In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.
At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.
The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”
Wednesday, June 23, 2010
Tuesday, June 01, 2010
Lall: Defendant's Statements Involuntary: Suppressed
In U.S. v. Lall, No. 09-10794 (May 28, 2010), the Court held that a defendant did not make a voluntary waiver of his Miranda rights, and that his statements were involuntary. Because the government’s uses at trial of the statements and of the evidence derived from the statements were not harmless, the Court reversed the defendant’s conviction.
After giving Lall his Miranda warnings, a police detective told him that any information he shared with police would not be used to prosecute him. Lall then showed the detective the equipment he used to commit identity theft and explained how each device worked. Later, Lall was asked to come to the police station, and told again that he was not going to be charged “with any of this.” Lall gave another incriminating statement.
The Court held that, even if Lall was not in “custody” for Miranda purposes, the statements he gave were involuntary because the police “explicitly assured Lall that anything he said would not be used to prosecute him.”
Turning to the second confession at the police station, the Court rejected the government’s claim that Lall had waived his objection to its admission, noting that the district court’s ruling to exclude it was “enough to preserve the issue.” The Court held that the second confession was also the product of “improper promises of non-prosecution.”
The Court ruled that the identity theft equipment should have been suppressed, because the police “did not have the slightest clue” that this equipment was incriminating until Lall said so.
The Court found that the error in admitting the evidence at trial was not harmless, citing the prosecution’s own concession during closing argument to the jury: “Folks, if none this [physical evidence] were here, none of this, and if Lall’s statements were not before you, I would tend to agree with defense counsel [that it’s] not a real strong case for the government.”
After giving Lall his Miranda warnings, a police detective told him that any information he shared with police would not be used to prosecute him. Lall then showed the detective the equipment he used to commit identity theft and explained how each device worked. Later, Lall was asked to come to the police station, and told again that he was not going to be charged “with any of this.” Lall gave another incriminating statement.
The Court held that, even if Lall was not in “custody” for Miranda purposes, the statements he gave were involuntary because the police “explicitly assured Lall that anything he said would not be used to prosecute him.”
Turning to the second confession at the police station, the Court rejected the government’s claim that Lall had waived his objection to its admission, noting that the district court’s ruling to exclude it was “enough to preserve the issue.” The Court held that the second confession was also the product of “improper promises of non-prosecution.”
The Court ruled that the identity theft equipment should have been suppressed, because the police “did not have the slightest clue” that this equipment was incriminating until Lall said so.
The Court found that the error in admitting the evidence at trial was not harmless, citing the prosecution’s own concession during closing argument to the jury: “Folks, if none this [physical evidence] were here, none of this, and if Lall’s statements were not before you, I would tend to agree with defense counsel [that it’s] not a real strong case for the government.”
Friday, May 28, 2010
Cunningham: Apprendi does not apply to supervised release revocation proceedings
In U.S. v. Cunningham, No. 09-13989 (May 28, 2010), the Court rejected a constitutional challenge to 18 U.S.C. § 3583(e)(3), the statute that authorizes a district court to revoke a term of supervised release and impose a sentence for all or part of the term of supervised release.
Citing Apprendi, Cunningham argued that the judge’s imposition of a sentence based on a revocation of supervised release violated his right to jury trial. The Court pointed out that supervised release is treated as part of the penalty for the initial offense. The Court noted that a person facing revocation of supervised release has already been convicted of a crime. Joining all other Circuits to have considered the question, the Court held that a defendant is not entitled to a jury trial at a supervised release revocation proceeding.
Citing Apprendi, Cunningham argued that the judge’s imposition of a sentence based on a revocation of supervised release violated his right to jury trial. The Court pointed out that supervised release is treated as part of the penalty for the initial offense. The Court noted that a person facing revocation of supervised release has already been convicted of a crime. Joining all other Circuits to have considered the question, the Court held that a defendant is not entitled to a jury trial at a supervised release revocation proceeding.
Thomas v. Allen: Atkins Bars Execution of Mentally Retarded Offender
In Thomas v. Allen, No. 09-12869 (May 27, 2010), the Court affirmed the granting of habeas relief to an Alabama death row inmate based on a finding that he was mentally retarded and therefore ineligible for execution under Atkins v. Virginia.
