punishments for defendants convicted of crack cocaine trafficking compared to those convicted on powder cocaine charges. The Court found that in view of Congressional intent to maintain this disparity, and notwithstanding repeated criticisms of it by the sentencing commission, this was an impermissible sentencing consideration. "Federal courts are not at liberty to supplant this policy decision." The Court rejected reliance on § 3553(a)(6), finding that the disparity was not "unwarranted" because it was endorssed by Congress. Finally, the Court rejected the argument that the 100-1 ratio was Sentencing Commission, not Congressional, policy. Congress established the ratio, and rejected repeated Commission proposals to change it.
The Court noted that in cases where "individualized" factors might counsel against a Guideline sentence, the 100-1 ratio might not apply, but here the district court categorically rejected the 100-1 choice.
The Court also reversed the district court’s rejection of the "arbitrary compounding" effect of the career offender enhancement. The Court found that these Guidelines tracked Congress’ instruction to sentence repeat offenders "at or near" the statutory maximum.
Finally, the Court found no merit in the "sentencing manipulation" ground for a lesser sentence, finding it inapt in a case where the conviction was the result of a valid sting operation.
The Court found that none of the above errors were harmless, because the record demonstrated that the court relied on them when imposing sentence.
The Court noted that the district court explained its lower sentence based the general 100-1 disparity between punishments for defendants convicted of crack cocaine trafficking compared to those convicted on powder cocaine charges. The Court found that in view of Congressional intent to maintain this disparity, and notwithstanding repeated criticisms of it by the sentencing commission, this was an impermissible sentencing consideration. "Federal courts are not at liberty to supplant this policy decision." The Court rejected reliance on § 3553(a)(6), finding that the disparity was not "unwarranted" because it was endorssed by Congress. Finally, the Court rejected the argument that the 100-1 ratio was Sentencing Commission, not Congressional, policy. Congress established the ratio, and rejected repeated Commission proposals to change it.
The Court noted that in cases where "individualized" factors might counsel against a Guideline sentence, the 100-1 ratio might not apply, but here the district court categorically rejected the 100-1 choice.
The Court also reversed the district court’s rejection of the "arbitrary compounding" effect of the career offender enhancement. The Court found that these Guidelines tracked Congress’ instruction to sentence repeat offenders "at or near" the statutory maximum.
Finally, the Court found no merit in the "sentencing manipulation" ground for a lesser sentence, finding it inapt in a case where the conviction was the result of a valid sting operation.
The Court found that none of the above errors were harmless, because the record demonstrated that the court relied on them when imposing sentence.
Faust: Acquitted Conduct Can be Punished by Judge
In U.S. v. Faust, No. 05-11329 (July 21, 2006), the Court reaffirmed that, post-Booker, it does not violate the Sixth Amendment for a sentencing judge to enhance a defendant’s sentence based on conduct for which he was acquitted by a jury.
Faust was convicted of a single count of possessing cocaine with intent to distribute, but acquitted of all three remaining counts of possession of ecstasy with intent to distribute, possession of a firearm as a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. At sentencing, however, the judge enhanced Faust’s sentence based on ecstasy quantities, and based on possession of a dangerous weapon.
The Court first rejected Faust’s challenge to the sufficiency of the evidence, finding sufficient connection between Faust and the apartment at which cocaine was found to support his conviction.
The Court also rejected Faust’s challenge to the acquitted conduct-based sentence enhancements, standing by its prior resolution of this issue in U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005). [Barkett, J., concurred in this result, stating that she was bound by Circuit precedent, but noted that the precedent was incorrect, because factual findings by a judge ought to assess "contextual matters" such as the status of the victim, or the defendant’s role in the offense, not facts which constitute entirely free-standing offenses.]
Faust was convicted of a single count of possessing cocaine with intent to distribute, but acquitted of all three remaining counts of possession of ecstasy with intent to distribute, possession of a firearm as a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. At sentencing, however, the judge enhanced Faust’s sentence based on ecstasy quantities, and based on possession of a dangerous weapon.
The Court first rejected Faust’s challenge to the sufficiency of the evidence, finding sufficient connection between Faust and the apartment at which cocaine was found to support his conviction.
The Court also rejected Faust’s challenge to the acquitted conduct-based sentence enhancements, standing by its prior resolution of this issue in U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005). [Barkett, J., concurred in this result, stating that she was bound by Circuit precedent, but noted that the precedent was incorrect, because factual findings by a judge ought to assess "contextual matters" such as the status of the victim, or the defendant’s role in the offense, not facts which constitute entirely free-standing offenses.]
Thursday, July 20, 2006
Houston: Batson involves motives, not disparate impact
In U.S. v. Houston, No. 04-16524 (July 19, 2006), the Court rejected a Batson challenge to a conviction, but reversed the sentence on the basis of Booker error.
Pointing out that five out of the prosecution’s six peremptory strikes struck blacks from the venire, Houston claimed that improper race discrimination affected jury selection. The Court found no improper motive in the striking of one of the venirepersons for being asleep during voir dire. As to the four others, the Court accepted the prosecution’s explanation that all had a family member who had been convicted of a crime. The Court rejected Houston’s claim that blacks tend to have more family members convicted of crimes, holding that this "disparate impact" argument was not persuasive in the Batson context, which looks at motives. Further, other evidence – the race of the prosecutor (black), his being forthcoming and non-evasive supported a finding that his reasons were neutral, and not an invalid "sorting device" to hide discrimination.
The Court pointed out that the defense did not question the prosecutor’s reasons for keeping white jurors who also had family members with convictions. Hence, since the defendant bore the burden of proof, the Court had no basis for questioning the prosecutor’s credibility on this basis.
Turning to the sentence, the Court noted that the district court followed the Guideline instruction to impose the statutory maximum (in Houston’s case, 360 months) when the Guideline sentence exceeded the statutory maximum. The Court rejected the Government’s argument that the error was harmless, finding that the district court "very clearly" imposed a Guideline sentence. The Court reached the same conclusion regarding the sentence on a second count of conviction, for which the district court, again adhering to the Guidelines instruction, imposed a consecutive sentence at the mandatory minimum. The Court vacated the sentence and remanded for resentencing.
Pointing out that five out of the prosecution’s six peremptory strikes struck blacks from the venire, Houston claimed that improper race discrimination affected jury selection. The Court found no improper motive in the striking of one of the venirepersons for being asleep during voir dire. As to the four others, the Court accepted the prosecution’s explanation that all had a family member who had been convicted of a crime. The Court rejected Houston’s claim that blacks tend to have more family members convicted of crimes, holding that this "disparate impact" argument was not persuasive in the Batson context, which looks at motives. Further, other evidence – the race of the prosecutor (black), his being forthcoming and non-evasive supported a finding that his reasons were neutral, and not an invalid "sorting device" to hide discrimination.
The Court pointed out that the defense did not question the prosecutor’s reasons for keeping white jurors who also had family members with convictions. Hence, since the defendant bore the burden of proof, the Court had no basis for questioning the prosecutor’s credibility on this basis.
Turning to the sentence, the Court noted that the district court followed the Guideline instruction to impose the statutory maximum (in Houston’s case, 360 months) when the Guideline sentence exceeded the statutory maximum. The Court rejected the Government’s argument that the error was harmless, finding that the district court "very clearly" imposed a Guideline sentence. The Court reached the same conclusion regarding the sentence on a second count of conviction, for which the district court, again adhering to the Guidelines instruction, imposed a consecutive sentence at the mandatory minimum. The Court vacated the sentence and remanded for resentencing.
Tuesday, July 18, 2006
Griffith: Physical force means physical contact
In U.S. v. Griffith, No. 05-12448 (July 17, 2006), the Court held that a prior conviction for Georgia simple battery qualifies as a predicate offense for violating 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a "misdemeanor crime of domestic violence" to possess a firearm.
The Georgia statute defines simple battery as "intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another." The federal statute defines a misdemeanor crime of domestic violence as one which has as an element the use of physical force. Under a categorical approach which looked only to the elements of the Georgia statute, the Court found that "physical force" includes "physical contact." "A person cannot make physical contact – particularly of an insulting or provoking nature – with another without exerting some level of physical force." The Court sided with two other circuits to have considered the issue, and rejected the Ninth Circuit contrary interpretation of the statute, and the Seventh Circuit inconsistent resolution of the issue in a different context.
The Court rejected the argument that the domestic nature of the relationship in the predicate offense must be an element of the offense. The Court found that this was a fact in the offense, not an element.
The Georgia statute defines simple battery as "intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another." The federal statute defines a misdemeanor crime of domestic violence as one which has as an element the use of physical force. Under a categorical approach which looked only to the elements of the Georgia statute, the Court found that "physical force" includes "physical contact." "A person cannot make physical contact – particularly of an insulting or provoking nature – with another without exerting some level of physical force." The Court sided with two other circuits to have considered the issue, and rejected the Ninth Circuit contrary interpretation of the statute, and the Seventh Circuit inconsistent resolution of the issue in a different context.
The Court rejected the argument that the domestic nature of the relationship in the predicate offense must be an element of the offense. The Court found that this was a fact in the offense, not an element.
Occhicone: Giglio error does not warrant habeas relief
In Occhicone v. Crosby, No. 05-12502 (July 14, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1986 murder.
Pointing out that a state informant falsely testified at trial that he did not have a deal with the prosecution with respect to receiving a lesser sentence for a grand theft charge, Occhicone claimed that the Florida courts applied the wrong standard when they rejected this claim. The Florida courts applied the Brady standard, which requires the defendant to prove a reasonable probability that the result would have been different had the evidence been disclosed. However, Giglio applied to the prosecution’s failure to correct perjured testimony, and it provides for reversal when there is a reasonable likelihood that the exculpatory evidence affected the judgment of the jury.
The Court noted that the standard of review did not matter in this case, because even under a defense-favorable standard, no habeas relief should issue. First, the jury was aware that the witness received a sentence of probation only on the recent charge, and had been told about the witness getting a reduced sentence in another criminal case. Further, the other evidence against Occhicone greatly reduced the significance of the untruthful testimony.
Pointing out that a state informant falsely testified at trial that he did not have a deal with the prosecution with respect to receiving a lesser sentence for a grand theft charge, Occhicone claimed that the Florida courts applied the wrong standard when they rejected this claim. The Florida courts applied the Brady standard, which requires the defendant to prove a reasonable probability that the result would have been different had the evidence been disclosed. However, Giglio applied to the prosecution’s failure to correct perjured testimony, and it provides for reversal when there is a reasonable likelihood that the exculpatory evidence affected the judgment of the jury.
The Court noted that the standard of review did not matter in this case, because even under a defense-favorable standard, no habeas relief should issue. First, the jury was aware that the witness received a sentence of probation only on the recent charge, and had been told about the witness getting a reduced sentence in another criminal case. Further, the other evidence against Occhicone greatly reduced the significance of the untruthful testimony.
Ronda: Corrupt Police Officer Convictions Affirmed
In U.S. v. Ronda, No. 03-15640 (July 13, 2006), the Court (Tjoflat, Hull & Restani b.d.) affirmed the convictions and sentences of former Miami policemen involved in the fabrication of evidence to make police shootngs appear justified, by planting guns at the scenes of the shootings and/or making false statements to investigators.
Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), the Court rejected the argument that there was no federal nexus for their obstruction of justice convictions, because they lied to state, not federal, investigators. It suffices that it was "likely" that the misleading information would be transferred to a federal agent. Here, it was likely that such a federal investigation would occur. The Court distinguished Arthur Andersen v. U.S., 544 U.S. 696 (2005), as involving a different obstruction statute which referenced "an official proceeding," language not included in the statute defendants were charged with violating.
The Court rejected the argument that the jury should have been instructed about Florida’s fleeing felon statute, which authorizes police to shoot at fleeing felons in certain circumstances. The Court noted that the statute itself was introduced into evidence. Further, since the defendants still violated the law by obstructing investigations into the shootings, the justification for the shootings themselves under the fleeing felon statute had no legal impact on the elements of the obstruction offense.
The Court rejected the argument that there was no single over-arching conspiracy, finding "overwhelming" evidence to the contrary.
The Court rejected defendant Gonzalez’ argument that the evidence of perjury was insufficient. Contrary to Gonzalez’ claim that he had merely testified that he was uncertain about whether victims of police shootings had a gun, the transcript shows that Gonzalez said he believed they had a gun.
The Court affirmed the denial of a mistrial based on extrinsic evidence that one juror allegedly gave the jury during deliberations, based on watching tv reports of the trial. Further, though another juror’s home was burglarized during the trial, the trial court instructed the jury that this was in no way related to the trial. The trial court interviewed these jurors separately, and wisely chose to dismiss them.
Turning to the sentences, the Court found no Booker plain error, because the defendants did not show any comments by the district court that the sentences were too severe.
Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), the Court rejected the argument that there was no federal nexus for their obstruction of justice convictions, because they lied to state, not federal, investigators. It suffices that it was "likely" that the misleading information would be transferred to a federal agent. Here, it was likely that such a federal investigation would occur. The Court distinguished Arthur Andersen v. U.S., 544 U.S. 696 (2005), as involving a different obstruction statute which referenced "an official proceeding," language not included in the statute defendants were charged with violating.
