Campa: Cuban Shootdown convictions upheld

In U.S. v. Campa, No. 01-17176 (June 4, 2008), the Court affirmed all convictions of all defendants convicted of espionage and related offenses.
The Court rejected the challenges to evidence obtained from searches authorized under the Foreign Intelligence Surveillance Act. The Court noted that the government certifications in the search application were not clearly erroneous.
The Court rejected the argument that the district court should not have held an ex parte hearing regarding the government’s discovery obligations under the Classified Information Procedures Act, noting that the Act did not prohibit such a hearing. The district court also did not err when it declined to unseal the record of its ex parte hearing, as the statute has no provision for unsealing, and the government’s right to keep some classified information from defense counsel would be ineffective if, after the trial, the government had to expose the information.
The Court also rejected a Batson challenge to the government’s challenges of black venire members, noting that the unchallenged presence of blacks on the jury.
The Court held that the failure to register as a foreign agent offense was a general intent crime, and therefore rejected the claim that a defendant’s knowledge of the registration requirement was an element of the offense.
The Court also rejected challenges to the sufficiency of the evidence, noting, among other things, the defendants’ overt acts in furtherance of a conspiracy, such as flying over Homestead Air Base, encrypted work directions, an "escape plan," and a counterfeit passport.
The Court rejected the argument that the conspiracy to murder must involve an intent to murder within the special jurisdiction of the United States, noting that mens rea does not extend to the jurisdictional elements of an offense.
The Court rejected the argument that a defendant did not know the object (murder) of the conspiracy, pointing out that he wrote a message after the shootdown of Brothers to the Rescue planes that called the "operation to which we contributed" a "success." The Court also rejected the argument that the government should have called an expert witness to interpret the messages that the defendant received from the Cuban government: "the meaning of the messages was evident." The Court added that the "malice aforethought" element of murder was established by proof of the defendant’s knowledge of the plan to shoot down planes, and that the death of persons on board was "substantially certain." (Judge Kravitch dissented, stating that the government had only proved an intent to "confront" airplanes, not to shoot them down).
Turning to sentencing, the Court agreed with Campa that he should not have received a USSG § 3B1.1 "manager or supervisor" enhancement. The enhancement was based on his managing the assets of the conspiracy, which is an insufficient basis for imposing this enhancement. The Court therefore vacated this portion of the sentence and remanded for resentencing.
As to Medina, the Court agreed that the district court should have considered whether a downward departure was warranted in light of the "little harm" that his information would caused, even if it were categorized as "top secret." The Court affirmed Medina’s obstruction enhancement, finding that giving a false name to a magistrate at a detention hearing qualifies for this enhancement.
As to Guerrero, the Court affirmed a "special skills" enhancement: "Skills in civil engineering, radio technology, and computer technology are legitimate skills that Guerrero turned to criminal purposes."

Johnson: Florida battery is a "violent felony" for ACCA

In U.S. v. Johnson, No. 07-13497 (May 30, 2008), the Court held that a defendant’s prior Florida state conviction for battery qualifies as a "violent felony" for purposes of the ACCA mandatory minimum for felon in possession of ammunition offenders who have three prior convictions.
The Court noted that the Florida battery offense requires at a minimum the actual and intentional touching or striking of another person against that other person’s will. Accordingly, the offense has the requisite use or attempted use of force necessary to qualify as a "violent felony." The Court rejected the argument that the Florida battery offense should not be considered a "violent felony" because the Florida Supreme Court had held that under Florida state law, when, as in Johnson’s case, the battery had been a misdemeanor elevated to the status of a felony, the offense did not invariably enough involve enough force to be considered a "forcible felony" for purposes of Florida’s habitual offender law. First, the Florida Supreme Court case had been decided 19 days before the Eleventh Circuit’s own prior interpretation of the Florida battery statute, and even though the Eleventh Circuit might have overlooked the case, it now remained bound by its own precedent. Second, the Florida case involve state law, not federal law, and the Court remained bound by its prior holding that "touching" or "striking" suffices to establish the element of force needed to trigger the ACCA enhancement.

Day: Challenge to Georgia Parole Board Timely

In Day v. Hall, No. 06-16060 (May 29, 2008), the Court held that a Georgia inmate’s federal habeas petition should not have been dismissed as untimely, and therefore reversed the district court’s dismissal. The Court rejected the argument that the AEDPA one-year statute of limitations started to run from date Day was first denied parole. The Court noted that his challenge to the Parole Board’s failure to promulgate an eligibility requirement for parole was properly brought as the petition for mandamus in Georgia state courts. This proceeding, combined with other proceedings, was pending for 362 days – less than the one-year limitations period.

Young: Superseding Indictment Violates Speedy Trial Act

In U.S. v. Young, No. 07-13626 (May 27, 2008), the Court held that one count of conviction should have been dismissed (with or without prejudice) for violation of the Speedy Trial Act.
The government initially indicted Young on a single count for possessing an unregistered silencer. Two months later, the government filed a five-count superseding indictment, which included the original silencer count and four additional, unrelated drug counts. Prior to trial, Young moved to dismiss the silencer count on Speedy Trial grounds, because more than seventy days had passed since his original indictment.
The Court held that the silencer count should have been dismissed on Speedy Trial grounds. The Court noted that the situation where a supervising indictment is filed is analogous to the dismissal of an indictment followed by a new indictment – a situation squarely covered by the Speedy Trial Act. The Court therefore remanded the case to the district court to determine the appropriate form of dismissal of the silencer count.

Mendez: 371 requires United States to be conspiracy's target

In U.S. v. Mendez, No. 07-13433 (May 21, 2008), the Court reversed a conspiracy to defraud the United States conviction, under 18 U.S.C. § 371, because the fraud involved Florida commercial driver’s licenses, which did not defraud the "United States," as the statute requires.
The district court had held that there was sufficient federal involvement in the fraud because the federal government issued regulations for obtaining a commercial driver’s licence. Reversing, the Court said this connection was insufficient to show that the United States was the "target" of the fraud. It also did not suffice that the Florida guidebook for licenses referenced the United States regulations, since the defendant did not know of this reference.
The Court, however, upheld Mendez’ separate conviction for unlawful production of a false commercial licence, in violation of 18 U.S.C. § 1028(a)(1). The Court rejected the argument that there was an insufficient nexus with interstate commerce. The Court pointed out that Mendez intended to operate a commercial vehicle, and, even if the vehicle never left Florida, its operation in Florida sufficed to establish the minimal nexus required.

Carruth: Failure to give Defendant Right to Allocute is Plain Error

In U.S. v. Carruth, No. 07-12060 (May 22, 2008), the Court vacated a sentence for violation of supervised release because the district court failed to give the defendant an opportunity to allocute, as required by Fed. R. Crim. P. 32.1(b)(2)(E).
On plain error review, the Court cited the text of the Rule, Supreme Court precedent, and its own precedent, for the principle that a district "must personally extend to the defendant the right of allocution." The Court added that prejudice "is presumed" when a defendant is not given an opportunity to allocute and there exists the possibility of a lower sentence.

Madera: Attorney General Decides Sex Offender Retroactivity

In U.S. v. Madera, No. 07-12176 (May 23, 2008), the Court reversed the district court for failing to dismiss an indictment that charged Madera with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006.
The defendant, having been convicted of sexual abuse in New York, moved to Florida, but failed to register a sex offender. This occurred shortly after the enactment of the Walsh Act but before the Attorney General had promulgated rules governing whether previously convicted sex offenders were retroactively subject to the new law. The district court held that it had the power to determine whether the Walsh Act applied retroactively, held that it did apply retroactively and did apply to Madera. Reversing, the Court noted that the Act vested this power exclusively in the Attorney General. Because the Attorney General had not yet promulgated retroactivity rules, Madera could not be charged with having failed to register.

Young: Battery Involving Fluids is 4B1.1 crime of violence

In U.S. v. Young, No. 07-14780 (May 19, 2008), the Court held that a prior Florida state conviction for "Battery of a Child Involving Fluids" qualifies as a crime of violence for purposes of the career offender enhancement, USSG § 4B1.1. The Court noted that a "crime of violence" involves the use of "physical force." The Court noted that "physical force" is different from "violent force." The statute at issue requires the violator to cause the child to come into contact with bodily fluids by "throwing, tossing, projecting, or expelling" the fluids, that is, it requires a physical act, directed against a person, and the "minimal contact" of the impact of the fluids satisfies this requirement.

Newland: No ineffectiveness in failing to establish confession was coerced

In Newland v. Hall, No. 05-15981 (May 14, 2008), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court rejected the argument that defense counsel was ineffective for failing to introduce in evidence police threats to charge the defendant’s wife with aggravated assault, and murder, to establish that the defendant’s confession was coerced. The Court noted that the defendant waited a full day after hearing the threats before confessing, and, in addition, the wife could have been charged with a crime in connection with the murder.
The Court also rejected the argument that counsel was ineffective for failing to investigate Newland’s background, which would have helped him find mitigating evidence and avoid the death penalty. The Court declined to fault counsel for not uncovering evidence about the defendant’s childhood and neurological disorder, because the defendant himself opted not to have counsel pursue these matters. The Court also declined to fault counsel for failing to rely on these matters at sentencing, noting that counsel’s strategy of portraying the crime as a single aberrant episode was less problematic than relying on a history of disorders.