The Court noted that Atkins is a new rule of constitutional law made retroactive to cases on collateral review, and therefore, contrary to the findings of the Alabama courts, could not be defaulted under state procedural rules.
Reviewing the numerous studies showing that Thomas’ IQ fell below the mental retardation threshold, and other evidence, the Court held that Alabama courts unreasonably applied Atkins when they found Thomas was not mentally retarded.
The Court noted that Atkins is a new rule of constitutional law made retroactive to cases on collateral review, and therefore, contrary to the findings of the Alabama courts, could not be defaulted under state procedural rules.
Reviewing the numerous studies showing that Thomas’ IQ fell below the mental retardation threshold, and other evidence, the Court held that Alabama courts unreasonably applied Atkins when they found Thomas was not mentally retarded.
Thursday, May 27, 2010
Boffil-Rivera: False Statement was Material
In U.S. v. Boffil-Rivera, No. 08-16098 (May 27, 2010), the Court rejected a sufficiency of the evidence challenge to a conviction for making a false statement of material fact in a matter within the jurisdiction of a government agency, in violation of 18 U.S.C. § 1001(a)(2).
Boffil-Rivera denied to federal immigration officials that he had anything to do with a gun that was found in the car in which he was a passenger. The Court found that there was sufficient evidence that this statement was false, that the denial was intended to mislead, and that it was material because, at the time, Boffil-Rivera was not permitted to possess a gun.
Boffil-Rivera denied to federal immigration officials that he had anything to do with a gun that was found in the car in which he was a passenger. The Court found that there was sufficient evidence that this statement was false, that the denial was intended to mislead, and that it was material because, at the time, Boffil-Rivera was not permitted to possess a gun.
Alfaro-Moncada: Ok to Border Search Cabin Without Reasonable Suspicion
In U.S. v. Alfaro-Moncada, No. 08-16442 (May 27, 2010), the Court held that a search of the cabin of a crew member of a foreign cargo vessel did not violate the Fourth Amendment, even though the Agricultural Enforcement Team that boarded the ship to inspect for prohibited agricultural materials had no reasonable suspicion regarding the contents of the cabin. The Court therefore affirmed the denial of a motion to suppress the child pornography DVDs that were found in the crew member’s cabin.
The Court noted that the search was a “border search” because the ship was docked after traveling three miles up the Miami River. The Court noted the heightened national interest in searching for agricultural contraband coming into the United States, citing the “extensive damage” caused by pests and diseases once they enter the country. The Court further stated that “any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country.”
The Court also rejected the argument that the admission of five still images of child pornography was unduly prejudicial, when Alfaro-Moncada had stipulated that the DVDs actually contained child pornography. The Court noted that the jury was shown only five images out of 4,650 on the DVDs.
The Court noted that the search was a “border search” because the ship was docked after traveling three miles up the Miami River. The Court noted the heightened national interest in searching for agricultural contraband coming into the United States, citing the “extensive damage” caused by pests and diseases once they enter the country. The Court further stated that “any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country.”
The Court also rejected the argument that the admission of five still images of child pornography was unduly prejudicial, when Alfaro-Moncada had stipulated that the DVDs actually contained child pornography. The Court noted that the jury was shown only five images out of 4,650 on the DVDs.
Wright: Community Control Revocation Counts Like Probation Revocation
In U.S. v. Wright, No. 09-12685 (May 26, 2010), the Court held that a Florida sentence of “community control” is “similar” to other forms of conditional release, like probation, and that a sentence for revocation of community control therefore counts for purposes of calculating criminal history points under USSG § 4A1.1(a). The Court noted the similarities between the purpose and operation of probation and community control.
The Court also rejected a constitutional challenge to 18 U.S.C. § 922(g), pointing out that the statute only requires a “minimal nexus” to interstate commerce, which was satisfied here because Wright’s firearms were manufactured outside Florida.
The Court also rejected a constitutional challenge to 18 U.S.C. § 922(g), pointing out that the statute only requires a “minimal nexus” to interstate commerce, which was satisfied here because Wright’s firearms were manufactured outside Florida.