The Court rejected the argument that the jury should have been instructed about Florida’s fleeing felon statute, which authorizes police to shoot at fleeing felons in certain circumstances. The Court noted that the statute itself was introduced into evidence. Further, since the defendants still violated the law by obstructing investigations into the shootings, the justification for the shootings themselves under the fleeing felon statute had no legal impact on the elements of the obstruction offense.
The Court rejected the argument that there was no single over-arching conspiracy, finding "overwhelming" evidence to the contrary.
The Court rejected defendant Gonzalez’ argument that the evidence of perjury was insufficient. Contrary to Gonzalez’ claim that he had merely testified that he was uncertain about whether victims of police shootings had a gun, the transcript shows that Gonzalez said he believed they had a gun.
The Court affirmed the denial of a mistrial based on extrinsic evidence that one juror allegedly gave the jury during deliberations, based on watching tv reports of the trial. Further, though another juror’s home was burglarized during the trial, the trial court instructed the jury that this was in no way related to the trial. The trial court interviewed these jurors separately, and wisely chose to dismiss them.
Turning to the sentences, the Court found no Booker plain error, because the defendants did not show any comments by the district court that the sentences were too severe.
Hamaker: Bank Fraud Conviction Upheld
In U.S. v. Hamaker, No. 03-12554 (11th Cir. 2006), the Court affirmed bank fraud convictions, and, on a government cross-appeal, reversed the sentence based on the district court’s erroneous calculation of the "loss" amount. The bank fraud arose out of defendant’s billing a bank for construction work that they did on the personal property of the bank’s CEO.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.
Monday, July 17, 2006
Martinelli: Money-laundering instruction need no specify fraud elements
In U.S. v. Martinelli, No. 04-13977 (July 10, 2006) (Dubina, Marcus, Cox), the Court upheld the money-laundering conviction of a defendant, arising out of a scheme to defraud small businesses, by persuading them to pay a fee for finding a buyer of the business, when, in reality, no such service was provided.
The Court rejected Martinelli’s challenge to the search of the business premises. The Court noted that although the affidavit upon which a search warrant was granted did not list the specific names of the complainant small businesses police contacted, "those people and entities were neither anonymous nor confidential." Each victim had personal knowledge of the crime. Moreover, there was a "high level of corroboration," with each complainant reporting that they paid money for the same purpose and never received services. Thus, there was a "fair probability" that contraband would be found at the business locations and the warrants were supported by probable cause.
The Court also rejected the argument that the warrant was overbroad in permitting seizure of "all" company files, noting that such a broad seizure was warranted when there were allegations of a pervasive scheme to defraud.
Reviewing the issue for "plain error," the Court rejected the argument that the money laundering jury instructions were erroneous in failing to instruct regarding the elements of mail fraud. The Court noted that Martinelli was charged with money laundering, not mail fraud. The government did not have to prove the elements of mail fraud, only that Martinelli knew that the funds he laundered "were derived from the specified unlawful activity of mail fraud." The Court further noted that it had found no plain error in like circumstances in U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). [Note: Cox, J., concurring, stated that he thought Silvestri was wrongly decided, because a jury could not find that a defendant knew the proceeds were derived from mail fraud without being instructed on what "mail fraud" involved].
The Court also rejected the argument that the jury should have been instructed on the "materiality" element of mail fraud. The Court noted that Martinelli himself need not have committed a mail fraud offense in order to be guilty of money laundering. Further, the district court, though not specifically defining materiality, told the jury that the specified unlawful activity was a scheme to defraud. Finally, Martinelli’s misreprensentations "were anything but immaterial."
The Court agreed with Martinelli that the district court should have given his requested "good faith" defense jury instruction. However, based on the instruction regarding whether Martinelli knew the proceeds were from a scheme to defraud, and on the "knowingly" element of the offense, that the jury had to find that the act "was done voluntarily and intentionally and not because of accident or mistake," the jury had to rule out the possibility that Martinelli actually harbored a good-faith belief in the legitimacy of the business before it could have found that he knew the money represented proceeds of mail fraud. Finally, the failure to give a good faith instruction did not impair Martinelli’s ability to present a defense, having argued good faith to the jury in closing argument.
The Court also rejected Martinelli’s challenge to the failure to instruct the jury that mere "puffing" or mere carrying on normal business expenses, did not constitute fraud, or money laundering. The Court found that the misrpresentations went beyond mere "puffing," and that the instructions sufficiently excluded the possibility of convicting based on legitimate non-fraudulent expenses.
Turning to the sentence, the Court found Booker error and remanded for resentencing.
The Court rejected Martinelli’s challenge to the search of the business premises. The Court noted that although the affidavit upon which a search warrant was granted did not list the specific names of the complainant small businesses police contacted, "those people and entities were neither anonymous nor confidential." Each victim had personal knowledge of the crime. Moreover, there was a "high level of corroboration," with each complainant reporting that they paid money for the same purpose and never received services. Thus, there was a "fair probability" that contraband would be found at the business locations and the warrants were supported by probable cause.
The Court also rejected the argument that the warrant was overbroad in permitting seizure of "all" company files, noting that such a broad seizure was warranted when there were allegations of a pervasive scheme to defraud.
Reviewing the issue for "plain error," the Court rejected the argument that the money laundering jury instructions were erroneous in failing to instruct regarding the elements of mail fraud. The Court noted that Martinelli was charged with money laundering, not mail fraud. The government did not have to prove the elements of mail fraud, only that Martinelli knew that the funds he laundered "were derived from the specified unlawful activity of mail fraud." The Court further noted that it had found no plain error in like circumstances in U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). [Note: Cox, J., concurring, stated that he thought Silvestri was wrongly decided, because a jury could not find that a defendant knew the proceeds were derived from mail fraud without being instructed on what "mail fraud" involved].
The Court also rejected the argument that the jury should have been instructed on the "materiality" element of mail fraud. The Court noted that Martinelli himself need not have committed a mail fraud offense in order to be guilty of money laundering. Further, the district court, though not specifically defining materiality, told the jury that the specified unlawful activity was a scheme to defraud. Finally, Martinelli’s misreprensentations "were anything but immaterial."
The Court agreed with Martinelli that the district court should have given his requested "good faith" defense jury instruction. However, based on the instruction regarding whether Martinelli knew the proceeds were from a scheme to defraud, and on the "knowingly" element of the offense, that the jury had to find that the act "was done voluntarily and intentionally and not because of accident or mistake," the jury had to rule out the possibility that Martinelli actually harbored a good-faith belief in the legitimacy of the business before it could have found that he knew the money represented proceeds of mail fraud. Finally, the failure to give a good faith instruction did not impair Martinelli’s ability to present a defense, having argued good faith to the jury in closing argument.
The Court also rejected Martinelli’s challenge to the failure to instruct the jury that mere "puffing" or mere carrying on normal business expenses, did not constitute fraud, or money laundering. The Court found that the misrpresentations went beyond mere "puffing," and that the instructions sufficiently excluded the possibility of convicting based on legitimate non-fraudulent expenses.
Turning to the sentence, the Court found Booker error and remanded for resentencing.
Friday, July 14, 2006
Martin: 7-day sentence too low for HealthSouth defrauder
In U.S. v. Martin, No. 05-16645 (July 11, 2006), on a government appeal of a sentence for a defendant convicted in the HealthSouth fraud, the Court vacated the sentence and remanded for resentencing.
After a first sentencing at which the district court imposed no imprisonment and only probation, and after a first remand after appeal based on the district court’s failure to explain its reasons for its significant downward departure, at resentencing the district court imposed just a seven-day sentence, noting the defendant’s substantial cooperation with the government in the prosecution of others involved in the fraud. The government appealed, arguing that, although the defendant should get a sentence reduction for cooperation, the sentence was too low in relation to his guideline range of 108-135 months.
Citing U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006), in which the Court vacated the lenient sentence imposed by the same district court on another executive involved in the HeathSouth fraud, the Court noted that a light sentence for such a massive fraud was not easily reconciliable with the § 3553(a) factors. Here, the district court made a 23-level downward departure. Even Martin’s extremely valuable cooperation was "not a get-out-of-jail-free card." Further, the district court erred by taking into account the "injury" to Martin resulting from his exposure to civil liability for his fraud, a liability which resulted not from his cooperation but from his misconduct. A seven-day sentence is "shockingly short." It failed to serve the purposes of § 3553(a), in failing to reflect the seriousness of the conduct, and to afford adequate deterrence (which the Court found particularly important in the context of white-collar crime). Further, though the district court cited the lack of jail time of the lead defendant, Richard Scrushy, he was not a "valid comparator" because he was acquitted on all counts. Finally, the Court ordered the case reassigned to another district judge, noting its prior reversals of the judge in this and related cases.
After a first sentencing at which the district court imposed no imprisonment and only probation, and after a first remand after appeal based on the district court’s failure to explain its reasons for its significant downward departure, at resentencing the district court imposed just a seven-day sentence, noting the defendant’s substantial cooperation with the government in the prosecution of others involved in the fraud. The government appealed, arguing that, although the defendant should get a sentence reduction for cooperation, the sentence was too low in relation to his guideline range of 108-135 months.
Citing U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006), in which the Court vacated the lenient sentence imposed by the same district court on another executive involved in the HeathSouth fraud, the Court noted that a light sentence for such a massive fraud was not easily reconciliable with the § 3553(a) factors. Here, the district court made a 23-level downward departure. Even Martin’s extremely valuable cooperation was "not a get-out-of-jail-free card." Further, the district court erred by taking into account the "injury" to Martin resulting from his exposure to civil liability for his fraud, a liability which resulted not from his cooperation but from his misconduct. A seven-day sentence is "shockingly short." It failed to serve the purposes of § 3553(a), in failing to reflect the seriousness of the conduct, and to afford adequate deterrence (which the Court found particularly important in the context of white-collar crime). Further, though the district court cited the lack of jail time of the lead defendant, Richard Scrushy, he was not a "valid comparator" because he was acquitted on all counts. Finally, the Court ordered the case reassigned to another district judge, noting its prior reversals of the judge in this and related cases.
Wednesday, July 12, 2006
Castro: Fast Track Program Not Unreasonable
In U.S. v. Castro, No. 05-16405 (July 12, 2006), the Court rejected a defendant’s challenge to his sentence for illegal reentry, finding no error in the refusal to grant him a downward departure based on the fact that some districts in the United States have a fast-track program that results in sentencing disparities.
Pointing out that some districts, but not his in the Northern District of Georgia, have a fast track program that allows defendants to plead guilty faster and receive a reduced sentence, Castro sought a lesser sentence on this basis, pointing to the disparities it creates among districts. The Court rejected this argument. The Court found that the sentence was consistent with the Guidelines. Further, any disparity created by the fast-track program was not within the scope of § 3553(a)(6), which instructs courts to avoid sentencing disparities. By allowing the fast-track program only in some districts Congress "implicitly determined that the disparity was warranted." In so holding, the Court joined every circuit to have considered the issue.
The Court rejected, on plain error review, an equal protection challenge to the fast track disparity. In the absence of precedent on point from the Supreme Court or the Eleventh Circuit, any error could not be "plain."
Pointing out that some districts, but not his in the Northern District of Georgia, have a fast track program that allows defendants to plead guilty faster and receive a reduced sentence, Castro sought a lesser sentence on this basis, pointing to the disparities it creates among districts. The Court rejected this argument. The Court found that the sentence was consistent with the Guidelines. Further, any disparity created by the fast-track program was not within the scope of § 3553(a)(6), which instructs courts to avoid sentencing disparities. By allowing the fast-track program only in some districts Congress "implicitly determined that the disparity was warranted." In so holding, the Court joined every circuit to have considered the issue.
The Court rejected, on plain error review, an equal protection challenge to the fast track disparity. In the absence of precedent on point from the Supreme Court or the Eleventh Circuit, any error could not be "plain."
Tuesday, July 11, 2006
Nunez: Reasonable Suspicion to stop car exiting suspected grow house
In U.S. v. Nunez, No. 04-14995 (July 11, 2006), the Court reversed the district court’s grant of suppression of evidence, finding that "reasonable suspicion" supported the police’s stop of a vehicle found to contain marijuana.
A police officer was conducting surveillance of a residence in Cape Coral, Florida, believed to be a marijuana grow house. He was told that a search warrant had been obtained for this residence, to search for marijuana. The officer observed Nunez carry a black garbage bag from the residence into a vehicle parked outside the residence. Later, the truck drove away. The officer stopped it, and smelled cannabis. The black garbage back contained 7.4 pounds of marijuana.
The officer had reasonable suspicion for the stop, the Court held, noting that the officer had reason to believe the bag, coming from a suspected marijuana grow house, which was under surveillance, contained marijuana or related contraband.
A police officer was conducting surveillance of a residence in Cape Coral, Florida, believed to be a marijuana grow house. He was told that a search warrant had been obtained for this residence, to search for marijuana. The officer observed Nunez carry a black garbage bag from the residence into a vehicle parked outside the residence. Later, the truck drove away. The officer stopped it, and smelled cannabis. The black garbage back contained 7.4 pounds of marijuana.