Williams: No Organizer Enhancement where Husband was not criminally responsible

In U.S. v. Williams, No. 06-15318 (May 16, 2008), the Court affirmed the convictions of a defendant convicted of fraud in connection with the unauthorized use of federal grant moneys to a daycare center, but reversed parts of the sentence.
Reviewing for plain error, the Court rejected Williams’ Double Jeopardy claim that her conviction for theft of federal funds was duplicative of her conviction for wire fraud. Applying the Blockburger test, the Court noted that unlike wire fraud, federal theft involves no use of interstate wires. Thus, the crimes have different elements.
The Court also rejected the argument that the seven counts of wire fraud were multiplicitous. The Court pointed out that wire fraud punishes separately each execution of a scheme, and the government was therefore justified in charging Williams for each time funds were wired into Williams’ account as a result of her fraud. The Court found no bad faith on the part of the government in making seven separate wire transactions.
The Court also rejected Williams’ challenge to the sufficiency of the evidence, noting the testimony of employees who were fired by Williams after they questioned her use of federal funds.
The Court rejected Williams’ claim that the jury instructions amended the indictment when they instructed the jury that bookkeepers could be considered accomplices in the crime. The Court found that in light of the evidence presented, this was not what the instructions meant.
Turning to the sentence, the Court reversed the district court’s imposition of a two-level "organizer" enhancement. The enhancement was based on the defendant’s supervision of her own husband’s participation in the theft. The Court noted that the husband was acquitted of theft, but pointed out that this acquittal of itself did not bar the wife’s sentence enhancement, because different standards of proof exist at trial and at sentencing. However, the Court found the evidence was insufficient to show that the husband was "criminally responsible" for theft or fraud.
The Court also reversed the imposition of an "abuse of trust" sentence enhancement. The Court noted that the abuse of trust enhancement requires the defendant to have been in a fiduciary relationship to the victim. Here no such relationship existed between Williams, her firm, and the government agency from which she received grants. The Court further noted that the base offense level for Williams’ fraud already accounted for her violation of her grant conditions.
The Court affirmed the imposition of an obstruction enhancement, based on Williams’ alteration of accounting records once she became aware of the government’s investigation.

Hendrix: Judge's Appearance of Bias not a basis for habeas relief

In U.S. v. Hendrix, No. 07-12117 (May 13, 2008), the Court denied habeas relief to a Florida death row inmate sentenced.
The Court rejected Hendrix’ challenge to the refusal of the state court judge to recuse himself. The Court noted that Hendrix bore the burden of showing that the presiding judge had considered matters not disclosed to the defendant. The Court added that the mere "appearance of bias" was insufficient to warrant habeas relief.
The Court also rejected the claim that trial counsel was ineffective for failing to call an additional mental health expert, pointing out that this expert wrote that the defendant committed a "calculated" murder, and did not suffer from a mental defect.
Finally, the Court concluded that undisclosed evidence was not "material" to Hendrix’ trial in view of the other overwhelming evidence against him.

Ferguson: Faretta Habeas Claim requires review of state trial transcript

In Ferguson v. Culliver, No. 07-13030 (May 13, 2008), the Court reversed the denial of habeas relief to an Alabama inmate.
The defendant claimed that the Alabama state trial court denied him his Faretta right to self-representation. In habeas proceedings, the State did not produce the transcripts of Ferguson’s trial, but instead relied on an appellate court decision which had affirmed the denial of Farretta relief. The Court held that the district court erred in merely relying on an appellate court decision in denying habeas relief. The district court should have reviewed the trial transcripts for its determination of this "fact-intensive" issue.

Padron: Criminal Forfeiture of Money Applies to Fraud

In U.S. v. Padron, No. 07-11228 (May 13, 2008), the Court affirmed the conviction and sentence of a defendant convicted of a mail fraud scheme arising out of a personal injury clinic that obtained money from insurance companies by submitting false claims.
The Court rejected the argument that an acquittal should have been directed because the defendant was entrapped. The Court relied on evidence that showed that Padron was predisposed to commit the fraud.
Turning to the sentence, the Court affirmed the district court’s calculation of the loss amount, pointing that the Guidelines hold a defendant accountable for "the full intended loss amount." The Court also rejected the argument that the district court lacked jurisdiction to enter a judgment of forfeiture with regard to money. The Court noted that criminal forfeiture applies in every case for which civil forfeiture is authorized, and civil forfeiture, in turn, applies to all "specified unlawful activity" – and fraud is listed as a specified unlawful activity.

Williams: Coca Cola Trade Secrets Theft Judgment Affirmed

In U.S. v. Williams, No. 07-12526 (March 20, 2008), the Court affirmed convictions and sentences imposed on two defendants who attempted to sell Coca-Cola trade secrets to Pepsi, in violation of 18 U.S.C. § 1832(a)(1), (3) and (5).
The Court rejected the argument that defense cross-examination of a cooperating prosecution witness was unduly limited, pointing out that defense counsel had already presented the jury with substantial evidence to draw a fair inference about the witness’ credibility, and that the witness’ further testimony would not have given the jury a different impression.
The Court also rejected the argument that the trial court unduly limited the closing argument when it instructed the jury that defense counsel’s explanation of "reasonable doubt" was inaccurate, when he compared the concept to a patient’s desire for a second opinion when told of the need to have both legs amputated.
The Court also found no reversible error in the district court’s use of his own open-heart surgery example to describe "reasonable doubt," pointing out that, after counsel objected, the court gave a curative instruction.
Turning to the sentences, the Court upheld the 96-month and 60-month above-Guideline sentences as reasonable. Emphasizing the deference now owed district court in weighing the § 3553(a) factors, the Court cited, without criticism, the district court’s reference to the harm that Coca-Cola would have suffered had the defendants succeeded in selling its trade secrets to a rival, and the danger to the United States economy these crimes pose.

Harris: Search of Cab Passenger Compartment Did not Violate 4th Amend.

In U.S. v. Harris, No. 07-13473 (May 8, 2008), the Court affirmed the denial of a motion to suppress a firearm found after a search of a taxi in which the defendant had been riding.
An Atlanta, Georgia, police officer saw Harris remove what appeared to be a handgun from bushes, and get into a taxi. The officer followed the cab, and pulled the cab over when the cab failed to use its turn signal when changing lanes. The officer searched Harris and found nothing on him. The officer then asked the cab driver for consent to search the cab, and found a .357 magnum under the floor mat. Harris, charged with being a felon in possession of a firearm, moved to suppress the firearm on the ground that the search violated the Fourth Amendment.
The Court noted that the officer had probable cause to stop the cab, because of the failure to use a turn signal during a lane change. The officer also had reasonable suspicion to search Harris’ person, as an investigatory Terry stop.
Turning to the search of the cab, the Court noted that Harris had an expectation of privacy in the passenger compartment, because he closed the door to the cab when he got out of the car. However, this expectation of privacy did not trump the cab driver’s consent to the search of the cab – a consent on which the officer reasonably relied, because Harris stayed silent, and "never expressed disagreement with the driver’s consent."
The Court also rejected Harris claim that his statements given to federal law enforcement officials should have been suppressed, because at the time he was represented by counsel in pending state proceedings, and his right to counsel had therefore attached – citing U.S. v. Burgest, 2008 WL 659550 (11th Cir. March 13, 2008).

Hunt: Affirming police officer's false report obstruction conviction

In U.S. v. Hunt, No. 06-16641 (May 5, 2008), the Court affirmed a conviction and sentence for making a false entry in a police report with the intent to impede an FBI investigation.
Hunt, a Prichard, Alabama police officer, was involved in an arrest where he threw the person to the ground, causing injury and permanent hearing loss. In his police report, however, Hunt stated (falsely) that he had been grabbed first by the person under arrest.
The Court rejected the argument that the statute of conviction, 18 U.S.C. § 1519, was unconstitutionally vague. Though the statute was passed as part of the Sarbanes-Oxley Act, its application need not be cabined to the corporate malfeasance at which the Act was targeted, so long as the plain language does not produce absurd results.
Citing the language of § 1519, the Court also rejected the argument that the statute contemplated only alterations of a pre-existing document, not, as here, the making of a false entry upon a document’s creation.
The Court also rejected a challenge to the sufficiency of the evidence on the question of whether Hunt intended to obstruct an FBI investigation. The Court noted a number of pieces of circumstantial evidence – including the fact that Hunt stuck to his false story more than a year after the incident – from which the jury could reasonably infer the intent element.
The Court rejected Hunt’s challenge to his sentence of five months imprisonment, followed by five months of supervised release, noting that the district court had noted, reasonably, the need to deter other police officers from filing false reports.