Friday, May 21, 2010
Martinez: Court of Appeals Has Broad Power to Fashion Resentencing
In U.S. v. Martinez, No. 08-13846 (May 19, 2010), the Court, denying a motion for rehearing or rehearing en banc, the Court rejected the argument that its prior decision in U.S. v. Canty foreclosed the Court of Appeals, when it vacated a sentencing enhancement based on the defendant’s leadership role, to allow the government at resentencing to present new evidence in order to establish that the leadership enhancement was warranted.
The Court noted its broad appellate power under 28 U.S.C. § 2106. The Court further noted its precedent which in some cases when it reversed a sentence called for a de novo resentencing, while in other cases (as in Canty) providing for narrower relief. Thus, while in Canty it was appropriate to deny the government a “second bite at the battle” on resentencing because the government at the first sentencing had disclaimed reliance on other evidence, in Martinez’ cases, where defense counsel had not clearly objected to the leadership enhancement, it was fair on resentencing to allow the government to present new evidence regarding the defendant’s leadership role.
The Court noted its broad appellate power under 28 U.S.C. § 2106. The Court further noted its precedent which in some cases when it reversed a sentence called for a de novo resentencing, while in other cases (as in Canty) providing for narrower relief. Thus, while in Canty it was appropriate to deny the government a “second bite at the battle” on resentencing because the government at the first sentencing had disclaimed reliance on other evidence, in Martinez’ cases, where defense counsel had not clearly objected to the leadership enhancement, it was fair on resentencing to allow the government to present new evidence regarding the defendant’s leadership role.
Garcia: Defining Generic "Aggravated Assault"
In U.S. v. Garcia, No. 09-10534 (May 21, 2010), the Court rejected a statute of limitations challenge to an illegal re-entry conviction, but vacated a sentence because a prior Arizona aggravated assault conviction was incorrectly counted as a “crime of violence.”
Because the illegal re-entry statute provides no specific statute of limitations, the general five-year term applied to the charged offense. An illegal reentry offense is deemed complete, triggering the commencement of the five-year limitations period, when, with the exercise of diligence, law enforcement could have discovered the illegality of the defendant’s presence in the United States.
The Court rejected Garcia’s argument that law enforcement could have discovered his presence in the United States more than five years before the indictment, when his wife filed an application for his citizenship which disclosed his prior deportation. The Court found that immigration officials reasonably delayed an investigation of Garcia’s status until his application process was complete. The delay in the completion of the application process – which pushed the investigation and discovery of Garcia’s unlawful status within the limitations period – was attributable to incorrect information his wife had filled out. Hence, immigration officials were sufficiently diligent in investigating Garcia’s unlawful status.
Turning to sentencing, the Court rejected the government’s argument that it was unfeasible to define a generic offense of “aggravated assault,” and that any offense labeled “aggravated assault” should therefore qualify as a “crime of violence” for purposes the 16-level Guideline enhancement. The Court determined that the generic offense “involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” The Court found that Garcia’s prior Arizona offense was a “simple assault,” for which the only aggravating factor was the status of the victim: a law enforcement officer. The offense therefore did not qualify as a generic “aggravated assault” for Guideline purposes.
The Court further found that because recklessness was a sufficient mens rea to commit aggravated assault in Arizona, the offense did not qualify as a “crime of violence” because it did not involve the intentional use of physical force.
The Court therefore vacated the 16-level “crime of violence” enhancement.
Because the illegal re-entry statute provides no specific statute of limitations, the general five-year term applied to the charged offense. An illegal reentry offense is deemed complete, triggering the commencement of the five-year limitations period, when, with the exercise of diligence, law enforcement could have discovered the illegality of the defendant’s presence in the United States.
The Court rejected Garcia’s argument that law enforcement could have discovered his presence in the United States more than five years before the indictment, when his wife filed an application for his citizenship which disclosed his prior deportation. The Court found that immigration officials reasonably delayed an investigation of Garcia’s status until his application process was complete. The delay in the completion of the application process – which pushed the investigation and discovery of Garcia’s unlawful status within the limitations period – was attributable to incorrect information his wife had filled out. Hence, immigration officials were sufficiently diligent in investigating Garcia’s unlawful status.