The officer had reasonable suspicion for the stop, the Court held, noting that the officer had reason to believe the bag, coming from a suspected marijuana grow house, which was under surveillance, contained marijuana or related contraband.
Monday, July 10, 2006
Poyato: Safety Valve Findings by Judge, not Jury
In U.S. v. Poyato, No. 05-13135 (July 10, 2006), the Court held that a jury’s acquittal on the court of being a felon in possession of a firearm did not affect a sentencing court determination whether a defendant is eligible for a safety valve sentence reduction below the mandatory minimum.
The defendant’s drug trafficking convictions subjected him to a minimum mandatory sentence of 36 months. The defendant would have been eligible for a safety valve sentence reduction below this minimum if, inter alia, he did not possess a firearm in connection with the offense. The district court stated that if it were the fact-finder, it would find that the defendant failed to satisfy this condition because it concluded by a preponderance of the evidence that the defendant possessed a firearm in connection with his drug trafficking. However, the court felt precluded, post-Booker, from making this finding because the jury had acquitted the defendant of the firearm count.
Reversing, the Court stated that the safety valve statute instructs the district court to make the relevant findings, and Booker did not affect this. Further, the safety valve involves sentencing below a minimum, not sentencing above a maximum, and therefore did not trigger the Apprendi principle. Finally, the safety valve statute instruction to sentence pursuant to the Guidelines did not trigger a maximum sentence, but an advisory sentence.
The defendant’s drug trafficking convictions subjected him to a minimum mandatory sentence of 36 months. The defendant would have been eligible for a safety valve sentence reduction below this minimum if, inter alia, he did not possess a firearm in connection with the offense. The district court stated that if it were the fact-finder, it would find that the defendant failed to satisfy this condition because it concluded by a preponderance of the evidence that the defendant possessed a firearm in connection with his drug trafficking. However, the court felt precluded, post-Booker, from making this finding because the jury had acquitted the defendant of the firearm count.
Reversing, the Court stated that the safety valve statute instructs the district court to make the relevant findings, and Booker did not affect this. Further, the safety valve involves sentencing below a minimum, not sentencing above a maximum, and therefore did not trigger the Apprendi principle. Finally, the safety valve statute instruction to sentence pursuant to the Guidelines did not trigger a maximum sentence, but an advisory sentence.
Crisp: Restitution alone not valid reason for 5 hr. sentence
In U.S. v. Crisp, No. 05-12304 (July 7, 2006), on a government appeal, the Court held that the district court erred when, in imposing sentence on a fraud defendant and in taking account of the defendant’s substantial assistance, the sentencing court imposed a sentence of five hours’ incarceration and probation.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.
Friday, July 07, 2006
Stickle: Venue in Southern District of Florida ok
In U.S. v. Stickle, No. 05-12077 (July 6, 2006), the Court rejected the arguments of the owner of a transportation company who was convicted of polluting international waters, after it dumped wheat contamined from oil into the Indian Ocean.
The defendant claimed that he was improperly charged with violating 33 C.F.R. § 151.10(a), which criminalizes dumping by a "ship other than an oil tanker." The ship in question was originally an oil tanker, but was later certified, inspected and approved for use as a freight vessel. The Court concluded that the indictment was therefore proper, noting that the approval forms the ship obtained clearly referred to use as a freight vessel, not an oil tanker.
The Court also rejected the argument that venue should have proved beyond a reasonable doubt, adhering to its caselaw which provides that matters that are not elements of the crime should be proved beyond a reasonable doubt.
The Court rejected the argument that venue did not exist in the Southern District of Florida for the conspiracy count, when the locus delicit was the Indian Ocean, and the only act committed in Florida was a co-conspirator’s lie in response to a question from a law enforcement agent investigating the offense. The Court held that "the jury reasonably concluded that the false statement impeded the inviestigation." [Query: What about the caselaw which holds that there is a distinction between a conspiracy and subsequent acts of concealment, e.g. Grunewald v. U.S., 353 U.S. 391 (1959)?].
The Court also rejected the argument that there was no venue in the Southern District of Florida for the substantive illegal discharge offense. The Court noted that because the offense occurred on the high seas, the last known residence of one of the offenders governed venue, and here one offender lived in the Southern District of Florida.
The defendant claimed that he was improperly charged with violating 33 C.F.R. § 151.10(a), which criminalizes dumping by a "ship other than an oil tanker." The ship in question was originally an oil tanker, but was later certified, inspected and approved for use as a freight vessel. The Court concluded that the indictment was therefore proper, noting that the approval forms the ship obtained clearly referred to use as a freight vessel, not an oil tanker.
The Court also rejected the argument that venue should have proved beyond a reasonable doubt, adhering to its caselaw which provides that matters that are not elements of the crime should be proved beyond a reasonable doubt.
The Court rejected the argument that venue did not exist in the Southern District of Florida for the conspiracy count, when the locus delicit was the Indian Ocean, and the only act committed in Florida was a co-conspirator’s lie in response to a question from a law enforcement agent investigating the offense. The Court held that "the jury reasonably concluded that the false statement impeded the inviestigation." [Query: What about the caselaw which holds that there is a distinction between a conspiracy and subsequent acts of concealment, e.g. Grunewald v. U.S., 353 U.S. 391 (1959)?].
The Court also rejected the argument that there was no venue in the Southern District of Florida for the substantive illegal discharge offense. The Court noted that because the offense occurred on the high seas, the last known residence of one of the offenders governed venue, and here one offender lived in the Southern District of Florida.
Tamari: Search of Arriving Vehicle Ok
In U.S. v. Tamari, No. 05-10618 (July 6, 2006), the Court rejected a defendant’s Fourth Amendment challenge to a search of his vehicle.
Law enforcement agents obtained a search warrant to search a rural property in Southwest Miami. The warrant authorized search of vehicles "on the property." While the search of the property was underway, the defendant appeared on the property, behind the wheel of a Hummer. After evasive answers and a failure to produce identification and the vehicle’s registration, the police searched his vehicle. It ultimately found evidence connecting Tamari to a drug trafficking conspiracy, for which he was convicted by a jury.
The Court rejected the argument that the warrant to search vehicles "on the property" did not authorize a search of a vehicle which was driven onto the property during the search, citing U.S. v. Alva, 885 F.2d 250 (5th Cir. 1989), which "passed on [this] precise question," and so also so held.
The Court stated that, in the alternative, the automobile exception applied, because the circumstances presented probable cause to search Tamari’s vehicle. The agents were searching a property which they believed was part of a large-scale drug conspiracy. They had already seized cocaine, cash and firearms on the premises when Tamari arrived in his vehicle. He gave evasive answers and was unable to produce identification or the vehicle’s registration.
Moreover, once a canine alerted to the vehicle this alone gave the agents probable cause for their search.
Law enforcement agents obtained a search warrant to search a rural property in Southwest Miami. The warrant authorized search of vehicles "on the property." While the search of the property was underway, the defendant appeared on the property, behind the wheel of a Hummer. After evasive answers and a failure to produce identification and the vehicle’s registration, the police searched his vehicle. It ultimately found evidence connecting Tamari to a drug trafficking conspiracy, for which he was convicted by a jury.
The Court rejected the argument that the warrant to search vehicles "on the property" did not authorize a search of a vehicle which was driven onto the property during the search, citing U.S. v. Alva, 885 F.2d 250 (5th Cir. 1989), which "passed on [this] precise question," and so also so held.
The Court stated that, in the alternative, the automobile exception applied, because the circumstances presented probable cause to search Tamari’s vehicle. The agents were searching a property which they believed was part of a large-scale drug conspiracy. They had already seized cocaine, cash and firearms on the premises when Tamari arrived in his vehicle. He gave evasive answers and was unable to produce identification or the vehicle’s registration.
Moreover, once a canine alerted to the vehicle this alone gave the agents probable cause for their search.
Thursday, June 29, 2006
Estupinan: MDLEA is Constitutional
In U.S. v. Estupinan, No. 05-16279 (June 28, 2006), the Court rejected the argument that Congress exceeded its authority under the Piracies and Felonies Clause of Article I of the Constitution when it adotped the 46 U.S.C. app. § 1903, the Maritime Drug Law Enforcement Act (MDLEA).
The Court stated that inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, it was not fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.
The Court stated that inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, it was not fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.
Tuesday, June 27, 2006
Norris: Legal Orchids Are Part of Sentence
In U.S. v. Norris, No. 04-15487 (June 23, 2006), the Court affirmed a sentence imposed on an offender convicted of importing orchid species from Peru into the United States in violation of CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora).
The defendant claimed that the market value assigned to the orchids was erroneous, because it was on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the the CITES permits accompanying each shipment. Rejecting this argument, the Court noted that the defendant tried to avoid customs’ detection of the undocumented orchids by mixing them in the same shipment with large quantities of documented orchids. "[T]he legally imported orchids were an integral part of the conspiracy." Consequently, the legal orchids were part of the "relevant conduct," and was appropriately considered in setting sentence.
The defendant claimed that the market value assigned to the orchids was erroneous, because it was on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the the CITES permits accompanying each shipment. Rejecting this argument, the Court noted that the defendant tried to avoid customs’ detection of the undocumented orchids by mixing them in the same shipment with large quantities of documented orchids. "[T]he legally imported orchids were an integral part of the conspiracy." Consequently, the legal orchids were part of the "relevant conduct," and was appropriately considered in setting sentence.
Mitsven: Supervised Release required for probation revocation
In U.S. v. Mitsven, No. 05-12647 (June 22, 2006), the Court held that, on revocation of probation, a district court was required to impose a three-year term of supervised release.
The Court noted that the probation revocation statute instructs sentencing courts to resentence a defendant under Subchapter A of the sentencing laws. Subchapter A in turn instructs to impose a term of imprisonment under Subchapter D. 18 U.S.C. § 3583(a), which is part of Subchapter D, instructs that supervised release must be imposed if the statute of conviction so requires. Mitsen’s original statute of conviction, 21 U.S.C. § 841(b)(1)(C), provides that a three year term of supervised release must be imposed if the defendant is sentenced to a term of incarceration. Since the revocation sentence included a four-month term of incarceration, supervised release was required.
The Court noted that the probation revocation statute instructs sentencing courts to resentence a defendant under Subchapter A of the sentencing laws. Subchapter A in turn instructs to impose a term of imprisonment under Subchapter D. 18 U.S.C. § 3583(a), which is part of Subchapter D, instructs that supervised release must be imposed if the statute of conviction so requires. Mitsen’s original statute of conviction, 21 U.S.C. § 841(b)(1)(C), provides that a three year term of supervised release must be imposed if the defendant is sentenced to a term of incarceration. Since the revocation sentence included a four-month term of incarceration, supervised release was required.
Wednesday, June 21, 2006
Wilk: Six Months Before Trial Is Reasonable Death Notice
In U.S. v. Wilk, No. 05-12694 (June 20, 2006), the Court, on a defendant’s interlocutory appeal which claimed that the government’s notice of intent to seek the death penalty was not given with a "reasonable time before trial," as required by 18 U.S.C. § 3593(a), held that the Death Notice filed six months before the trial was reasonable notice.
The Court noted that, from the start, the parties knew this was a likely death penalty case, and Wilk’s counsel began to prepare a death defense months before the Death Notice was filed. Further, the six month period between the Death Notice and the trial was itself objectively reasonable. The Court noted that the date of trial, for purposes of § 3593(a), is the actual date of the trial, not the originally scheduled date. The Court noted that continuances of trial did not change its analysis. Moreover, six months sufficed for the defense Wilk intended to present at trial.
The Court noted that, from the start, the parties knew this was a likely death penalty case, and Wilk’s counsel began to prepare a death defense months before the Death Notice was filed. Further, the six month period between the Death Notice and the trial was itself objectively reasonable. The Court noted that the date of trial, for purposes of § 3593(a), is the actual date of the trial, not the originally scheduled date. The Court noted that continuances of trial did not change its analysis. Moreover, six months sufficed for the defense Wilk intended to present at trial.
Tuesday, June 20, 2006
Schwab: Public Defender Conflict Not Prejudicial
In Schwab v. Crosby, No. 05-14253 (June 15, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
The Court rejected Schwab’s ineffective assistance of counsel claim based on the fact that his lawyer, a public defender, declined to cross-examine fellow lawyers from the public defender’s office who were called to the stand to testify about the chain of custody of an incriminating letter Schwab sent to the public defender’s office. The Court noted that no prejudice arose because the testimony was about uncontested aspects of the chain of custody.
The Court also rejected the argument that Schwab’s counsel was presumptively prejudiced by the conflict of interest of the public defender’s office. The Court noted the deferrence provisions of AEDPA, as well as the Teague limitation on retroactivity of Supreme Court cases in habeas. The Court found that no Supreme Court had clearly held that prejudice would be presumed in Schwab’s case, that is, outside the multiple representation context, and therefore rejected the presumed prejudice argument.
The Court also found harmless any error in the Florida trial court’s description of the evidence in mitigation, noting that the "horrendous facts" of the case (the defendant sexually assaulted the victim before strangling him to death) indicated that any error was outweighed by the aggravating factors.