Edwards: Conspiracy Evidence Sufficient

In U.S. v. Edwards, No. 06-11643 (May 5, 2008), the Court affirmed fraud and money laundering convictions arising out of a Ponzi scheme involving investments in coin-operated payphones.
Edwards failed to renew his motion for judgment of acquittal at the close of all the evidence, as required by Fed. R. Crim. P. 29. Accordingly, the Court reviewed his challenge to the sufficiency of the evidence only for "a manifest miscarriage of justice." The Court held that the evidence was sufficient, noting that Edwards was aggressively courting investors with claims that his company was sound and profitable, when it was, in reality, "hemorrhaging money." Turning to the conspiracy conviction, the court noted that since conspiracies are "inevitably secret," they are "rarely established by direct evidence." The Court concluded that Edwards’ wife was not aware that what she was doing was illegal, and she therefore was not a conspirator. However, another senior manager at Edwards’ companies participated in the transfers of money, and inferences from his conduct sufficed to establish that he had conspired with Edwards to launder the fraud proceeds.
The Court rejected Edwards’ argument that victims of his fraud who were going to be called as government witnesses should have excluded from the courtroom during the trial under Fed. R. Evid. 615. The Court noted that the Crime Victims Act provides an exception to Rule 615 for victims, and the Court found no constitutional basis for invalidating this exception, and no abuse of discretion in the district court’s application of it.
The Court also found no "collusion" between the SEC and the United States Attorney’s Office in acquiring and sharing information about Edwards’ corporations. The Court further rejected an argument that the fraud jury instruction constructively amended the indictment because it expanded the mens rea for the offense.
The Court did not address Edwards’ challenges to his sentence because it vacated the sentence and remanded for resentencing: the district court failed to specify, as required, a sentence for each count of conviction.

Brown: Plea Voluntary Even If Court does not explain essential elements of the offense

In U.S. v. Brown, No. 05-16128 (April 29, 2008), the Court affirmed the conviction and 235 month sentence of a defendant convicted of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
Reviewing the issue for plain error, the Court rejected the argument that Brown’s plea was involuntary because the district court did not explain the elements of the offense. The Court noted that the omission, while "not ideal," was not plain error, since the elements of the offense were not difficult to understand from the indictment and the factual description of his conduct. The Court recognized that a less than full explanation of the elements of the offense could impair a defendant’s understanding of possible defenses, and thereby undermine the voluntariness of his plea (an understanding of possible defenses being, the Court appeared to assume, just as essential to the nature of the offense as the elements that constitute it). However, no realistic offense could have made Brown forego a plea of guilt, given their "significant weaknesses."
The Court also rejected the argument that the plea was involuntary because Brown was not told he would eventually be sentenced as a career offender. The Court decline to reach, on direct appeal, the merits of Brown’s claim that the prosecutor misled him into believing that he would not be sentenced as a career offender.
The Court also rejected an Ex Post Facto challenge to the sentencing court’s reliance on an intervening Eleventh Circuit interpretation of "crime of violence" as a basis for making Brown’s § 2422(b) conviction qualify for punishment under the harsher career offender guidelines. The Court noted that the maximum sentence set forth in the U.S. Code provides a person with sufficient notice, for Ex Post Facto purposes, as to the possible punishment, and intervening caselaw interpreting the Guidelines is therefore "immaterial" to the analysis.
The Court further rejected the argument that the sentencing court violated his constitutional rights when it relied on Ohio docket sheets for the purpose of determining the nature of a prior conviction. The Court noted that the rule limiting the types of information a court can consider to determine the nature of prior convictions is not constitutional. Further, the docket sheets here were not unclear as to the nature of Brown’s prior convictions.
Turning the reasonableness of the sentence, the Court found that the district court’s failure to discuss mitigation evidence did not mean if failed to consider this evidence. The Court found the within-Guideline sentence "reasonable." Finally, the Court rejected the argument that "pervasive bias" infected the sentencing court’s sentencing.

Moore: Sex for Contraband Conspiracy Affirmed

In U.S. v. Moore, No. 07-10326 (April 22, 2008), the Court affirmed the convictions of two correctional officers convicted of "bribery."
The Court rejected a challenge to the sufficiency of the conspiracy evidence, noting that while the government witness gave conflicting testimony, the jury was free to credit the testimony that the correctional officers agreed to participate in a "sex for contraband conspiracy."
The Court rejected defendants’ argument that the mere acts of switching guard duty to avoid detection, allowing inmate use of the telephone, allowing inmates to leave their unit at night, were not "official acts" for purposes of the illegal gratuity statute. The Court pointed out that an "official act" need not involve a violation of a statute, but could involve the mere violation of an established practice. Under this broader definition, the defendants’ acts were "official acts."
The Court also rejected the argument that there were multiple conspiracies, not a single "sex for contraband" conspiracy. The Court found no "material variance" from the indictment, noting that the defendants acts all had a "common goal," an "underlying scheme," and "overlapping arrangements." Further, a multiple conspiracy jury instruction was not required, because the evidence showed a common scheme.
The Court rejected the argument that the Court constructively amended the indictment when it specifically instructed the jury that it is a violation of an officer’s duty to provide contraband to an inmate. The Court noted that this language was largely based on the indictment and did not expand the grounds for conviction.
The Court also found no "plain error" in the jury instruction that sex is a "thing of value."

Livesay: Inadequate Explanation for sentence variance

In U.S. v. Livesay, No. 06-11303 (April 23, 2008), the Court reversed the sentence of 60 months’ probation imposed on a former controller at HealthSouth corporation, for his role in this company’s $1.4 billion fraud. The sentence reflected a downward 5K1.1 departure, based on the defendant’s substantial assistance to authorities, from the Guideline range of 78-97 months.
The Court noted that the sentencing court relied on the fact that Livesay "repudiated the conspiracy at an early time." The Court pointed out, however, that repudiation from a conspiracy is not related to substantial assistance. Hence, the sentencing court committed procedural error.
The sentencing court also committed procedural error in failing to give any explanation of its reasons for imposing a sentence of 60 months’ probation; the sentencing court failed to give any reasoning or indication of what facts justified its significant variance from the advisory Guidelines range. It also failed to discuss how its sentence would satisfy the § 3553(a) factors. This failure precluded meaningful appellate review. The district court listed the sentences received by others in the HealthSouth fraud, but did not indicate how Livesay’s culpability compared to theirs.

Velasquez: Immigration Status Not a Proper Sentencing Factor

In U.S. v. Velasquez, No. 06-16637 (April 21, 2008), the Court vacated a nine-month sentence imposed on a defendant for violation of supervised release.
The defendant pled guilty and was sentenced to time served and two years supervised release for use of a counterfeit visa for entry into the United States, in violation of 18 U.S.C. § 1546(a). While on supervised release, the defendant was arrested for driving with a suspended licence. Though recognizing the "de minimus" nature of this supervised release violation, the district court imposed the high-end guideline range sentence of nine months, because of its concern that a person in the United States illegally should not be allowed to "roam free." The district court also questioned the wisdom of immigration authorities in letting an illegal alien out of custody, on bond, while his immigration asylum application was pending.
The Court vacated the sentence, pointing out that Congress vested authority to detain removable aliens in the United States, not in the courts. "[A] judge may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal view of immigration policy." http://www.ca11.uscourts.gov/opinions/ops/200616637.pdf

Harrell: Obstruction enhancement includes underlying crimes

In U.S. v. Harrell, No. 06-15410 (April 17, 2006), on a government appeal, the Court held that the sentencing court erred in declining to impose the Guidelines cross-reference enhancement for obstruction of justice, USSG § 2J1.2, with regard to obstruction that occurred "in respect to" other underlying crimes.
The defendant was convicted of obstruction of justice for attempting to convince a witness to support his version of a conversation he had with another person, which itself also involved witness tampering. At sentencing, the government claimed that the obstruction of justice sentence should be enhanced, in accord with the guideline cross-reference provision, based on the seriousness of the underlying crimes for which Harrell was being prosecuted when he obstructed justice.
The Court agreed that the Guideline enhancement should apply with respect to the underlying crimes for which the prosecution would have been obstructed had the tampering been successful, for example, if a prosecution’s witness’ credibility was successfully undermined. However, the enhancement would not apply to charges that were severed from the trial at which Harrell’s obstruction conduct was at issue. "For the obstruction of justice [enhancement] to be cross-referenced, the obstruction of justice must have had the potential to disrupt the government’s investigation or prosecution of [the] crimes."

Westry: Hearsay statement to a friend can be against penal interest

In U.S. v. Westry, No. 06-13847 (April 16, 2008), the Court affirmed convictions and vacated in part sentences for a number defendants convicted of drug trafficking morphine, methadone, oxycontin and other drugs.
The Court rejected a challenge to the sufficiency of the evidence of conspiracy. The Court rejected the claim that because the defendants were at time in competition with each other for drug suppliers or customers, they were not part of a conspiracy. The Court pointed to evidence of "interrelatedness" of the defendant’s conduct. The Court further noted that "the existence of healthy competition" did not negate supplying consumers’ demand. As to one defendant, the Court rejected a "mere presence" claim, pointing out that he accepted a cash payment from an undercover officer to pay for his drug trafficking-related travel.
The Court also rejected the claim that a hearsay statement from a cocaine addict (and eventual victim of overdose) regarding the source of his cocaine. The Court recognized that the statement was made to a friend. However, it still could be treated as a "statement against penal interest," because of the chance, "albeit slight," that the declarant’s admission that he was waiting for cocaine would subject him to severe penalties.
The Court found no error in the refusal to give jury instructions regarding the defense of withdrawal from a conspiracy. The only evidence of withdrawal was a statement that one defendant "wasn’t involved" anymore. Because withdrawal requires "affirmative action to disavow or defeat the purpose of the conspiracy," there was insufficient evidence to support a withdrawal instruction.
The Court also rejected a challenge to the Pinkerton jury instructions. The defendants had sought instructions that specified that the amount of drugs at issue, and the death of drug user, were reasonably foreseeable. The Court upheld instructions which more generally instructed the jury that a co-conspirator is responsible for others’ crimes that were "a reasonably foreseeable consequence of the conspiracy."
Turning to sentencing, the Court found no error in the application of the "death enhancement," based on the death of an addict from an overdose from an injection of methadone sold by the defendants. "Where a conspirator is involved in distributing drugs to addicts, some of which are even administered intravenously, it is a reasonably foreseeable consequence that one or more of those addicts may overdose and die."
As to one defendant, however, the Court agreed that the evidence was too "meager" to support a death enhancement, as it only showed his "presence and association" with a member of the conspiracy prior to the death of the addict. A defendant cannot be held accountable for a death that occurred prior to his entry into conspiracy.
The Court, however, affirmed the imposition of a firearm enhancement. The Court held that a firearm’s possession is a reasonably foreseeable consequence of a "long-standing operation of a drug house." In any event, any error in applying the enhancement was harmless, in light of the life sentences imposed on other bases.