The Court rejected Schwab’s ineffective assistance of counsel claim based on the fact that his lawyer, a public defender, declined to cross-examine fellow lawyers from the public defender’s office who were called to the stand to testify about the chain of custody of an incriminating letter Schwab sent to the public defender’s office. The Court noted that no prejudice arose because the testimony was about uncontested aspects of the chain of custody.
The Court also rejected the argument that Schwab’s counsel was presumptively prejudiced by the conflict of interest of the public defender’s office. The Court noted the deferrence provisions of AEDPA, as well as the Teague limitation on retroactivity of Supreme Court cases in habeas. The Court found that no Supreme Court had clearly held that prejudice would be presumed in Schwab’s case, that is, outside the multiple representation context, and therefore rejected the presumed prejudice argument.
The Court also found harmless any error in the Florida trial court’s description of the evidence in mitigation, noting that the "horrendous facts" of the case (the defendant sexually assaulted the victim before strangling him to death) indicated that any error was outweighed by the aggravating factors.
McGuiness: Obstruction of Justice in Escape
In U.S. v. McGuiness, No. 05-10797 (June 15, 2006), the Court affirmed the imposition a two-level obstruction of justice sentence enhancement on a defendant convicted of escape.
While a federal fugitive, McGuiness was approached by officers at a restaurant. McGuiness presented a false i.d. and claimed he was staying at nearby Holiday Inn. Police released him when his false name did not turn up on their database. Several hours later, when police realized no one by the assumed name was staying at the Holiday Inn, police, using a tracking dog and helicopter, after 24 hours, found the defendant hiding in woods near his hotel.
At sentencing, the district court imposed a two-level sentence enhancement for obstruction of justice, based on USSG § 3C1.1, cmt. n.4, which provides that this enhancement applies when a defendant provides a materially false statement to a law enforcement officer that significantly impeded the investigation. The Court affirmed this finding, noting that the use of a police dog and helicopter would not have been necessary had the defendant been truthful about his identity when first approached.
The Court rejected McGuiness’ argument that an obstruction enhancement should not apply to an escape offense, because conduct to elude capture is inherent in the continuing offense of escape. The Court noted that the Guidelines exclude some offenses from the obstruction enhacement’s application; however, escape was not one of the excluded offenses. Moreover, use of false identification makes it more difficult for law enforcement to locate an escapee.
The Court rejected the defendant’s argument that he should not have been ordered to pay a $4,000 fine, because of his inability to pay. The Court cited the defendant’s own statement that he had hidden cash away before commencing his prison term.
While a federal fugitive, McGuiness was approached by officers at a restaurant. McGuiness presented a false i.d. and claimed he was staying at nearby Holiday Inn. Police released him when his false name did not turn up on their database. Several hours later, when police realized no one by the assumed name was staying at the Holiday Inn, police, using a tracking dog and helicopter, after 24 hours, found the defendant hiding in woods near his hotel.
At sentencing, the district court imposed a two-level sentence enhancement for obstruction of justice, based on USSG § 3C1.1, cmt. n.4, which provides that this enhancement applies when a defendant provides a materially false statement to a law enforcement officer that significantly impeded the investigation. The Court affirmed this finding, noting that the use of a police dog and helicopter would not have been necessary had the defendant been truthful about his identity when first approached.
The Court rejected McGuiness’ argument that an obstruction enhancement should not apply to an escape offense, because conduct to elude capture is inherent in the continuing offense of escape. The Court noted that the Guidelines exclude some offenses from the obstruction enhacement’s application; however, escape was not one of the excluded offenses. Moreover, use of false identification makes it more difficult for law enforcement to locate an escapee.
The Court rejected the defendant’s argument that he should not have been ordered to pay a $4,000 fine, because of his inability to pay. The Court cited the defendant’s own statement that he had hidden cash away before commencing his prison term.
Thursday, June 15, 2006
Bascomb: Bound by Appeal Waiver
In U.S. v. Bascomb, No. 05-13932 (June 14, 2006), the Court dismissed a defendant’s appeal because he agreed in his plea agreement to an appeal waiver.
At sentencing, the district court expressed reservations about the harshness of imposing a mandatory 120-month minimum sentence on a defendant convicted of cultivating marihuana at his home. The defendant sought to raise this point on appeal. The Court held that, notwithstanding the district court’s comments, the defendant remained bound by the written terms of his plea agreement.
At sentencing, the district court expressed reservations about the harshness of imposing a mandatory 120-month minimum sentence on a defendant convicted of cultivating marihuana at his home. The defendant sought to raise this point on appeal. The Court held that, notwithstanding the district court’s comments, the defendant remained bound by the written terms of his plea agreement.
Wednesday, June 14, 2006
Johnson: Sentence within statutory limits not disproportionate
In U.S. v. Johnson, No. 05-14889 (June 13, 2006), the Court affirmed a 140-month sentence for a defendant convicted of several counts of producing and distributing child pornography.
One victim, whom the defendant photographed, testified that sexual activity with the defendant started at age 8 and continued for six years.
The Court rejected Johnson’s argument that his sentence was disproportionate and therefore unconstitutional under the Eighth Amendment. Although Johnson had not raised this argument in the court below, the Court applied de novo, instead of plain error review, because the district court did not give Johnson an opportunity to object to his sentence.
The Court asserted that a sentence within the statutory limits generally does not violate the Eighth Amendment. Here, each count of conviction carried a statutory maximum punishment of 50 or 40 years. Hence the 140-month sentence was within the statutory limits. Johnson therefore failed to make a threshold showing of disproportionality.
One victim, whom the defendant photographed, testified that sexual activity with the defendant started at age 8 and continued for six years.
The Court rejected Johnson’s argument that his sentence was disproportionate and therefore unconstitutional under the Eighth Amendment. Although Johnson had not raised this argument in the court below, the Court applied de novo, instead of plain error review, because the district court did not give Johnson an opportunity to object to his sentence.
The Court asserted that a sentence within the statutory limits generally does not violate the Eighth Amendment. Here, each count of conviction carried a statutory maximum punishment of 50 or 40 years. Hence the 140-month sentence was within the statutory limits. Johnson therefore failed to make a threshold showing of disproportionality.
Dowd: 305-sentence affirmed for 65 year old felon
In U.S. v. Dowd, No. 05-15067 (June 13, 2006), the Court affirmed a 305-month sentence on a defendant convicted of robbing a postmater and placing his life in jeopardy, in violation of 18 U.S.C. § 2114(a), use of a firearm in the commission of a crime of violence, in violation of § 924(c), unlawful conversion of money orders, in violation of § 500, and felony possession of a firearm, in violation of § 922(g)(1).
The Court rejected Dowd’s argument that the felon in possession count should have severed from his trial for the robbery of the post office, because the possession predated the robbery by several days. The Court noted that no compelling prejudice arose from the joinder, because the jury would have heard all of the firearms-related evidence anyway, because it contradicted Dowd’s primary defense that he used only a toy gun in the robbery. Moreover, the proof of Dowd’s guilt in the robbery was extensive and overwhelming.
The Court also rejected Dowd’s challenge to the admission of his confession. Although Dowd did not sign the Miranda waiver, he signed the portion of the form expressing that he understood his Miranda rights and he thereafter expressed his willingness to speak to investigators. Dowd did not even equivocally suggest that he wished to cease questioning.
The Court rejected Dowd’s Double Jeopardy challenge to being punished twice for use of a firearm, once for the robbery at gunpoint of the post office, and again for use of a firearm. The Court noted that Congress specifically intended consecutive punishment in this instance. Even though the offenses involve the same elements, this did not change the Double Jeopardy analysis because there was clear legislative intent to impose cumulative punishments.
The Court rejected Dowd’challenge to his sentence under the Armed Career Criminal Act. The district court relied on the transcripts of plea colloquys in Dowd’ prior State convictions as the basis for concluding that his prior burglaries qualified as predicate violent felonies under ACCA. This was in keeping with Shepard v. U.S., 544 U.S. 12 (2005).
The Court also found no error in the substitution of judges after trial, for sentencing, pointing out that the sentencing judge was sufficiently familiar with Dowd’s trial to sentence him.
Finally, the Court rejected Dowd’s reasonableness challenge to his 305-month sentence. "While it is true that Dowd is over 65 years old, it is also undeniable that Dowd committed a violent felony at that age."
The Court rejected Dowd’s argument that the felon in possession count should have severed from his trial for the robbery of the post office, because the possession predated the robbery by several days. The Court noted that no compelling prejudice arose from the joinder, because the jury would have heard all of the firearms-related evidence anyway, because it contradicted Dowd’s primary defense that he used only a toy gun in the robbery. Moreover, the proof of Dowd’s guilt in the robbery was extensive and overwhelming.
The Court also rejected Dowd’s challenge to the admission of his confession. Although Dowd did not sign the Miranda waiver, he signed the portion of the form expressing that he understood his Miranda rights and he thereafter expressed his willingness to speak to investigators. Dowd did not even equivocally suggest that he wished to cease questioning.
The Court rejected Dowd’s Double Jeopardy challenge to being punished twice for use of a firearm, once for the robbery at gunpoint of the post office, and again for use of a firearm. The Court noted that Congress specifically intended consecutive punishment in this instance. Even though the offenses involve the same elements, this did not change the Double Jeopardy analysis because there was clear legislative intent to impose cumulative punishments.
The Court rejected Dowd’challenge to his sentence under the Armed Career Criminal Act. The district court relied on the transcripts of plea colloquys in Dowd’ prior State convictions as the basis for concluding that his prior burglaries qualified as predicate violent felonies under ACCA. This was in keeping with Shepard v. U.S., 544 U.S. 12 (2005).
The Court also found no error in the substitution of judges after trial, for sentencing, pointing out that the sentencing judge was sufficiently familiar with Dowd’s trial to sentence him.
Finally, the Court rejected Dowd’s reasonableness challenge to his 305-month sentence. "While it is true that Dowd is over 65 years old, it is also undeniable that Dowd committed a violent felony at that age."
Monday, June 12, 2006
Atwater: Counsel did not preseve Batson Claim for Habeas
In Atwater v. Crosby, No 03-16259 (June 12, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1989 murder.
The Court recognized that the Florida Supreme Court incorrectly applied Batson v. Kentucky when it concluded that there was no error in the striking of the sole black juror on the venire. However, given the great deference owed to the Florida courts, and defense counsel’s failure in the Florida state trial court to present evidence of how similarly situated white jurors had been treated differently by the prosecution, the Court concluded that the error was not unreasonable, and therefore unworthy of habeas relief.
The Court also found no grounds for habeas relief in the Florida Supreme Court’s conclusion that Atwater’s counsel was not ineffective in seeking to spare Atwater’s life on the ground that he was guilty of second-degree murder only. The Court noted that this was a plausible defense strategy in light of the overwhelming evidence of guilt.
The Court found that Atwater had defaulted his claim that counsel was ineffective for failing to allow him to testify, and that, in any event, Atwater was not prejudiced by his failure to testify in light of the overwhelming proof of guilt.
The Court also found no error in the denial of an evidentiary hearing on Atwater’s claim that counsel was ineffective in failing to put on mitigation evidence at the penalty phase. The Court noted that this was virtually the same evidence, through other witnesses, as the evidence which was presented.
The Court recognized that the Florida Supreme Court incorrectly applied Batson v. Kentucky when it concluded that there was no error in the striking of the sole black juror on the venire. However, given the great deference owed to the Florida courts, and defense counsel’s failure in the Florida state trial court to present evidence of how similarly situated white jurors had been treated differently by the prosecution, the Court concluded that the error was not unreasonable, and therefore unworthy of habeas relief.
The Court also found no grounds for habeas relief in the Florida Supreme Court’s conclusion that Atwater’s counsel was not ineffective in seeking to spare Atwater’s life on the ground that he was guilty of second-degree murder only. The Court noted that this was a plausible defense strategy in light of the overwhelming evidence of guilt.
The Court found that Atwater had defaulted his claim that counsel was ineffective for failing to allow him to testify, and that, in any event, Atwater was not prejudiced by his failure to testify in light of the overwhelming proof of guilt.
The Court also found no error in the denial of an evidentiary hearing on Atwater’s claim that counsel was ineffective in failing to put on mitigation evidence at the penalty phase. The Court noted that this was virtually the same evidence, through other witnesses, as the evidence which was presented.
Friday, June 09, 2006
Valnor: Guidelines Inadequate to Punish Appropriately
In U.S. v. Valnor, No. 05-15701 (June 6, 2006), the Court rejected a reasonableness challenge to a 28-month sentence imposed on a defendant convicted of violating 18 U.S.C. § 1028(f) by conspiring to produce identification documents without lawful authority.
Valnor’s offense consisted of issuing fraudulent driver’s licences to illegal immigrants in the South Florida area. The 28-month sentence reflected a downward departure for cooperating with the government’s investigation, but also an upward departure because the crime involved was more serious than the Guideline range indicated, because identification documents are important to the country’s security.
Reviewing the sentence, post-Booker, for reasonableness, the Court found that the district court properly addressed the seriousness of the offense, consistent with 18 U.S.C. § 3553(a)(2), and the need to protect society from middlemen like Valnor. Further, the sentence was well below the statutory maximum. "The district court properly fulfilled its role in considering the Guidelines, but found the Guidelines range to be inadequate to accomplish the statutory goals of providing adequate deterrence and protecting the public from further crimes."
Valnor’s offense consisted of issuing fraudulent driver’s licences to illegal immigrants in the South Florida area. The 28-month sentence reflected a downward departure for cooperating with the government’s investigation, but also an upward departure because the crime involved was more serious than the Guideline range indicated, because identification documents are important to the country’s security.
Reviewing the sentence, post-Booker, for reasonableness, the Court found that the district court properly addressed the seriousness of the offense, consistent with 18 U.S.C. § 3553(a)(2), and the need to protect society from middlemen like Valnor. Further, the sentence was well below the statutory maximum. "The district court properly fulfilled its role in considering the Guidelines, but found the Guidelines range to be inadequate to accomplish the statutory goals of providing adequate deterrence and protecting the public from further crimes."
Ortiz-Delgado: Lewd Act On Minor Qualifies as Crime of Violence
In U.S. v. Ortiz-Delgado, No. 05-15466 (June 7, 2006), the Court affirmed treating a defendant’s prior California convictions for attempted lewd acts upon a child and for lewd acts upon a child as "crimes of violence" for purposes of imposing a 16-level sentence enhancement on a defendant convicted of illegal re-entry.
Noting that such crimes involve psychological injury, and the inherent risk of injury to a child of such crimes, the Court sided with all other circuits to have considered the issue.
The Court also rejected Ortiz-Delgado’s challenge to the reasonableness of his sentence. Ortiz-Delgado argued that he re-entered the United States to support a child that was living there. But the Court affirmed the district court’s reasoning that, as a repeat child sex offender, Ortiz-Delgado’s punishment should be sufficient to protect society.
Noting that such crimes involve psychological injury, and the inherent risk of injury to a child of such crimes, the Court sided with all other circuits to have considered the issue.
The Court also rejected Ortiz-Delgado’s challenge to the reasonableness of his sentence. Ortiz-Delgado argued that he re-entered the United States to support a child that was living there. But the Court affirmed the district court’s reasoning that, as a repeat child sex offender, Ortiz-Delgado’s punishment should be sufficient to protect society.
Thursday, June 01, 2006
Gamble: No Faretta violation precludes death penalty
In Gamble v. Sec’y Dep’t Corrections, No. 05-14334 (May 31, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
Applying the deferential AEDPA standard of review, the Court found no error in the Florida Supreme Court’s determination that there was no Farretta violation in the trial court’s failure to conduct an inquiry into the defendant’s wish to represent himself, because the defendant, in fact, never asked to represent himself. Instead, he asked for substitute counsel. The Court agreed with the Florida Supreme Court that that since there was no merit to the Farretta issue, appellate counsel had not been ineffective in failing to raise it on direct appeal. Finally, the Court found no ineffectiveness in counsel’s failure, at the penalty phase, to argue that the murder was not committed for pecuniary gain (an aggravator). The Court pointed out that the jury’s contrary verdict on this point at the guilt phase made such an argument "preposterous."
Applying the deferential AEDPA standard of review, the Court found no error in the Florida Supreme Court’s determination that there was no Farretta violation in the trial court’s failure to conduct an inquiry into the defendant’s wish to represent himself, because the defendant, in fact, never asked to represent himself. Instead, he asked for substitute counsel. The Court agreed with the Florida Supreme Court that that since there was no merit to the Farretta issue, appellate counsel had not been ineffective in failing to raise it on direct appeal. Finally, the Court found no ineffectiveness in counsel’s failure, at the penalty phase, to argue that the murder was not committed for pecuniary gain (an aggravator). The Court pointed out that the jury’s contrary verdict on this point at the guilt phase made such an argument "preposterous."
McGill: DUI qualifies as "crime of violence"
In U.S. v. McGill, No. 05-10285 (June 1, 2005), the Court (Dubina, Marcus, Cox) held that prior Alabama DUI convictions qualified as "crimes of violence" for the purpose of assigning a higher base offense level under USSG § 2K2.1(a)(2) to a sentence for being a felon in possession of a firearm.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
Aguilar-Ortiz: Solicitation of $30 crack not "drug trafficking"
In U.S. v. Aguilar-Ortiz, No. 05-12591 (May 31, 2006), the Court (Tjoflat, Barkett, Goodwin b.d.) vacated a sentence, holding that the district court erred in its Guideline analysis when it treated the defendant’s prior Florida state conviction for solicitation to deliver cocaine as a "drug trafficking offense" for purposes of imposing a 12-level enhancement for being found guilty in the United States after deportation.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
Wednesday, May 24, 2006
Arias-Izquierdo: Cuban Aircraft Hijacking Convictions Affirmed
In U.S. v. Arias-Izquierdo, No. 04-12034 (May 22, 2006), the Court affirmed aircraft piracy convictions for six Cuban defendants who diverted an aircraft bound for Havana to Key West, Florida, rejecting each of the defendants’ separate challenge.
As to one defendant, the Court rejected the argument that there was insufficient evidence to support his conviction for aiding and abetting the hijacking, pointing to the testimony that this defendant walked through the aircraft holding a knife or an axe, and exclaimed to passengers during the flight that they should remain seated and quiet.
As to a second defendant, the Court rejected the argument that the district court abused its discretion in refusing to allow cross-examination of government witnesses about their membership in the Communist Party in Cuba. The district court disallowed these questions because it concluded that their purpose was to prejudice anti-Communist members of the jury. The Court noted that the defendant was allowed to question witnesses, inter alia, about whether they received benefits from the Cuban government for their testimony. The Court also noted that questions about Communist Party affiliation would not have been probative of their truthfulness. The Court found no abuse of discretion.
As to a third defendant, the Court rejected the argument that he was not guilty of aircraft piracy because he only acted to secure the aircraft steward, not the pilot. The government proved that he used intimidation and threats of violence to maintain control over the passenger cabin of the aircraft, in a manner meant to influence the flight plan and the pilot. This sufficed to sustain the conviction.
The Court agreed with the defendant that a summary of flight information, prepared by an employee of Cubana Airlines for the prosecution, was not admissible as a "business record" under FRE 803(6). The document was not prepared at or near the time of the event it recorded. The Court also noted that the government did not satisfy FRE 1006, because the underlying records supporting the summary were not provided to the defense. Thus, the district court erred in allowing the document to be admitted. However, in light of the strength of the government’s other evidence, the error was harmless.
The Court rejected the argument that the district court should have instructed the jury that two of the counts charged in the indictment were "lesser included offenses." The Court instruced the jury to consider each count separately. The jury’s verdict showed that it followed this instruction, as it did not convict all defendants on all counts. Thus, the requested instruction was properly denied.
The Court rejected the argument that 20-year sentence was "cruel and unusual punishment." "The hijacking of an aircraft is an extraordinarily dangerous undertaking," the Court noted. Further, the fact that the defendant was fleeing a repressive Cuban government was not a consideration.
As to a fifth defendant, the Court rejected the argument that the jury should have been instructed that "knowingly" meant "not because of . . . [an] innocent reason." The Court found that this language would have misled the jury into thinking that a desire to leave Cuba is an innocent reason for hijacking an aircraft.
The Court found no error in denying post-trial discovery of a Cuban government witness who defected to the United States shortly after the trial. The Court noted that the defense did not show that the witness would have changed his story.
Finally, the Court found Booker error in the district court’s imposition of a two-level obstruction of justice enhancement under a mandatory Guidelines regime. The Court pointed out that the district court at sentencing said it was "reluctant" to impose the enhancement. This indicated a probability of a different result on resentencing, and justified a remand.
As to one defendant, the Court rejected the argument that there was insufficient evidence to support his conviction for aiding and abetting the hijacking, pointing to the testimony that this defendant walked through the aircraft holding a knife or an axe, and exclaimed to passengers during the flight that they should remain seated and quiet.
As to a second defendant, the Court rejected the argument that the district court abused its discretion in refusing to allow cross-examination of government witnesses about their membership in the Communist Party in Cuba. The district court disallowed these questions because it concluded that their purpose was to prejudice anti-Communist members of the jury. The Court noted that the defendant was allowed to question witnesses, inter alia, about whether they received benefits from the Cuban government for their testimony. The Court also noted that questions about Communist Party affiliation would not have been probative of their truthfulness. The Court found no abuse of discretion.
As to a third defendant, the Court rejected the argument that he was not guilty of aircraft piracy because he only acted to secure the aircraft steward, not the pilot. The government proved that he used intimidation and threats of violence to maintain control over the passenger cabin of the aircraft, in a manner meant to influence the flight plan and the pilot. This sufficed to sustain the conviction.
The Court agreed with the defendant that a summary of flight information, prepared by an employee of Cubana Airlines for the prosecution, was not admissible as a "business record" under FRE 803(6). The document was not prepared at or near the time of the event it recorded. The Court also noted that the government did not satisfy FRE 1006, because the underlying records supporting the summary were not provided to the defense. Thus, the district court erred in allowing the document to be admitted. However, in light of the strength of the government’s other evidence, the error was harmless.
The Court rejected the argument that the district court should have instructed the jury that two of the counts charged in the indictment were "lesser included offenses." The Court instruced the jury to consider each count separately. The jury’s verdict showed that it followed this instruction, as it did not convict all defendants on all counts. Thus, the requested instruction was properly denied.
The Court rejected the argument that 20-year sentence was "cruel and unusual punishment." "The hijacking of an aircraft is an extraordinarily dangerous undertaking," the Court noted. Further, the fact that the defendant was fleeing a repressive Cuban government was not a consideration.
As to a fifth defendant, the Court rejected the argument that the jury should have been instructed that "knowingly" meant "not because of . . . [an] innocent reason." The Court found that this language would have misled the jury into thinking that a desire to leave Cuba is an innocent reason for hijacking an aircraft.
The Court found no error in denying post-trial discovery of a Cuban government witness who defected to the United States shortly after the trial. The Court noted that the defense did not show that the witness would have changed his story.
Finally, the Court found Booker error in the district court’s imposition of a two-level obstruction of justice enhancement under a mandatory Guidelines regime. The Court pointed out that the district court at sentencing said it was "reluctant" to impose the enhancement. This indicated a probability of a different result on resentencing, and justified a remand.
Thursday, May 18, 2006
Love: Invited Supervised Release Error
In U.S. v. Love, No. 05-11141 (May 18, 2006), the Court held that at sentencing the defendant "invited" any error in his sentence, and was therefore barred from challenging on appeal the legality of a five-year term imposed for his conviction of contempt, in violation of 18 U.S.C. § 401(3).
The defendant was held in contempt for violating a temporary restraining order. At sentencing, the defendant did not object to the PSI determination that the court could impose a term of supervised release of up to five years. Defense counsel repeatedly requested that the court impose a sentence of time served, followed by a term of supervised release. The Court sentenced Love to 45 days’ incarceration followed by five years of supervised release.
On appeal, the defendant argued that because his contempt conviction did not qualify as a "felony or misdemeanor" under the supervised release statute, 18 U.S.C. § 3583(a), or, alternatively, because his contempt conviction counted as a misdemeanor, and therefore was punishable by only up to one year of supervised release, the five year term of supervised release was invalid.
The Court declined to reach the merits of Love’s arguments, finding that any error was "invited" at sentencing, when defense counsel repeatedly agreed to a term of supervised release.
The defendant was held in contempt for violating a temporary restraining order. At sentencing, the defendant did not object to the PSI determination that the court could impose a term of supervised release of up to five years. Defense counsel repeatedly requested that the court impose a sentence of time served, followed by a term of supervised release. The Court sentenced Love to 45 days’ incarceration followed by five years of supervised release.
On appeal, the defendant argued that because his contempt conviction did not qualify as a "felony or misdemeanor" under the supervised release statute, 18 U.S.C. § 3583(a), or, alternatively, because his contempt conviction counted as a misdemeanor, and therefore was punishable by only up to one year of supervised release, the five year term of supervised release was invalid.
The Court declined to reach the merits of Love’s arguments, finding that any error was "invited" at sentencing, when defense counsel repeatedly agreed to a term of supervised release.
Tuesday, May 16, 2006
Shannon: Imprisonment during 15-year window
In U.S. v. Shannon, No. 05-13491 (May 16, 2006), the Court rejected the defendant’s argument that his two prior convictions should not count as prior felony convictions for purposes of the career offender classification of USSG § 4B1.1. Although Shannon committed the prior offenses outside the 15-year window preceding the offense of conviction,m the convictions counted because the sentences imposed for those convictions resulted in Shannon being incarcerated during some part of the 15-year period.
The Court noted that the Guidelines provide that a prior conviction is counted when a prior sentence resulted in the defendant being incarcerated during any part of the 15-year period. Shannon had been convicted twice prior to the 15-year period, but, after revocation of probation on these convictions was resentenced and as a result served a term of incarceration for the two prior convictions during the 15-year window. The Court rejected Shannon’s challenge to the "technical" application of the Guidelines.