Begay: DUI is not a "violent felony"

In Begay v. U.S., No. 06-11543, the Supreme Court held that a felony conviction for driving under the influence of alcohol (DUI) falls outside the scope of the "violent felony" definition, for purposes of imposing a mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior "violent felony" convictions.
The Court concluded that DUI is too unlike the four examples Congress listed in the "violent felony" definition, namely "burglary, arson, or extortion, or [an offense that] involves use of explosives," to indicate that Congress intended that provision to cover DUI. "[T]he statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another." (Emphasis in original).
The Court found that DUI differs from the four example crimes, in that it does not involve the violence and aggressive conduct typical of them. The Court noted that a contrary definition would take in crimes "far removed . . . from the deliberate kind of behavior associated with the violent criminal use of firearms."

Mock: Attempted Murder Enhancement Requires Findings

In U.S. v. Mock, No. 06-15861 (April 14, 2008), the Court affirmed a defendant’s arson convictions, but reversed the sentence because the district court did not make explicit findings of fact to support its attempted murder enhancement.
The Court rejected a challenge to remarks in the prosecutor’s closing argument, noting that while "colorful," they did not jeopardize the fairness of the trial. The Court also rejected a variety of challenges to the trial court’s evidentiary rulings.
Turning to the sentence, the Court noted that USSG § 2A2.1 provides for a sentence enhancement for arson offenses if the offender "attempted to cause death" by first-degree murder. The trial court imposed this enhancement, without making explicit findings. The Court noted that findings are necessary to facilitate judicial review. The Court therefore vacated the sentence and remanded for resentencing.

Ellisor: Christmas Show Fraud Punished by 87 months

In U.S. v. Ellisor, No. 05-14459 (April 7, 2008), the Court affirmed the mail fraud convictions and 87-month sentence of a defendant convicted of defrauding schools and children’s parents of money paid for tickets for a non-existent "Christmas Around the World Show."
The Court rejected Ellisor’s claim that the district court violated Fed. R. Evid. 404(b) when it admitted evidence of two prior incidents, a fraudulent "Washington D.C. on Tour" show, and his non-payment of his $ 1,657 charges at Coconut Grove’s Doubletree Hotel. The first incident showed Ellisor’s "intent to defraud by promoting an illusory show," while the evidence of the unpaid hotel bill was intertwined with the proof of the government’s fraud case, occurring as it did in the weeks leading up to the dates advertised for the show.
The Court also affirmed the exclusion of evidence of Ellisor’s prior authentic shows, noting that evidence of good conduct is not admissible to negate criminal intent.
The Court rejected a challenge to the sufficiency of the evidence, finding "ample" evidence from which the jury could have convicted. "‘Christmas From Around the World’ was billed as featuring 28 foreign ambassadors, Harry Potter characters, lavish Christmas decorations, raffle prizes, and even live reindeer. When the children showed up . . . the convention center was locked and bare."
Turning to the sentence, the Court rejected Ellisor’s argument that the loss amount was less than $30,000, that schools, not parents and children, should only be counted as victims, and that he had misrepresented that the University of Miami was a sponsor. The Court also affirmed the obstruction of justice enhancement based on Ellisor’s perjurious testimony at trial.
Finally, the Court affirmed the upward variance based on the "reprehensible" offense and prior similar misconduct.

Svete: Mail Fraud Instruction Defective

In U.S. v. Svete, No. 05-13809 (March 26, 2008), the Court reversed mail fraud convictions for two defendants based on an erroneous jury instruction, but otherwise rejected the defendants’ challenges to their convictions and sentences. The case arose out of an $80 million fraud on investors in life insurance benefits.
Citing U.S. v. Brown, 40 F.3d 1218 (11th Cir. 1994), the Court rejected challenges to the sufficiency of the evidence, pointing out that both defendants had testified in their defense, and that the jury was therefore free to believe of the opposite of their testimony.
The Court, however, agreed that the mail fraud jury instruction was defective because, though directly copied from the Pattern Jury Instruction, it failed to instruct, as the caselaw provided, that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." The inaccuracy impaired the defendants ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. The Court therefore reversed the mail fraud convictions.
The Court rejected Giglio-based challenges to the trial. A prosecution witness lied on the witness stand about not having been previously incarcerated. However, the Court found that the violation was not "material," because the defendant decided not to pursue this line of impeachment, and because other impeachment of the witness was successful, and because this witness’ testimony was otherwise corroborated by other witnesses.
Finally, the Court rejected the challenge to the determination of a loss over $80 million for sentencing purposes.

McNeil: Extraordinary Attorney Negligence Tolls AEDPA period

In Downs v. McNeil, No. 05-10210 (March 24, 2008), the Court held that equitable tolling may apply to a Florida death row inmate’s otherwise untimely federal habeas petition.
The Court recognized that a showing of "ordinary" attorney negligence would not suffice to equitably toll AEDPA’s statute of limitations. Here, however, Downs showed "extraordinary" negligence and even wilful misconduct, including an instance where an attorney lied to him about having filed a document that would have tolled the running of his limitations period. In view of the "extraordinary circumstances" presented, the Court remanded the case for an evidentiary hearing to determine whether equitable tolling applied.

Maupin: Florida nolo contendere w/ adjudication withheld counts as prior conviction

In United States v. Maupin, No. 07-03341 (March 24, 2008), the Court held that a child pornography offender’s prior Florida nolo contendere plea with adjudication withheld to Florida child pornography charges counted as a prior conviction for purposes of the sentencing enhancement under 18 U.S.C. § 2252(A)(b)(1) and (b)(2).
The statute provided for enhancements for prior convictions "under the laws of any State." Maupin argued that under Florida state law, a nolo contendere plea with adjudication withheld is not considered a conviction, and that this plea should therefore not count under the federal statute. The Court rejected this argument, holding that as it had held with respect to the federal drug statute, the meaning of the word "conviction" has a federal meaning, unless Congress specifically provides otherwise. Under federal law, a nolo contendere plea with adjudication withheld counts as a prior conviction. Thus, Maupin’s prior nolo contendere plea with adjudication withheld counted as a prior conviction for federal sentencing purposes. The Court therefore affirmed the 480-month sentence.

Devine: No further duty to consult about appeal

In Devine v. U.S., No. 07-11206 (March 20, 2008), the Court held that defense counsel was not ineffective for failing to file a notice of appeal.
The defendant pled guilty. The plea was valid. His plea included an appeal waiver. The waiver provided that the only issue he could appeal was the legality of his sentence. The low-end Guideline range sentence was legal.
The defendant claimed that counsel failed to fully inform him about the advantages and disadvantages of an appeal. The Court assumed arguendo that counsel did not fully discuss the advantages and disadvantages of an appeal, but still found no ineffective assistance of counsel. First, the factual record below showed that the defendant did not reasonably demonstrate to counsel that he was interested in appealing. Second, no rational defendant would want to appeal in these circumstances. Thus, counsel had no duty to consult further with the defendant about an appeal.

Burgest: Dual Sovereignty Precludes Suppression

In U.S. v. Burgest, No. 06-11351 (March 13, 2008), the Court rejected the defendant’s argument that statements he gave to federal investigators should be suppressed, because his right to counsel had attached in State criminal proceedings for the same drug offense, and the statements were obtained in violation of his right to counsel.
The Court recognized that the right to counsel had attached on the State charges. However, the right to counsel is offense specific, here to the State charge. The federal offenses were distinct. The Court relied on the "dual sovereignty rule," and held that the State right to counsel did not attach to the federal charges.

Stratton: Kimbrough remand

In U.S. v. Stratton, No. 06-10080 (March 13, 2008), the Court remanded a case for resentencing on Kimbrough grounds. The Court noted that the defendant had preserved the Kimbrough issue by challenging the crack/powder disparity in his appeal. Further, the district court at sentencing specifically rejected Stratton’s argument that it had the authority to consider the crack/powder disparity as a basis for a sentence reduction.