The Court noted that the Guidelines provide that a prior conviction is counted when a prior sentence resulted in the defendant being incarcerated during any part of the 15-year period. Shannon had been convicted twice prior to the 15-year period, but, after revocation of probation on these convictions was resentenced and as a result served a term of incarceration for the two prior convictions during the 15-year window. The Court rejected Shannon’s challenge to the "technical" application of the Guidelines.
Monday, May 15, 2006
Segura-Baltazar: No Privacy in Garbage
In U.S. v. Segura-Baltazar, No. 05-12705 (May 12, 2006), the Court upheld the legality of the search of the defendant’s trash outside his home, upheld the legality of a "no-knock" search, and affirmed the imposition of a mandatory sentence based in part on the weight of the carrier in which methaphantamine
The police, with the aid of the local trash collector over a period of several months, obtained the garbage bags which were left for collection outside the home of a suspected drug trafficker. Some of the bags were left on the curb, some were left closer to the house, at a place where they were habitually picked up for disposal by the trash collector. In the garbage, the police found two different magazines for semiautomatic handguns, an empty box of 12-gauge shotgun shells, one live round of .45 caliber ammunition, and empty boxes that likely once contained surveillance cameras and monitors that have the ability to see in low-light conditions.
Citing California v. Greenwood, 486 U.S. 35 (1989), the Court held that the defendant had no reasonable expectation of privacy in trash bags left outside his home. While the bags left by the house, no on the curb, presented a "closer" question, the Court noted that bags left in this spot were habitually picked up by the trash collector, diminishing the privacy expectation.
The Court also found no Fourth Amendment in the "no knock" entry into the home. Though noting the law in another circuit that the presence of guns in a home does not standing alone justify a "no knock" entry, here the presence of guns and surveillance cameras easily provided the reasonable suspicion necessary to support a "no knock" entry.
Finally, as to sentencing, the Court rejected the argument that the weight of the "cutting agent" for methamphetamine should not have been counted in determining the weight of drugs that was used as the basis for imposing a ten-year mandatory sentence. Citing Chapman v. U.S., 500 U.S. 453, the Court noted that Congress based sentences on the "mixture" of a substance containing a detectable amount of drugs. This indicated that the cutting agent should be included. The Court distinguished U.S. v. Jackson, 115 F.3d 843 (11th Cir. 1997), because the sugar that was not counted as cocaine in that case was more like a container than a carrier.
The police, with the aid of the local trash collector over a period of several months, obtained the garbage bags which were left for collection outside the home of a suspected drug trafficker. Some of the bags were left on the curb, some were left closer to the house, at a place where they were habitually picked up for disposal by the trash collector. In the garbage, the police found two different magazines for semiautomatic handguns, an empty box of 12-gauge shotgun shells, one live round of .45 caliber ammunition, and empty boxes that likely once contained surveillance cameras and monitors that have the ability to see in low-light conditions.
Citing California v. Greenwood, 486 U.S. 35 (1989), the Court held that the defendant had no reasonable expectation of privacy in trash bags left outside his home. While the bags left by the house, no on the curb, presented a "closer" question, the Court noted that bags left in this spot were habitually picked up by the trash collector, diminishing the privacy expectation.
The Court also found no Fourth Amendment in the "no knock" entry into the home. Though noting the law in another circuit that the presence of guns in a home does not standing alone justify a "no knock" entry, here the presence of guns and surveillance cameras easily provided the reasonable suspicion necessary to support a "no knock" entry.
Finally, as to sentencing, the Court rejected the argument that the weight of the "cutting agent" for methamphetamine should not have been counted in determining the weight of drugs that was used as the basis for imposing a ten-year mandatory sentence. Citing Chapman v. U.S., 500 U.S. 453, the Court noted that Congress based sentences on the "mixture" of a substance containing a detectable amount of drugs. This indicated that the cutting agent should be included. The Court distinguished U.S. v. Jackson, 115 F.3d 843 (11th Cir. 1997), because the sugar that was not counted as cocaine in that case was more like a container than a carrier.
Thursday, May 11, 2006
Cenna: Supervised release doesn't exceed statutory maximum
In U.S. v. Cenna, No. 05-14011 (May 11, 2006), the Court rejected the argument that the imposition of a one-year term of supervised release in addition to the maximum termof one-year’s incarceration under 21 U.S.C. § 844(a), for misdemeanor possession of marihuana and heroin, was illegal, because it violated the statutory maximum.
The Court noted that its caselaw, prior to Johnson v. U.S., 529 U.S. 694 (2000), held that courts can order supervised release in addition to the maximum term of imprisonment available by statute. The Court rejected Cenna’s argument that Johnson changed this result, joining other circuits to have so held.
The Court noted that its caselaw, prior to Johnson v. U.S., 529 U.S. 694 (2000), held that courts can order supervised release in addition to the maximum term of imprisonment available by statute. The Court rejected Cenna’s argument that Johnson changed this result, joining other circuits to have so held.
Izquierdo: Incompetency to Withdraw Guilty Plea
In U.S. v. Izquierdo, No. 04-14641 (May 10, 2006), the Court affirmed the denial of a motion to withdraw a guilty plea based on incompetency.
After pleading guilty to cocaine-trafficking charges, the defendant filed a motion for a psychological evaluation, and attached an expert report which diagnosed him as mentally incompetent. A competency test was ordered, and it also concluded that Izquierdo was incompetent. However, after this report was filed an inmate at Izquierdo’s prison reported that Izquierdo told him that he planned to act crazy in order to be found incompetent. A second competency report was ordered, and it concluded that Izquierdo was competent, and that he had misled the psychologist earlier.
The Court noted that, although the government ordinarily bears the burden of proving a person’s competency to stand trial on criminal charges, here Izquierdo was moving to withdraw his guilty plea. In this circumstance, Izquierdo bore the burden of showing incompetency. The Court found that the district court did not abuse its discretion in giving greater weight to the second competency report, and in therefore denying Izquierdo’s motion to withdraw his guilty plea based on his incompetence.
After pleading guilty to cocaine-trafficking charges, the defendant filed a motion for a psychological evaluation, and attached an expert report which diagnosed him as mentally incompetent. A competency test was ordered, and it also concluded that Izquierdo was incompetent. However, after this report was filed an inmate at Izquierdo’s prison reported that Izquierdo told him that he planned to act crazy in order to be found incompetent. A second competency report was ordered, and it concluded that Izquierdo was competent, and that he had misled the psychologist earlier.
The Court noted that, although the government ordinarily bears the burden of proving a person’s competency to stand trial on criminal charges, here Izquierdo was moving to withdraw his guilty plea. In this circumstance, Izquierdo bore the burden of showing incompetency. The Court found that the district court did not abuse its discretion in giving greater weight to the second competency report, and in therefore denying Izquierdo’s motion to withdraw his guilty plea based on his incompetence.
Tuesday, May 09, 2006
Scott: Not yet "found" in the U.S.
In U.S. v. Scott, No. 05-13276 (May 8, 2006), the Court (Anderson, Fay & Siler b.d.) held that the sentencing court erroneously added one criminal history point under USSG § 4A1.1(e) to Scott’s criminal history. This Guideline provides for a one-point offense level enhancement if the defendant committed the offense (in this case, illegal reentry) less than than two years after release from a sentence. The district court found that Scott illegally rentered the U.S. while he was serving a 180-day State sentence for probation violation.
Reversing, the Court found that Scott was "found" in the U.S., i.e., violated the illegal reentry statute, at the time he was initially interviewed by federal authorities. This interview occurred before his incarceration on State charges. At that timehe was not yet under a sentence of imprisonment. Therefore, the § 4A1.1(e) enhancement was inapplicable.
Reversing, the Court found that Scott was "found" in the U.S., i.e., violated the illegal reentry statute, at the time he was initially interviewed by federal authorities. This interview occurred before his incarceration on State charges. At that timehe was not yet under a sentence of imprisonment. Therefore, the § 4A1.1(e) enhancement was inapplicable.
Friday, May 05, 2006
Alvarez-Coria: Knowledge of Drug Type is "immaterial"
In U.S. v. Alvarez-Corria, No. 05-15683 (May 4, 2006), the Court affirmed an 86-month sentence imposed on a cocaine and methamphetamine-trafficking defendant.
The Court rejected the argument that the defendant was entitled to a minor role sentence reduction. The Court pointed out that the defendant was only held accountable for the drugs that he admitted conspiring to transport. His actual and relevant conduct were therefore the same and he did not play a minor role in that conduct.
Further, the defendant was as culpable as some of his accomplices. He gave his truck as security for the transaction. The higher-ups in the conspiracy used him to coordinate the movements of others. And he was, most importantly, entrusted to drive away with the drugs at the end of the transaction.
The Court rejected the argument that the defendant thought cocaine, not methamphetamine, was being transported, and therefore should only be punished for cocaine. The Court noted that the defendant’s knowledge of the type of drug involved was "immaterial."
The Court rejected the argument that the defendant was entitled to a minor role sentence reduction. The Court pointed out that the defendant was only held accountable for the drugs that he admitted conspiring to transport. His actual and relevant conduct were therefore the same and he did not play a minor role in that conduct.
Further, the defendant was as culpable as some of his accomplices. He gave his truck as security for the transaction. The higher-ups in the conspiracy used him to coordinate the movements of others. And he was, most importantly, entrusted to drive away with the drugs at the end of the transaction.
The Court rejected the argument that the defendant thought cocaine, not methamphetamine, was being transported, and therefore should only be punished for cocaine. The Court noted that the defendant’s knowledge of the type of drug involved was "immaterial."
Owens: Prior Firearm Possession Qualifies as Crime of Violence
In U.S. v. Owens, No. 05-10753 (May 4, 2006), the Court affirmed the imposition of a sentence enhancement based on a finding that a prior conviction for possession of an unregistered firearm constituted a "crime of violence."
The defendant was convicted in 1995 of possession of an unregistered rifle with a seven-inch barrel, in violation of the National Firearms Act, 26 U.S.C. § 5681(d). In 2004, the defendant was convicted of being a felon in possession of a firearm. This offense calls for a Guideline enhancement if the prior felony was a "crime of violence."
Rejecting the argument that the prior felony was not a crime of violence, the Court aligned itself with other circuits which have held that a § 5681 conviction qualifies as a crime of violence. The possession of firearms is outlawed by § 5681 because of the "virtual inevitability that such possession will result in violence." The Court also rejected the defendant’s reliance on U.S. v. Spell, 44 F.3d 936 (11th Cir. 1995), which held that a court could look at the circumstances of the predicate offense to determine if it qualifies as a crime of violence. Spell only applies if there is an "ambiguity" about the nature of the prior conviction. No ambiguity arose here.
The defendant was convicted in 1995 of possession of an unregistered rifle with a seven-inch barrel, in violation of the National Firearms Act, 26 U.S.C. § 5681(d). In 2004, the defendant was convicted of being a felon in possession of a firearm. This offense calls for a Guideline enhancement if the prior felony was a "crime of violence."
Rejecting the argument that the prior felony was not a crime of violence, the Court aligned itself with other circuits which have held that a § 5681 conviction qualifies as a crime of violence. The possession of firearms is outlawed by § 5681 because of the "virtual inevitability that such possession will result in violence." The Court also rejected the defendant’s reliance on U.S. v. Spell, 44 F.3d 936 (11th Cir. 1995), which held that a court could look at the circumstances of the predicate offense to determine if it qualifies as a crime of violence. Spell only applies if there is an "ambiguity" about the nature of the prior conviction. No ambiguity arose here.
Garcia: DEA expert testimony admissible
In U.S. v. Garcia, No. 04-14763 (May 3, 2006), the Court affirmed drug trafficking convictions and rejected the defendant’s challenges to the admission of expert testimony evidence concerning the secret codes of drug traffickers.
The recorded conversations introduced in evidence at trial included references, inter alia, to "shirts." The government introduced expert testimony of a DEA agent, who had spoken to a testifying government informant, and who testified that the defendants were speaking, as Mexican drug dealers do, in code, and that the word "shirts" referred to shipments of "cocaine."
The Court held that it was not an abuse of discretion to admit the expert testimony concernng the practices of drug organizations. The DEA agent in question had been involved in at least 50 prior drug investigations. Further, the testimony was highly probative as it explained how the evidence showed that the defendants were advancing the goals of the drug trafficking organization.
The Court also held that no Confrontation Clause violation occurred when the DEA agent testified that he relied in part on what he was told by the government informant about the meaning of "shirts." This informant also testified at trial, and therefore the defendants had an opportunity to confront him and cross-examine him.
The Court also found that the expert testified to matters within his expertise, and that his reliance on hearsay evidence was therefore legitimate.
The Court rejected one defendant’s claim that the district court should have disqualified his attorney when a conflict became apparent a trial between this lawyer’s representation of both himself and a co-defendant. The Court pointed out that the Magistrate Judge held a complete hearing on this subject at which the defendant knowingly waived his right to obtain his own attorney.
Finally, the Court rejected all challenges to the sufficiency of the evidence, pointing out, for example, that cell phone calls were placed on a phone to which one of the defendants subscribed, to a co-defendant cousin to whom the defendant referred as "cuz."
The recorded conversations introduced in evidence at trial included references, inter alia, to "shirts." The government introduced expert testimony of a DEA agent, who had spoken to a testifying government informant, and who testified that the defendants were speaking, as Mexican drug dealers do, in code, and that the word "shirts" referred to shipments of "cocaine."
The Court held that it was not an abuse of discretion to admit the expert testimony concernng the practices of drug organizations. The DEA agent in question had been involved in at least 50 prior drug investigations. Further, the testimony was highly probative as it explained how the evidence showed that the defendants were advancing the goals of the drug trafficking organization.
The Court also held that no Confrontation Clause violation occurred when the DEA agent testified that he relied in part on what he was told by the government informant about the meaning of "shirts." This informant also testified at trial, and therefore the defendants had an opportunity to confront him and cross-examine him.
The Court also found that the expert testified to matters within his expertise, and that his reliance on hearsay evidence was therefore legitimate.
The Court rejected one defendant’s claim that the district court should have disqualified his attorney when a conflict became apparent a trial between this lawyer’s representation of both himself and a co-defendant. The Court pointed out that the Magistrate Judge held a complete hearing on this subject at which the defendant knowingly waived his right to obtain his own attorney.
Finally, the Court rejected all challenges to the sufficiency of the evidence, pointing out, for example, that cell phone calls were placed on a phone to which one of the defendants subscribed, to a co-defendant cousin to whom the defendant referred as "cuz."
McVay: Probation only reversed for HealthSouth Officer
In U.S. v. McVay, No. 04-13455 (May 5. 2006), the Court, on a government appeal, reversed the sentence of probation only imposed on a former financial officer of HealthSouth, who pled guilty to fraud charges that resulted in losses of $400 million.
At sentencing, the government moved for a § 5K1.1 reduction of sentence, based on McVay’s cooperation. The Guideline sentence was 87 months. The district court departed well below the government’s recommended level, imposing a 60-month sentence of probation, and no jail term.
The Court pointed out that the sentencing court’s only explanation for its downward departure was the defendant’s "exemplary record" before he committed the offense, and the circumstances surrounding his daughter. The Court pointed out that none of these factors were relevant to the 5K1.1 factors identified in the Guidelines, such as the usefulness of the defendant’s assistance to the government, and the reliability of his information. The Court therefore remanded for resentencing, pointing out that even under advisory guidelines a sentencing court must correctly calculate the Guideline sentence. The Court further noted that, under advisory Guidelines, the farther the court diverges from the advisory guideline sentence, the more compelling the reasons for its divergence must be. The Court concluded that, in the absence of truly compelling reasons, a probation sentence for a multi-billion dollar securities fraud at the expense of the investing public was "not easily reconcilable" with the purposes of punishment set forth in 18 U.S.C. § 3553(a).
At sentencing, the government moved for a § 5K1.1 reduction of sentence, based on McVay’s cooperation. The Guideline sentence was 87 months. The district court departed well below the government’s recommended level, imposing a 60-month sentence of probation, and no jail term.
The Court pointed out that the sentencing court’s only explanation for its downward departure was the defendant’s "exemplary record" before he committed the offense, and the circumstances surrounding his daughter. The Court pointed out that none of these factors were relevant to the 5K1.1 factors identified in the Guidelines, such as the usefulness of the defendant’s assistance to the government, and the reliability of his information. The Court therefore remanded for resentencing, pointing out that even under advisory guidelines a sentencing court must correctly calculate the Guideline sentence. The Court further noted that, under advisory Guidelines, the farther the court diverges from the advisory guideline sentence, the more compelling the reasons for its divergence must be. The Court concluded that, in the absence of truly compelling reasons, a probation sentence for a multi-billion dollar securities fraud at the expense of the investing public was "not easily reconcilable" with the purposes of punishment set forth in 18 U.S.C. § 3553(a).
Wednesday, April 26, 2006
Thomas: no Booker ex post facto violation
In U.S. v. Thomas, No. 05-14151 (Apr. 26, 2006), the Court rejected the defendant’s Booker/Blakely-based ex post facto challenge to his sentence, as well as a Fifth Amendment Indictm Clause argument.
The defendant, who committed his offense pre-Booker, when the Guidelines were not yet advisory, claimed that the Guidelines could not be applied in an advisory way to his conduct without violating ex post facto principles. Rejecting this argument, the Court found no ex post facto because, at the time Thomas committed his crime, the United States Code specified a statutory maximum of life imprisonment for his crime, and the Guidelines informed the defendant that the sentencing judge could engage in fact-finding and could impose a possible life sentence. Thomas said he understood this during the plea colloquy. Thus, the Court found no merit in the argument that Thomas relied on the constitutional implication of Blakely: both at the time he committed his crime and at the plea colloquy, Thomas was on notice that he could receive a sentence within the statutory range based on judicial factfinding that went beyond the jury’s verdict or the facts he admitted in his plea colloquy.
The Court was also unpersuaded by the argument that all facts used to enhance Thomas’s sentence should have been alleged in the indictment. The Court pointed out that under Booker only the use of facts under a mandatory guidelines system created constitutional problems. Here, the district court enhanced Thomas’ sentence based on advisory guidelines.
Finally, the Court rejected Thomas’ challenge to the reasonableness of his sentence. The Court found that the 121-month sentence for being the ring-leader in an attempted robbery was reasonable, and noted that the district court imposed a low-end Guideline sentence based on Thomas’ remorse.
The defendant, who committed his offense pre-Booker, when the Guidelines were not yet advisory, claimed that the Guidelines could not be applied in an advisory way to his conduct without violating ex post facto principles. Rejecting this argument, the Court found no ex post facto because, at the time Thomas committed his crime, the United States Code specified a statutory maximum of life imprisonment for his crime, and the Guidelines informed the defendant that the sentencing judge could engage in fact-finding and could impose a possible life sentence. Thomas said he understood this during the plea colloquy. Thus, the Court found no merit in the argument that Thomas relied on the constitutional implication of Blakely: both at the time he committed his crime and at the plea colloquy, Thomas was on notice that he could receive a sentence within the statutory range based on judicial factfinding that went beyond the jury’s verdict or the facts he admitted in his plea colloquy.
The Court was also unpersuaded by the argument that all facts used to enhance Thomas’s sentence should have been alleged in the indictment. The Court pointed out that under Booker only the use of facts under a mandatory guidelines system created constitutional problems. Here, the district court enhanced Thomas’ sentence based on advisory guidelines.
Finally, the Court rejected Thomas’ challenge to the reasonableness of his sentence. The Court found that the 121-month sentence for being the ring-leader in an attempted robbery was reasonable, and noted that the district court imposed a low-end Guideline sentence based on Thomas’ remorse.
Tuesday, April 25, 2006
Ingram: Speedy Trial Violation
In U.S. v. Ingram, No. 05-10866 (Apr. 25, 2006), the Court (Black, Barkett, Cox) reversed the conviction and remanded with instructions to dismiss the indictment, finding that the delay of over two years between indictment and trial deprived Ingram of his Sixth Amendment right to a fair trial.
In February 2000, Ingram, a convicted felon, while purchasing a firearm from a Greenacres City Pawn Shop, answered "no" to a question on a BATF form which asked whether he had ever been convicted of a felony. In October 2002, the government indicted Ingram for making a false statement to a firearms dealer in connection with an attempted acquisition of a firearm. The indictment was sealed, and a warrant was issued for Ingram’s address.
Between October 2002 and July 2004, the ATF agent made "minimal efforts" to contact Ingram. When Ingram was finally contacted and told he was indicted, he agreed to surrender in court; he filed a motion to dismiss the indictment on Speedy Trial grounds.
The Court noted that under Barker v. Wingo, 407 U.S. 514 (1972) four speedy trial factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy trial right; and (4) prejudice to the defendant. If, all three first factors weigh "heavily" against the government, the defendant need not show actual prejudice.
Here, the more than two-year delay satisfied the first factor.
The Court rejected the district court’s conclusion that Ingram contributed to the delay by making himself difficult to locate. The Court pointed out that Ingram was never aware that he was indicted during the two-year period. He therefore could not having been evading prosecution. The fact that his phone numbers changed also did not show this: "There are many innocent reasons why someone’s phone numbers might change over the course of two and one-half years." The Court found that the delay was caused by the government.
Finally, the defendant did assert his rights.
The Court found that all of these three factors weighed "heavily" in Ingram’s favor, pointing further to the delay between the date of the commission of the offense and the indictment date, the fact that this was not a complex case, and that the ATF agent had knowledge of Ingram’s whereabouts. Consequently, Ingram did not have to show "actual prejudice" from delay in order to establish a Speedy Trial violation.
In February 2000, Ingram, a convicted felon, while purchasing a firearm from a Greenacres City Pawn Shop, answered "no" to a question on a BATF form which asked whether he had ever been convicted of a felony. In October 2002, the government indicted Ingram for making a false statement to a firearms dealer in connection with an attempted acquisition of a firearm. The indictment was sealed, and a warrant was issued for Ingram’s address.
Between October 2002 and July 2004, the ATF agent made "minimal efforts" to contact Ingram. When Ingram was finally contacted and told he was indicted, he agreed to surrender in court; he filed a motion to dismiss the indictment on Speedy Trial grounds.
The Court noted that under Barker v. Wingo, 407 U.S. 514 (1972) four speedy trial factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy trial right; and (4) prejudice to the defendant. If, all three first factors weigh "heavily" against the government, the defendant need not show actual prejudice.
Here, the more than two-year delay satisfied the first factor.
The Court rejected the district court’s conclusion that Ingram contributed to the delay by making himself difficult to locate. The Court pointed out that Ingram was never aware that he was indicted during the two-year period. He therefore could not having been evading prosecution. The fact that his phone numbers changed also did not show this: "There are many innocent reasons why someone’s phone numbers might change over the course of two and one-half years." The Court found that the delay was caused by the government.
Finally, the defendant did assert his rights.
The Court found that all of these three factors weighed "heavily" in Ingram’s favor, pointing further to the delay between the date of the commission of the offense and the indictment date, the fact that this was not a complex case, and that the ATF agent had knowledge of Ingram’s whereabouts. Consequently, Ingram did not have to show "actual prejudice" from delay in order to establish a Speedy Trial violation.
Underwood: Co-Conspirator statements not "testimonial" under Crawford
In U.S. v. Underwood, No. 04-15750 (Apr. 25, 2006), the Court, on plain error review, rejected the argument that 21 U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court also rejected a plain error Booker challenge to the sentence. The Court also held that the admission of co-conspirator statements does not violate Crawford’s Confrontation Clause holding.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
Monday, April 24, 2006
Arbane: Insufficient evidence to import cocaine into U.S.
In U.S. v. Arbane, No 04-15277 (Apr. 21, 2006) (2-1, Wilson, J. dissenting), the Court held that insufficient evidence supported a conviction of defendant convicted of conspiring to import cocaine into the United States.
The Court first rejected the argument that there was no jurisdiction to prosecute Arbane, because he was arrested, without an extradition process, when his flight from Ecuador to Iran stopped in Houston, Texas, on a stopover. Citing U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), the Court noted that the extradition treaty did not divest U.S. Courts of jurisdiction when a defendant’s presence in the United States was obtained otherwise than through a treaty’s extradition process.
The Court, however, found insufficient evidence. The Court noted that in a drug trafficking conspiracy the government had to prove an agreement to import drugs into the U.S. with someone other than a government informant. Here, there was evidence of another co-conspirator, but no evidence that this person, though aware of the existence of drugs, knew that the purpose of the scheme was to import drugs into the U.S. Hence, the evidence was insufficient. The Court pointed out that in a drug importation prosecution, the destination of the drugs (the U.S.) was an essential element of the crime, particularly when, as here, all of the conduct took place in Ecuador, outside the United States, and not even on the High Seas on the way to the United States. "There can be no meeting of the minds if only one mind contains knowledge of the object of the agreement," the Court noted.
The Court first rejected the argument that there was no jurisdiction to prosecute Arbane, because he was arrested, without an extradition process, when his flight from Ecuador to Iran stopped in Houston, Texas, on a stopover. Citing U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), the Court noted that the extradition treaty did not divest U.S. Courts of jurisdiction when a defendant’s presence in the United States was obtained otherwise than through a treaty’s extradition process.
The Court, however, found insufficient evidence. The Court noted that in a drug trafficking conspiracy the government had to prove an agreement to import drugs into the U.S. with someone other than a government informant. Here, there was evidence of another co-conspirator, but no evidence that this person, though aware of the existence of drugs, knew that the purpose of the scheme was to import drugs into the U.S. Hence, the evidence was insufficient. The Court pointed out that in a drug importation prosecution, the destination of the drugs (the U.S.) was an essential element of the crime, particularly when, as here, all of the conduct took place in Ecuador, outside the United States, and not even on the High Seas on the way to the United States. "There can be no meeting of the minds if only one mind contains knowledge of the object of the agreement," the Court noted.