Lawhorn: Habeas relief granted on ineffectiveness grounds

In Lawhorn v. Allen, No. 04-11711 (March 11, 2008), the Court (Barkett, Wilson, Cox), affirmed a district court’s grant of habeas relief to an Alabama death row inmate, on ineffective assistance of counsel grounds.
The district court had ruled that Lawhorn was entitled to habeas relief on the ground that a confession that he gave was the product of an unlawfully long five-day detention without access to counsel. The Court pointed out, however, that the state courts had found that Lawhorn’s confession was voluntary, based on the fact that he was twice given his Miranda warning. This finding was entitled to deference.
The Court found that counsel was ineffective in waiving the giving of a closing argument during the penalty phase of the proceedings. Counsel had waived closing argument based on a misunderstanding of the rules – he thought his waiver would preclude the prosecution from making rebuttal closing. The prosecution was in fact permitted to make a rebuttal closing. The fact that counsel misunderstood the law precluded a finding that he made a sound "strategic" decision. In addition, Lawhorn was prejudiced by the failure to give a closing argument, because he had a good argument that he was a victim of "domination" by the person who made him commit the murder.

Gordon: Counsel not ineffective in failure to insist on allocution

In Gordon v. U.S., No. 05-16703 (March 7, 2008), the Court held that the defendant did not establish ineffective assistance of counsel. Gordon claimed that his counsel was ineffective for failing to object to the district court’s failure to address Gordon personally at sentencing. The Court held that even though such a failure can constitute "plain error" on direct appeal, it would not presume prejudice to the defendant in a § 2255 context. Here, the defendant did not establish prejudice.
The Court also rejected Gordon’s request for an evidentiary hearing into his ineffective assistance of counsel claim. The Court noted that it could conceive of reasonable motivations for counsel’s failure to insist on the Gordon’s right to speak up at sentencing, to wit, Gordon’s remarks "might lead the court to consider [him] even less honest than it already considered him."

Michel: 2255 motion unsigned but timely

In Michel v. U.S., No. 06-13982 (March 11, 2008), the Court held that even though an inmate initially filed an unsigned § 2255 motion, and only later filed a signed motion – after the running of the statute of limitations – the timeliness of the initial unsigned prevented his motion from being dismissed on untimeliness grounds.
The Court noted that the Rules Governing § 2255 proceedings were specifically amended to provide that a clerk should file, instead of reject, an unsigned § 2255 motion. This amendment was not in effect at the time Michel filed his motions, but it was in effect at the time the district court dismissed his motion – which was the relevant time period. The Court also noted that the Rules Governing § 2255 proceedings trumped the Federal Rules of Civil Procedure, when these two differ, and the district court therefore erred in relying on Fed. R. Civ. P. 11 in dismissing Michel’s petition.

Aviles: Withdrawal determines which Guideline manual to apply in "constant" conspiracies

In U.S. v. Aviles, No. 05-14446 (March 4, 2008), the Court, on a government appeal, reversed the district court for possibly using the wrong Guidelines manual at sentencing.
A sentencing court should apply the Guidelines manual in effect at the time of sentencing, unless use of this manual would violate the Ex Post Facto Clause (because the punishment increased after the defendant committed the offense), in which case it should use the manual in effect at the time the crime was committed. This rule can raise issues in conspiracy cases, where the crime continues over time, somewhat indefinitely. Was the defendant still involved in the conspiracy at the time of the later manual? Or did he withdraw? Can the reasonably foreseeable acts of his co-conspirators extend the conspiracy, even if he withdrew, since these acts are part of the defendant’s "relevant conduct"? Are the acts of a co-conspirator reasonably foreseeable when the conspiracy itself is sporadic?
The Court held that only when a conspiracy is "sporadic" can the cessation of one defendant’s participation cut-off the time for applying a new Guidelines manual. When (as here) a conspiracy is constant and consistent, then only withdrawal from the conspiracy will avoid application of a new Guidelines manual (under ex post facto principles). Here, the district court failed to address the withdrawal question. The Court therefore remanded the case for consideration of when the defendants withdrew from the conspiracy.

Deverso: Mistake of Age not a 2252 defense

In U.S. v. Deverso, No. 06-16048 (March 5, 2008), the Court affirmed convictions for using a minor to engage in sexually explicit conduct outside the United States for the purpose of producing a visual depiction of such conduct within the United States.
The Court found that the birth certificate of a victim in the Philippines was adequately authenticated, as a foreign public document under FRE 902(3). Here, a government agent testified that he obtained the certificate from the Philippine National Census and Statistics Office and that he had the copy authenticated and certified at the United States Embassy in Manila. The document itself was accompanied by certificates from Embassy official verifying the document’s authenticity.
The Court rejected the defendant’s argument that he was entitled to a "mistake of age" jury instruction. The Court noted that the statute contained no element requiring the defendant to know the age of the victim, and added that the Constitution did not require such an element to be included in the statute.

Alexander: Fla. 3.800(c) motion does not toll AEDPA limitations

In Alexander v. Sec. Dep’t of Corrections, No. 06-12501 (March 3, 2008), vacating its prior opinion, the Court held that a motion under Florida Rule of Criminal Procedure 3.800(c) does not toll the AEDPA limitations period. Accordingly, the Court dismissed the Florida inmate’s § 2254 petition as untimely.
The Court noted that, unlike Fla. R. Crim. P. 3.850 motions, or even 3.800(a) motions, which challenge the legality of a judgment, a 3.800(c) motion merely invoked the leniency of the court and set forth no challenge of legal error. Consequently, this was not the type of State post-conviction application which tolled the AEDPA limitations period.

Dean: Accidental Discharge Still Triggers Higher Penalty

In U.S. v. Dean, No. 06-14918 (Feb. 20, 2008) (Hull, Pryor, Moore, KM, b.d.), the Court affirmed the conviction and sentences of defendants convicted as a result of an armed bank robbery which netted them $3,642.
Rejecting the challenge to a Hobbs Act conviction based on the government’s Confrontation Clause violation in proving up the fact of FDIC insurance, the Court held that no such proof was required. For Hobbs Act violations, unlike bank robbery, proof of FDIC insured status is not a required element of the offense.
The Court further rejected the argument that a sentence should not have been enhanced under 18 U.S.C. § 924(c)(1)(A)(iii) for "discharge" of a firearm, because here the discharge was "accidental." The Court noted that § 924(c) contains no separate intent element. Though noting a Circuit split on this point, the Court held that an accidental discharge sufficed to impose the higher penalty.
Finally, the Court rejected one defendant’s argument that the sentencing court improperly counted four separate prior convictions in the criminal history score, when they should have been treated as "related cases." The Court held that any error need not be addressed because the sentencing court stated that even if its calculation were wrong it would still impose the sentence it did, this time under its § 3553(a) sentencing discretion – and the Court found that such a sentence would have been "reasonable."

Fotopoulos: Not Ineffective Not to Challenge Inconsistent Theories

In Fotopoulos v. Secretary, Dep’t of Corrections, No. 07-11105 (Feb. 17, 2008), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the fact-finding that Fotopoulos’s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos’ guilty, one which emphasized his domination of his accomplice, and one which did not. The Court found that defense counsel’s testimony indicated that he made a reasonable strategic decision on how to address the inconsistent arguments of the State – and the district court should have deferred to the fact-finding by the State of Florida on this point. Finally, no prejudice to Fotopoulos occurred, as he acknowledged his "prime responsibility" for the murders.
The Court also rejected the district court’s conclusion that the State’s reliance on inconsistent theories violated Due Process. The Court noted that the Supreme Court of the United States had not squarely held that putting on inconsistent theories violated Due Process at the time of the State court decision affirming the death sentence. Consequently, under AEDPA, the State court judgment was not "clearly contrary" to Supreme Court precedent, and deserved deferrence.

De La Garza: No Plain Error in Gov't Violation of Plea Agreement

In U.S. v. De La Garza, No. 06-13396 (Feb. 15, 2008), the Court affirmed the conviction of a defendant who pled guilty to conspiracy to possess more than five kilos of cocaine with intent to distribute, in violation of the Marine Drug Law Enforcement Act ("MDLEA").
The Court first rejected the challenge to the guilty plea based on the defendant’s breach of the plea agreement. The Court agreed with De La Garza that the government breached the agreement when it argued that his credibility at sentencing was not "credible," when it had agreed in the plea to the very version of events to which De La Garza later testified. However, reviewing the issue for "plain error," the Court found no violation of De La Garza’ substantial rights, because the district court credited De La Garza’s testimony even as it imposed the sentence it did.
The Court also rejected De La Garza challenge to subject matter jurisdiction. The Court noted that the defendant, at the plea colloquy, admitted that his vessel was without nationality, and thus established the fact sufficient to establish subject matter jurisdiction.