Maxwell: Child Pornography Statute Constitutional
In U.S. v. Maxwell, No. 03-14326 (Apr. 20, 2006), the Court reversed its prior decision, 386 F.3d 1042, and held, in light of the Supreme Court’s intervening decision in Gonzalez v. Raich, 125 S.Ct. 2195 (2005), that the child pornography possession statute, 18 U.S.C. § 2252A, was not unconstitutional as applied to Maxwell.
The Court pointed out that in Raich, the Supreme Court held that Congress did not exceed its Commerce Clause authority when it prohibited the local cultivation of marijuana. The Court noted that in Raich, the Supreme Court held that Congress can regulate purely intrastate activity that is not itself "commercial" if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The Court further noted that Raich involved the comprehensive regulation of an economic activity. Based on Raich, the Court found its prior analysis of the child pornography statute to be incorrect. As with marijuana, Congress had moved to comprehensively regulate child pornography. Congress sought to "eliminate the entire market for child pornography."
The Court noted that its task was not to determine whether Congress had made particularized findings regarding whether conduct affected interstate commerce. Rather, the question was whether "the cumulative effect of the conduct by Maxwell and his ilk would substantially affect interstate commerce." Congress could rationally conclude that it would.
The Court pointed out that in Raich, the Supreme Court held that Congress did not exceed its Commerce Clause authority when it prohibited the local cultivation of marijuana. The Court noted that in Raich, the Supreme Court held that Congress can regulate purely intrastate activity that is not itself "commercial" if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The Court further noted that Raich involved the comprehensive regulation of an economic activity. Based on Raich, the Court found its prior analysis of the child pornography statute to be incorrect. As with marijuana, Congress had moved to comprehensively regulate child pornography. Congress sought to "eliminate the entire market for child pornography."
The Court noted that its task was not to determine whether Congress had made particularized findings regarding whether conduct affected interstate commerce. Rather, the question was whether "the cumulative effect of the conduct by Maxwell and his ilk would substantially affect interstate commerce." Congress could rationally conclude that it would.
Tuesday, April 18, 2006
Bashir: No immunity for warrantless search of home
In Bashir v. Rockdale County, Ga., No. 15-13030 (Apr. 14, 2006), the Court reversed a grant of summary judgment based on qualified immunity to a Georgia Deputy Sheriff.
Bashir, a resident of Rockdale County, Ga., returned to his home one night to find several police cars outside his home. The police had just arrested his wife and two sons on "disorderly conduct" charges. As he spoke with a sergeant, Bashir saw his seven-year-old son crying, unattended in the carport. He picked up his son, and walked inside the house, followed by a deputy sheriff, who had no warrant, and who did not ask permission to enter. Bashir told police "if y’all didn’t do this thing right I am suing the hell out of everybody." Police then rushed into the ome, grabbed Bashir, threw him to the floor, handcuffed him and took him to the jail, where he spent the night.
The Court noted that the Fourth Amendment makes a warrantless arrest in a home unconstitutional unless the the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant. It was undisputed that the Deputy Sheriff had no warrant. The Court concluded that he did not have consent to enter. And the Court rejected the argument that the wife’s arrest twenty minutes earlier created exigent circumstances justifying police entry into the home. The Court further found that these findings were based on clearly established law. The Deputy Sheriff, therefore, was not entitled to qualified immunity to Bashir’s suit under § 1983.
The Court, however, affirmed the dismissal of a separate claim of "excessive force." The Court noted that "excessive force" can be the basis for a separate suit, but found that in this case it was predicated solely on the officer’s lack of authority to make an arrest, and could not go forward.
The Court also affirmed dismissal of state law claims, finding no evidence of the requisite "actual malice" to support such claims.
Bashir, a resident of Rockdale County, Ga., returned to his home one night to find several police cars outside his home. The police had just arrested his wife and two sons on "disorderly conduct" charges. As he spoke with a sergeant, Bashir saw his seven-year-old son crying, unattended in the carport. He picked up his son, and walked inside the house, followed by a deputy sheriff, who had no warrant, and who did not ask permission to enter. Bashir told police "if y’all didn’t do this thing right I am suing the hell out of everybody." Police then rushed into the ome, grabbed Bashir, threw him to the floor, handcuffed him and took him to the jail, where he spent the night.
The Court noted that the Fourth Amendment makes a warrantless arrest in a home unconstitutional unless the the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant. It was undisputed that the Deputy Sheriff had no warrant. The Court concluded that he did not have consent to enter. And the Court rejected the argument that the wife’s arrest twenty minutes earlier created exigent circumstances justifying police entry into the home. The Court further found that these findings were based on clearly established law. The Deputy Sheriff, therefore, was not entitled to qualified immunity to Bashir’s suit under § 1983.
The Court, however, affirmed the dismissal of a separate claim of "excessive force." The Court noted that "excessive force" can be the basis for a separate suit, but found that in this case it was predicated solely on the officer’s lack of authority to make an arrest, and could not go forward.
The Court also affirmed dismissal of state law claims, finding no evidence of the requisite "actual malice" to support such claims.
Monday, April 17, 2006
Williams: Booker Inapplicable to Restitution
In U.S. v. Williams, No. 04-15117 (Apr. 13, 2006), the Court affirmed a doctor’s convictions and sentence for unlawfully dispensing controlled substances.
The Court rejected the argument that expert testimony regarding the ordinary standard of care for dispensing controlled substances should not have been admitted. Noting that the testimony was not objected to at trial, the Court pointed out that this issues was only reviewable for "plain error." The Court found no plain error as no authority existed in any Circuit holding that evidence of noncompliance with the civil standard of care is inadmissible to prove that the action at issue was also outside the course of professional medical practice.
The Court also rejected Williams’ challenge to the jury instruction regarding the standard of care, because it failed to introduce any objective standard by which a physician’s prescribing behavior can be judged. Williams had urged that his "good faith" was a basis for a not guilty verdict. The Court noted that "good faith" did not suffice as a defense to this provision of the Controlled Substances Act.
The Court rejected Williams’ argument that Booker applied to the restitution portion of his sentence. Joining all other Circuits to have addressed the issue, the Court held that the amount of restitution can be imposed by a judge, without jury findings.
The Court rejected the argument that expert testimony regarding the ordinary standard of care for dispensing controlled substances should not have been admitted. Noting that the testimony was not objected to at trial, the Court pointed out that this issues was only reviewable for "plain error." The Court found no plain error as no authority existed in any Circuit holding that evidence of noncompliance with the civil standard of care is inadmissible to prove that the action at issue was also outside the course of professional medical practice.
The Court also rejected Williams’ challenge to the jury instruction regarding the standard of care, because it failed to introduce any objective standard by which a physician’s prescribing behavior can be judged. Williams had urged that his "good faith" was a basis for a not guilty verdict. The Court noted that "good faith" did not suffice as a defense to this provision of the Controlled Substances Act.
The Court rejected Williams’ argument that Booker applied to the restitution portion of his sentence. Joining all other Circuits to have addressed the issue, the Court held that the amount of restitution can be imposed by a judge, without jury findings.
Thursday, April 13, 2006
Coloma: Concurrent sentence can credit time served prospectively, not retrospectively
In Colomba v. Holder, No. 05-13728 (Apr. 11, 2006), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241 to an inmate who challenged the Bureau of Prisons (BOP) determination regarding a concurrent sentence. BOP found that the concurrent sentence did not begin to run on the date that the first sentence was imposed, but on the date Colomba began serving his second sentence.
Colomba was convicted for two related drug trafficking offenses in two separate prosecutions. The second conviction ended with the imposition of a sentence to run concurrently with the first, which had been imposed three years earlier. Colomba argued that the sentencing court in the second case intended for the time to run from the date, three years earlier, when he began serving the first sentence, and sought an order directing BOP to so calculate his sentence.
Rejecting the argument, the Court pointed out that the concurrent sentence, as with all sentences, began to run on the date the defendant was received in custody. 18 U.S.C. § 3585. Thus, the concurrent sentence did not begin on the date of the first sentence, but on the date Coloma was received in custody for the second, concurrent sentence. The Court recognized that under USSG § 5G1.3, the sentencing court can shorten a concurrent sentence to reflect time already served. But the Guideline commentary makes clear that a sentence cannot begin prior to the date it is pronounced. Because the time for filing a § 2255 petition challenging the concurrent sentence itself had expired, the Court "presumed" that the sentencing court properly applied § 5G1.3, and deducted prospectively time from the concurrent sentence. The Court recognized that the Third Circuit held that § 5G1.3 allows a sentencing court to run a concurrent sentence "retrospectively," but held that no such authority exists.
Colomba was convicted for two related drug trafficking offenses in two separate prosecutions. The second conviction ended with the imposition of a sentence to run concurrently with the first, which had been imposed three years earlier. Colomba argued that the sentencing court in the second case intended for the time to run from the date, three years earlier, when he began serving the first sentence, and sought an order directing BOP to so calculate his sentence.
Rejecting the argument, the Court pointed out that the concurrent sentence, as with all sentences, began to run on the date the defendant was received in custody. 18 U.S.C. § 3585. Thus, the concurrent sentence did not begin on the date of the first sentence, but on the date Coloma was received in custody for the second, concurrent sentence. The Court recognized that under USSG § 5G1.3, the sentencing court can shorten a concurrent sentence to reflect time already served. But the Guideline commentary makes clear that a sentence cannot begin prior to the date it is pronounced. Because the time for filing a § 2255 petition challenging the concurrent sentence itself had expired, the Court "presumed" that the sentencing court properly applied § 5G1.3, and deducted prospectively time from the concurrent sentence. The Court recognized that the Third Circuit held that § 5G1.3 allows a sentencing court to run a concurrent sentence "retrospectively," but held that no such authority exists.
Friday, April 07, 2006
Williams: "Pandering" Child Porn Provision Struck Down
In U.S. v. Williams, No. 04-15128 (April 6, 2006), the Court (Barkett, Wilson, Reavley b.d.) struck down as violative of the First Amendment the "pandering" child pornography provision of the Protect Act. The Court affirmed Williams’ conviction for possessing child pornography, and rejected a Booker challenge to the 60-month sentence imposed for that conviction.
The pandering provision of the Protect Act criminalized promoting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is or contains [child pornography]." 18 U.S.C. § 2252A(a)(3)(B). The Court found that this provision was overbroad. First, because the provision encompassed "purported" child pornography, or material that reflects a belief that it contains such pornography, the provision swept not just "real" child pornography, but legal child erotica. Further, by having "beliefs" trigger criminal liability, the law effectively focused on thoughts. The Court recognized that, under Supreme Court caselaw, pandering might be probative evidence of intent to unlawfully traffic in child pornography, but held that pandering alone could not, as the statute was written, be the basis for an independent crime.
The Court found Congress’ legislative findings inadequate to sustain the pandering law. The rationale of suppressing the market for child pornography had already been rejected by the Supreme Court in Free Speech Coalition as inadequate, and the Court found no findings which supported the claim now. The Court also noted that the First Amendment does not allow the government to suppress lawful speech as a means of suppressing unlawful speech.
The Court also found the law unconstitutionally vague. The Court pointed out that the law gave the government overbroad discretion in deciding whom to prosecute among persons who arguably had "intended to cause another to believe" that they were promoting child pornography. The pandering provision requires no inquiry into the actual nature or even existence of the images, and provides no affirmative defense that hte underlying material are not, in fact, illegal child pornography.
Turning to the sentence, the Court noted that, given the district court’s statement that it doubted the sentence would be lower under non-mandatory Guidelines, and that the sentence might even be higher, the sentence was not "substantially swayed" by the district court’s Booker error in sentencing under mandatory Guidelines.
The pandering provision of the Protect Act criminalized promoting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is or contains [child pornography]." 18 U.S.C. § 2252A(a)(3)(B). The Court found that this provision was overbroad. First, because the provision encompassed "purported" child pornography, or material that reflects a belief that it contains such pornography, the provision swept not just "real" child pornography, but legal child erotica. Further, by having "beliefs" trigger criminal liability, the law effectively focused on thoughts. The Court recognized that, under Supreme Court caselaw, pandering might be probative evidence of intent to unlawfully traffic in child pornography, but held that pandering alone could not, as the statute was written, be the basis for an independent crime.
The Court found Congress’ legislative findings inadequate to sustain the pandering law. The rationale of suppressing the market for child pornography had already been rejected by the Supreme Court in Free Speech Coalition as inadequate, and the Court found no findings which supported the claim now. The Court also noted that the First Amendment does not allow the government to suppress lawful speech as a means of suppressing unlawful speech.
The Court also found the law unconstitutionally vague. The Court pointed out that the law gave the government overbroad discretion in deciding whom to prosecute among persons who arguably had "intended to cause another to believe" that they were promoting child pornography. The pandering provision requires no inquiry into the actual nature or even existence of the images, and provides no affirmative defense that hte underlying material are not, in fact, illegal child pornography.
Turning to the sentence, the Court noted that, given the district court’s statement that it doubted the sentence would be lower under non-mandatory Guidelines, and that the sentence might even be higher, the sentence was not "substantially swayed" by the district court’s Booker error in sentencing under mandatory Guidelines.
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