Pugh: Five Years Probation Unreasonable for Child Pornography Possessor

In U.S. v. Pugh, No. 07-10183 (Jan. 31, 2008), in its first sentencing decision applying the Supreme Court’s recent Gall and Kimbrough holdings, the Court held that the district abused its discretionary by imposing a probationary sentence on a defendant convicted of possession of images of child pornography.
Despite a low-end recommended guideline range of 97 months, and supervised release, the district court sentenced Pugh to five years probation. The district court held two sentencing hearings, and concluded that Pugh had a low-risk of recidivism.
The Court faulted the sentencing court for relying on only one § 3553(a) sentencing factor – the history and characteristics of the defendant -- which suggested an unreasonable sentence because of the failure to consider "all" of the § 3553(a) factors. The Court faulted the sentencing court for not giving due emphasis to the fact that the some of the images were "grotesque," and for focusing on the defendant’s motivation, when his willfulness in committing the offense was undisputed.
Turning to the § 3553(a) factors, the Court found that the sentencing court had no adequately considered the "general deterrence," purpose of § 3553(a) – a factor particularly important in combating "the child pornography market." The Court also noted the "devastating" impact of child pornography on the children, and pointed out how Congress has progressively stiffened the penalties for child pornography. The district court’s sentence, therefore, "did not reflect the seriousness of the crime." The Court noted that the defendant himself was willing to submit to a lifetime of supervised release, a much greater period of supervision than five years of probation. This called into question whether adequate rehabilitation could be achieved.
The Court also noted that the sentence deviated sharply from the Guidelines sentence of 97 months at the low-end. This "major" departure was not supported by the sentencing court’s mere reliance on Pugh’s characteristics and motive. In addition, unlike the crack guidelines at issue in Kimbrough, the child pornography guidelines did not suffer from "criticisms." The Court also noted that its caselaw showed that offenders like Pugh typically receive much harsher sentences. Thus Pugh’s sentence created a disparity. The Court recognized that there might be cases where a non-custodial sentence would be reasonable for a child pornography offender, but this was not one of them.

Al-Arian: Promise not to Subpoena Must be Explicit in Plea Agreement

In U.S. v. Al-Arian, No. 06-16008 (Jan. 25, 2008), the Court held that when a plea agreement contains no agreement providing that a defendant is immune from a future grand jury subpoena, the plea agreement does not prevent the government from subpoenaing the defendant to testify before a grand jury.
The Court first addressed whether the appeal had become moot, because the district court judgment which had held Al-Arian in contempt for failure to comply with the subpoena, and pursuant to which he had been sentenced, had since been vacated. The Court noted that any time Al-Arian had served for the contempt would be credited toward the sentence he was serving on the guilty plea if the Court held that the district court erred by holding him in contempt. Hence the case was not moot.
The Court also held that it had subject matter jurisdiction. The Court held that a § 2255 motion can be used to enforce promises made in a plea agreement.
Al-Arian’s plea agreement contained no terms regarding whether he agreed to cooperate with the government in the future, or whether he could be required to do so. Al-Arian noted that the government agreed to omit the standard cooperation provision from the plea agreement, and argued that this removal of language in effect immunized him from having to give any future testimony. The Court rejected this argument. Looking only to the language of the plea agreement itself, which stated that no other promises were made other than those contained therein, the Court held that the plea agreement did not prevent the government from issuing a subpoena.

Masferrer: Bank CEO fraud conviction affirmed

In U.S. v. Masferrer, No. 06-14223 (Jan. 22, 2008), the Court affirmed the conviction and sentence of a bank CEO convicted of bank and securities fraud. The fraud arose out of Masferrer’s attempt to conceal bad bank investments in Russian assets.
The Court rejected the challenge to the technical violation of the recusal rules when the case was directly reassigned to another judge. The Court noted the failure to show any potential bias.
The Court also rejected the argument that evidence of the subsequent (higher) value of the assets – subsequent to the fraud – should have been admitted in Masferrer’s defense. The Court noted that the relevant time period was Masferrer’s belief and intent at the time of the fraud, not afterward.
Turning to sentencing, the Court rejected Masferrer’s challenge to the use of 2001 Guidelines, pointing out that these Guidelines predated the completion of the conspiracy and therefore presented no Ex Post Facto issue. The Court also rejected Masferrer’s challenge to the calculation of a loss between $20 and $40 million. The Court rejected the argument that $ 22 million should not have been included as a loss to the bank, because they represented Russian assets that were worthless before the fraud occurred, and the bank would have suffered that unrealized loss, and, in fact, did not do so as a result of his fraudulent conduct. "Masferrer may not have caused the Russian assets to decline in value, but his criminal activity did cause them to be sold when they were in fact worthless, and consequently, caused the $22 million to be realized by the bank."

Flint: Shelton Not Extended

In Flint v. Jordan, No. 06-11897 (Jan. 22, 2008), the Court held that a § 2255 petition was untimely, even though the prior state conviction which the defendant challenged had been obtained without the assistance of counsel. The Court noted that the Supreme Court’s decision in Alabama v. Shelton, 535 U.S. 654 (2002) held that a "suspended sentence" that may end up in the deprivation of a person’s liberty may not be imposed if the defendant does not receive the assistance of counsel. Here, Flint challenged a conviction which resulted in a sentence of probation, not one which resulted in a suspended sentence. Thus, Flint was asking for an "extension" of Shelton, not a direct application of it – and he could not therefore claim that Shelton was retroactively applicable, and avoid the AEDPA bar on his untimely § 2255 motion.

Johnson: State extension of time does not create federal equitable tolling

In Johnson v. Fla. Dep’t of Corrections, No. 07-12115 (Jan. 17, 2008), the Court held that a Florida death row’s federal habeas petition was untimely.
The state inmate claimed that there was a delay in the appointment of his post-conviction lawyer in Florida state court. The Court held that this was not an excuse for untimeliness because prisoners in capital cases have no constitutional right to post-conviction counsel. The Court also rejected the claim that the unavailability of requested documents was an impediment to the § 2254 proceeding. Finally, the court found the "equitable tolling" doctrine inapplicable, because, even though Johnson was granted an extension of time to file for state post-conviction relief, this did not affect the timeliness of his federal petition.

Dorsey: Failure to File 5K1.1 can be unconstitutional

In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government’s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court’s downward departure based on the defendant’s cooperation, independent of a government motion.
The Court stated that unconstitutional vindictiveness could be established either by showing facts that gave rise to a presumption of vindictiveness, or by offering evidence of a prosecutor’s actual vindictiveness. Here, the government stated that it did not file a 5K1.1 because Dorsey’s assistance was not substantial and because he started dealing drugs, again. This overcame the presumption of vindictiveness. On remand, therefore, Dorsey would have to show "actual" vindictiveness. This showing is "exceedingly difficult." Dorsey would have to present evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government were pretextual.

Brown: Letters to parole board don't toll AEDPA

In Brown v. Barrow, No. 06-11004 (Jan. 11, 2008), the Court held that a Georgia inmate’s federal habeas petition challenging a denial of parole was time-barred by AEDPA’s one-year statute of limitations, when it was filed seven years later. The Court rejected the argument that the inmate’s letters to the parole board tolled the limitations period. The Court noted that Georgia has long provided that the sole means to attack a denial of parole was to file a writ of mandamus in state court, and Brown did not do this sufficiently early to avoid the one-year time-bar.

Snipes: No interlocutory appeal of venue

In U.S. v. Snipes, No. 08-10114 (Jan. 8, 2008), the Court dismissed a defendant’s interlocutory appeal. The defendant sought to appeal, prior to trial, the venue in his case. The Court noted that an order pertaining to venue is effectively reviewable after entry of judgment, citing U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006). Venue claims are unlike cases involving the right not to be subjected to double jeopardy and similar rights which would be lost by going to trial.

Palma: Facts Did not Support "Innocent Transitory Possession" Defense

In U.S. v. Palma, No. 06-14884 (Jan. 4, 2008), the Court rejected the defendant’s claim that, at his trial for being a felon in possession of a firearm and ammunition, the district court should have instructed the jury that a "transitory or temporary innocent possession" would be a defense to the charge. Without addressing whether this defense was valid generally, the Court noted that in Palma’s case the evidence that he entered a gun shop (with his then-girlfriend) twice, picked up the firearm, referred to it as "my gun," and requested, purchased and carried away ammunition for the firearm, did not support an "innocent transitory possession" instruction.

McBride: No Clear Error in 84-month sentence for child pornography distributor

In U.S. v. McBride, No. 06-16544 (Dec. 28, 2007) (2-1) (Dubina, J., dissenting), on a government appeal, the Court affirmed an 84-month sentence – below the 151-188 months guideline range – and a ten-year term of supervised release – below the Guideline recommended life term – for a defendant convicted of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B).
The Court rejected the government’s claim that the sentence was substantively unreasonable. The Court noted that it would reverse a sentence only if left with the definite and firm conviction that a clear error occurred in weighing the § 3553(a) factors. The Court cited the length of the 84 month sentence, as well as the district court’s reliance on the defendant’s history of abuse as a child, as bases for affirming the sentence.

King: No Reasonable Expectation of Privacy in Shared Computer Files

In U.S. v. King, No. 07-11808 (Dec. 14, 2007), the Court rejected Fourth Amendment challenges to a computer search of a defendant convicted of possessing child pornography, and, ruling against the government’s sentencing appeal, affirmed the district court’s ruling that King’s contemporaneous conviction for transporting child pornography did not count as a "prior conviction" for the purpose of imposing a mandatory ten years’ sentence.
The defendant’s computer flies at an army base were "shared" over the entire base network, and everyone on the network had access to all his files and could observe them. Thus, the search of his computer was akin to a search of the entire network. The contents of his computer were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public, and King therefore had no reasonable expectation of privacy in them.
Turning to the sentencing issue, the Court noted that the child pornography statute provides for a ten-year mandatory minimum if the defendant has a "prior conviction under this chapter." King’s convictions for possessing and for transporting child pornography were entered at the same time. The Court concluded therefore that the transporting conviction did not qualify as a "prior" conviction – distinguishing Deal v. U.S..

Straub: No Subject Matter Jurisdiction needed for Criminal Contempt

In U.S. v. Straub, No. 06-14354 (Nov. 29, 2007), the Court affirmed the criminal contempt conviction of a defendant who violated a court order to not be present during the removal of property from specific premises.
The defendant claimed that the district court lacked jurisdiction to hold him in criminal contempt, because the court later determined that it lacked subject matter jurisdiction over the case. Rejecting this argument, the Court analogized criminal contempt to sanctions under Rule 11 of the Federal Rules of Civil Procedure – which can be imposed regardless of whether a court lacks subject matter jurisdiction. Willy v. Coastal Corp., 503 U.S. 131 (1992). The Court distinguished contrary dicta in its caselaw as "inapposite."
The Court also concluded that the order that Straub was charged with violating was "reasonably specific," and further rejected Straub’s claim that his conduct was not "willful."

Dohan: No Improper Vouching

In U.S. v. Dohan, No. 06-14320 (Nov. 28, 2007), the Court affirmed the conviction of a defendant charged with fraud and money-laundering.
Reviewing for "plain error," the Court rejected the argument that the government should have corrected a cooperating witness testimony that he was testifying of his own volition, when he was in fact still subject to supervised release. The Court noted that the issue involved the witness’ beliefs, and that the witness had been subject to vigorous cross-examination.
The Court also rejected the argument that the government improperly vouched for credibility of the witness’ credibility by suggesting that he had been "checked" by the prosecutor, and also by the judge earlier in reducing the witness’ sentence for giving substantial assistance. The Court found no error and no prejudice. The Court also found no error in the witness’ testimony that he was a "moral, Christian man."
Finally, the Court rejected the argument that the district court erred in giving a "specific intent" jury instruction, as provided in the Eleventh Circuit Model Jury Instructions, as being the mens rea of the laundering offense. The Court noted that its own caselaw no longer required specific intent, but mere knowing and voluntary participation in the conspiracy. The caselaw trumped the old Model Instruction.

Foley: Sentencing Court abdicated responsibility

In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.
The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes. The Court noted that forfeiture and loss are distinct, and require distinct calculations. Loss takes account of "relevant conduct." The sentencing court therefore "abdicated its responsibility" to make independent Guideline findings.
The Court also found that the district court erred, when calculating the number of victims, in relying on the number of persons who had responded to a probation office questionnaire. The Court noted that these responses did not "establish how many people sustained the loss."
The Court further found that the district court erred when it abdicated its responsibility to determine whether the defendant obstructed justice.
The Court noted that these cumulative errors were not harmless, since they resulted in a sentence 250 months below the bottom of the otherwise potentially applicable Guidelines range – a factor the district court must still consider.
The Court rejected all of Foley’s arguments on cross-appeal. The Court noted that the restitution statute now defined a "victim" more broadly than before, therefore making Foley liable to "any victim" of his fraud scheme. The Court rejected all of Foley’s remaining arguments as meritless.

Hurtado: Misuse of Identification Does not require theft

In U.S. v. Hurtado, No. 07-11138 (Nov. 21, 2007), the Court affirmed the conviction of a defendant convicted of unlawfully using another person’s identification, in violation of 18 U.S.C. § 1028A(a)(1).
The Court rejected the argument that the conviction should be vacated because proof that the defendant "stole" the identification of another, and proof that the defendant knew that the identification was of an "actual person," were elements of the offense, which the government failed to prove. The Court explained that the statute criminalizes use of identification "without lawful authority," and this definition encompasses situations other than theft of the identification. The Court further explained that knowledge of that there is an actual person is not an element of the offense, because this is not required to avoid convicting the defendant of non-culpable conduct.

Drury: Denial of rehearing not AEDPA limitations start point

In Drury v. U.S., No. 07-12130 (Nov. 13, 2007), the Court held that, for purposes of determining the starting point for AEDPA’s one-year statute of limitations for § 2255 claims, the period begins to run when the Supreme Court denies certiorari, not thereafter, when the Supreme Court denies a motion to rehear the denial of certiorari. The Court joined other circuits to have so held, and noted that under the Supreme Court rules, a motion to rehear the denial of certiorari does not suspend the order of denial.

Davis v. Jones: Appearance of Impartiality not required by due process

In Davis v. Jones, No. 06-15530 (Nov. 8, 2007), the Court denied habeas relief to an Alabama inmate who claimed that the fact that the State’s attorney was the brother of the Alabama judge who presided over certain pre-trial proceedings created an appearance of impartiality that violated Due Process.
The Court noted that, under Supreme Court caselaw, only actual bias, not the appearance of bias, rises to a Due Process violation. Although the federal recusal rules would have required recusal in these circumstances, Due Process did not so require. Hence, the Alabama proceedings did not violate Due Process.

Jackson: Physical evidence resulting from un-Mirandized statement

In U.S. v. Jackson, No. 06-15186 (Nov. 9, 2007), the Court affirmed the denial of a Miranda-based motion to suppress.
The defendant gave an un-Mirandized statement to police, as a result of which the police found a firearm and ammunition in his home. The statement itself was voluntary, and the defendant was not seeking to suppress the statement, but the fruit of the search based on the statement. Citing the narrowest grounds for the decision in United States v. Patane, 542 U.S. 630 (2004), the Court held that a Miranda violation that produces a voluntary statement does not entail suppression of the physical evidence found as a result of the un-Mirandized statement.

Mintmire: Lawyer Obstruction Conviction Upheld

In U.S. v. Mintmire, No. 06-11212 (Nov. 13, 2007), the Court affirmed the convictions of a Florida lawyer charged with attempting to obstruct a grand jury investigation into a stock sale.
The Court rejected a challenge to the sufficiency of the evidence. The Court found ample evidence that Mintmire had attempted to coach a witness to give false testimony before the grand jury.
The Court also rejected a challenge to the jury instructions, finding that the trial court properly instructed the jury on the affirmative defense that Mintmire was acting as a lawyer and giving bona fide legal representation at the time he committed the charged conduct.
Finally, the Court found no prejudicial spillover in the fact that Mintmire was prosecuted in a single trial for two separate obstruction counts.

Mangaroo: Probation Plain Error for 924(c) sentence

In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies.
The Court noted that at the conclusion of sentencing, the government only made generalized objections, such as "the government objects to the sentence." This did not suffice to preserve for appeal the error in the sentences, namely the fact that the district court imposed sentences of probation when the statute for the offense of conviction, 18 U.S.C. § 924(c), expressly excludes probation as a sentencing option. However, because this error was plain from the language of the statute, the error constituted "plain error," and grounds, therefore, for vacating the sentences.
The Court pointed out that at the original sentencing, the district court did not cite any assistance-related factors to justify its downward departures. The Court agreed with the government that, at resentencing, the downward departures based on the defendants’ cooperation must be limited to the nature of the "substantial assistance" they provided.

Moore: Rule 29 Motion in VA theft

In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court’s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf

Robison: CWA Convictions Reversed

In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.
The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v. U.S., 126 S.Ct. 2208 (2006). Though recognizing some confusion in the law regarding Rapanos’ definition of "navigable waters," the Court held that it involved a "significant nexus" between the waters affected by a defendant’s pollution and waters that are in fact "navigable." The instruction failed to convey this concept, and this error was not harmless, because there was no evidence that the creek into which the defendants dumped pollutants caused harm to the river into which the creek flowed.
Turning to the false statement conviction, a specific intent crime, the Court noted that the statement in question merely certified that reports had been prepared under the person’s supervision. This representation was true, and it did not establish that the person making the statement knew that the reports were false, or vouched for the accuracy of the reports. Hence the evidence was insufficient to sustain the false statement conviction.

Brown: Union officials convictions upheld

In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members.
The Court rejected the argument that there was insufficient evidence to support the Taft-Hartley counts. The defendants argued that employees of a firm that made payments to them belonged to another union, and therefore could not be considered persons who might be "admitted to membership" in defendants’ firm, a requirement for Taft-Hartley liability. But the Court found that because these employees could have been solicited to join the defendants’ union despite this roadblock.
Declining to follow a Second Circuit precedent, the Court found that despite the infirmity of certain predicate acts of RICO conspiracy, the jury’s general verdict was valid, because the "continuity: element could be inferred from the 2 valid predicate acts which the jury found. This continuity was provided by the fraudulent vouchers for reimbursement that were submitted over a six year period.
The Court also sustained the RICO conspiracy conviction, finding that evidence of Brown’s concealment of his receipt of funds showed the agreement on the overall objective of the conspiracy.
The Court further sustained the conviction for depriving the union of "honest services." The Court found that the payments Brown received, payments he concealed from the union, supported this count of conviction.
The Court found that, even assuming the district court erroneously failed to instruct the jury that the existence of employees, not supervisors, in a firm from which the defendant receives prohibited payments, were one element the Taft-Hartley violations, the error was harmless – the jury would still have convicted.
The Court rejected the argument that Brown should have been granted a severance from his assistant. Brown claimed that, had they been tried separately, he would have called his assistant as an exculpatory witness. The Court found no "compelling prejudice" in the denial of the severance.
Turning to the assistant’s appeal, the Court rejected the argument that a RICO "enterprise" can also be the victim of the RICO offense. The "enterprise" need not be the instrument "through which" the violation occurs. It can be the victim.
The Court found "ample evidence" that the assistant was aware of the overall purpose of the conspiracy, noting her "extraordinary control" over the union books, and her ability to enrich herself.
The Court upheld a jury instruction which stated that a "lower level" participant in an enterprise could be held criminally responsible for a RICO offense, finding it in accord with Circuit precedent.
Finally, turning to sentencing, the Court upheld an order of forfeiture in excess of $500,000. The Court upheld finding the assistant jointly liable for the total amount of the loss. Though this amount was not reasonably foreseeable, it was valid. The Court declined to follow contrary holdings in other circuits, noting the "punitive" character of forfeiture. The Court again cited the punitive character of forfeitures in declining to credit the assistant for moneys that she had returned to the union. The Court also rejected the argument that the forfeiture was unconstitutionally excessive.http://www.ca11.uscourts.gov/opinions/ops/200511137.pdf

Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive

In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There’s no need of sending any notes that you can’t agree, because you are going to stay here for a long time." Citing Jenkins v. United States, 380 U.S. 445 (1965), the Court held that the instructions were "impermissibly coercive."
The Court noted that there was sufficient evidence to convict, and therefore remanded the case for a new trial.

Delancy: Consensual search not fruit of poisonous tree

In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant’s girlfriend’s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual.
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."

Khanani: "Proceeds" are not proceeds of the labor

In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court’s entry of a judgment of acquittal on the money laundering counts. The case arose out of the defendant’s employment of illegal aliens in their jeans retail stores.
The Court found no error in the district court’s refusal to instruct the jury that "mere employment" of illegal aliens would not suffice to establish guilt of harboring illegal aliens. The Court found that the instructions that were given were already adequate to describe the offense, and that no further instruction was required.
The Court also rejected the argument that the search of the computers at the defendants businesses violated the Fourth Amendment. The Court noted that while the search warrant affidavit did not indicate that computer-generated forms were involved, a "common sense" interpretation of the affidavit gave rise to this inference.
The Court also found no abuse of discretion in denying a motion for a mistrial based on a juror’s statement that a person resembling the defendant had "locked eyes" with her and felt a "presence of danger." The Court noted that the district court investigated the matter and found no prejudice to the defendant.
The Court held that it was not error to admit, on the government’s cross-examination, a co-defendant’s testimony that the defendant's involvement in the offense "would not surprise him" . The Court noted that this question was relevant in light of the co-defendant’s direct testimony, and was not given for the truth of the matter but for impeachment purposes. Further, counsel had not sought an instruction limiting the statement to being admissible for impeachment purposes, in accordance with FRE 105, and thus waived this issue.
Finally, the Court, ruling against the government’s appeal, rejected the argument that, for purposes of determining whether "proceeds" of specified unlawful activity were laundered, the cost savings to the defendants from using illegal aliens in their retail jean sales could be considered "proceeds." The Court stated that it is "decidedly unnatural to say that the moneys one has received from the sale of a good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor used to produce the goods."
http://www.ca11.uscourts.gov/opinions/ops/200511689.pdf

Ramirez: Second 851 Notice Unnecessary

In U.S. v. Ramirez, No. 06-16404 (Sept. 11, 2007), the Court held that when the government, after filing an original notice of intent to seek a mandatory life sentence, in accordance with 21 U.S.C. § 851(a)(1), thereafter filed a new information, but neglected to file a new § 851 notice, the omission did not prevent the imposition of a life-sentence.
The Court noted that in U.S. v. Thompson, 473 F.3d 1137 (11th Cir. 2006), the Court had held that an original § 851 notice sufficed, notwithstanding the failure to file a new notice after the government had filed a superseding indictment. Here, the government filed a new information, under a new case number. The Court held that, as in Thompson, "a second notice was unnecessary." The Court pointed out that Ramirez had notice of the government’s intent to seek the enhanced sentence. The Court cautioned that it might reach a different result if the § 851 notice related to a case "dismissed long ago."

Fields: Knowledge of out of state residency of child is essential element

In U.S. v. Fields, No. 06-13784 (Sept. 21, 2007), the Court reversed the conviction of a defendant convicted of willfully failing to pay past due child support, in violation of 18 U.S.C. § 228(a)(1).
The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state. The defendant claimed that since his ex-wife, without his knowledge, moved with their child out of Florida, he, a Florida resident, lacked the willful mens rea of the statute as to the out-of-state status of his child. The district court rejected this argument, finding that the out-of-state status of the child was a mere jurisdictional hook, as to which no mental state was required. Reversing, the Court pointed out that since child support obligations always arose out of state court judgments, the federal duty to pay child support, violation of which can give rise to federal criminal liability, can only arise when the child resides out of state. Federal criminal statutes generally require proof of the defendant’s knowledge of the facts that give rise to a violation of the law, and here one of the facts was the child’s out-of-state residence. The removal of the child by the mother out of state is what made the defendant’s failure to pay child support criminal under federal law, and this event was hidden from the father by the mother. Thus, there was no "willful" violation of the statute. The Court therefore reversed the conviction.

Valdes: No reasons for extraordinary variance

In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.
The Court noted that if the district court intended to apply an upward departure under USSG 4A1.3, if failed to follow the requisite procedures, namely it failed to first consider the next criminal history category and make a determination whether its range was appropriate. The Court further noted that if the district court intended to rely on 18 U.S.C. § 3553(a) to vary upward from the Guidelines, the reasons discussed were inadequate to support an extraordinary variance. The Court noted that nothing extraordinary about the case justified the extreme variance, pointing out that even though the offense of conviction involved counterfeiting checks from the clerk of the District Court, this office was no different from any other fraud victim.

Otero: Counsel not ineffective for failing to appeal

In U.S. v. Otero, No. 06-15791 (Sept. 17, 2007), the Court held that Otero’s lawyer had no constitutional duty under the criteria of Roe v. Flores-Ortega, 528 U.S. 470 (2000) to consult Otero about an appeal, and therefore denied Otero’s § 2255 motion based on counsel’s failure to file an appeal.
Otero pled guilty to drug trafficking charges. He waived his right of appeal in his plea agreement. Consequently, he had no non-frivolous issues for appeal. Hence, no rational defendant in Otero’s position would have sought to appeal, and counsel therefore did not render ineffective assistance.
The Court also rejected Otero’s claim that he specifically instructed his lawyer to file an appeal. The Court adopted the district court’s credibility determinations that Otero never indicated a desire to appeal.

Marzurky: Cap on Supervised Release

In U.S. v. Mazarky, No. 06-13316 (Sept. 12, 2007), the Court, adopting the view of all other Circuits to have construed the statute, held that a new term of supervised release imposed after two successive revocations of supervised release must be reduced from the statutory maximum by the aggregate length of imprisonment imposed in both revocations. The Court therefore vacated the sentence and remanded for resentencing.
The statutory maximum term of supervised release for Mazarky’s original offense of conviction was three years. After his first revocation of supervised release he was sentenced to 10 months imprisonment. After his second revocation of supervised release he was sentenced to 8 months imprisonment – and the district court also imposed a 28-month term of supervised release. Mazarky argued that the 28-month term was invalid, because the statute required that he be given credit for the aggregate 18 months prison sentence off the 36-month cap, resulting in a maximum of 18 months of supervised release. The Court agreed, noting the interpretations of the applicable statutes, 18 U.S.C. §§3583(e)(3) & (h), by other Circuits.
The Court rejected the government’s argument, first raised in this appeal, that the statutory supervised release maximum was greater than three years, because the drug trafficking offense of conviction carried a statutory maximum greater than the three years provided in the supervised release statute. The Court noted that Mazarky’s guilty plea was based on a three-year maximum for supervised release, and "in order to preserve notice to the defendant" it declined to consider this new argument.

Maturin: 15-year old conviction counts as aggravated felony

In U.S. v. Maturin, No. 07-10481 (Sept. 11, 2007), the Court held that a more than 15-year old conviction for drug trafficking qualified as an "aggravated felony" and therefore subjected Maturin to a 17-month sentence enhancement for his conviction for illegally reentering the United States after deportation.
The Court held that the plain meaning of the statutory phrase that limited convictions more than 15 years old from qualifying as aggravated felonies referred only to foreign, not domestic, convictions. The Court rejected Maturin’s contrary interpretation.

Fleet: Federal Forfeiture Preempts Florida Homestead

In U.S. v. Fleet, No. 06-12454 (Sept. 5, 2007), the Court held that the provision of the federal criminal forfeiture statute, 21 U.S.C. § 853(p), which authorizes the forfeiture of a criminal defendant’s substitute property in the event moneys traceable to the crime cannot be located or have been transferred to a third-party, preempts Florida’s homestead exemption and property law governing tenancies by the entireties.
The Court recognized that unlike the general provision governing criminal forfeiture, which expressly preempts State law, the provision governing substitute property did not contain an express preemption provision. The Court noted, however, that the Supreme Court has stated that the inclusio unius est exclusio alterius logic does not apply to express/implied preemptions. The Court therefore turned to words of the forfeiture statute, which broadly authorized the courts to forfeit "any" substitute property. Further, the Court noted that its interpretation was consistent with the remedial purpose of forfeiture, which is to enforce the old adage that crime does not pay.