Turning to sentencing, the Court rejected the government’s argument that it was unfeasible to define a generic offense of “aggravated assault,” and that any offense labeled “aggravated assault” should therefore qualify as a “crime of violence” for purposes the 16-level Guideline enhancement. The Court determined that the generic offense “involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” The Court found that Garcia’s prior Arizona offense was a “simple assault,” for which the only aggravating factor was the status of the victim: a law enforcement officer. The offense therefore did not qualify as a generic “aggravated assault” for Guideline purposes.
The Court further found that because recklessness was a sufficient mens rea to commit aggravated assault in Arizona, the offense did not qualify as a “crime of violence” because it did not involve the intentional use of physical force.
The Court therefore vacated the 16-level “crime of violence” enhancement.
Monday, May 17, 2010
Frazier: False statement is material to firearm sale
In U.S. v. Frazier, No. 08-11655 (May 14, 2010), the Court affirmed false statement firearm convictions, and reversed a sentence because it was incorrectly calculated.
Turning first to a jurisdictional question, the Court recognized that the defendant filed his notice after the expiration of the 10-day deadline for filing a notice of appeal. However, because the government voluntarily forfeited its objection to the untimeliness of the notice, the Court had jurisdiction.
The Court rejected the argument that the evidence was insufficient to sustain the false statement convictions. The defendant argued that the false statement relating to the purchaser of the firearm was immaterial, because neither the real purchaser, nor the straw purchaser of the firearm, was a convicted felon; both were eligible to purchase the firearm. The Court noted that while the lawfulness of the sale may depend on the identity of the purchaser, the identity of the purchaser remains material to the sale itself. Therefore, the false statements relating to the identity of the purchaser were material to the sale, regardless of whether the buyers were all eligible to punish a firearm.
The Court also found sufficient evidence to sustain a money laundering conviction. Although the facts did not establish a direct link between drug proceeds and moneys, there was ample circumstantial evidence from which an inference could be drawn that a connection existed.
Finally, the Court vacated the sentence on account of the district court miscalculation of the Guideline offense level.
Turning first to a jurisdictional question, the Court recognized that the defendant filed his notice after the expiration of the 10-day deadline for filing a notice of appeal. However, because the government voluntarily forfeited its objection to the untimeliness of the notice, the Court had jurisdiction.
The Court rejected the argument that the evidence was insufficient to sustain the false statement convictions. The defendant argued that the false statement relating to the purchaser of the firearm was immaterial, because neither the real purchaser, nor the straw purchaser of the firearm, was a convicted felon; both were eligible to purchase the firearm. The Court noted that while the lawfulness of the sale may depend on the identity of the purchaser, the identity of the purchaser remains material to the sale itself. Therefore, the false statements relating to the identity of the purchaser were material to the sale, regardless of whether the buyers were all eligible to punish a firearm.
The Court also found sufficient evidence to sustain a money laundering conviction. Although the facts did not establish a direct link between drug proceeds and moneys, there was ample circumstantial evidence from which an inference could be drawn that a connection existed.
Finally, the Court vacated the sentence on account of the district court miscalculation of the Guideline offense level.
Gomez-Castro: 1028(a)(1): Jury Can Use Its Common Sense
In U.S. v. Gomez-Castro, No. 09-12557 (May 13, 2010), the Court held that the government presented sufficient evidence to sustain a conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The Court rejected the argument that there was insufficient evidence to establish that Gomez-Castro knew that she had used the identity of a real person. Pointing out that such knowledge can be established with circumstantial evidence, the Court noted that the evidence included proof that Gomez-Castro paid $2,500 for a fake birth certificate and social security card, had tested their authenticity repeatedly before using them to obtain a passport, and that the jury could use its common sense to know that Gomez-Castro knew that the government used verification procedures to verify the identity she was stealing.
McNair: Alabama Sewer Bribery Convictions Upheld
In U.S. v. McNair, No. 07-11476 (May 12, 2010), in a 167-page opinion, the Court affirmed multiple bribery convictions of government officials and private contractors involved in sewer projects in Jefferson County, Alabama.
The Court rejected a challenge to the jury instructions’ failure to instruct that a bribery conviction requires a showing of a quid pro quo, i.e., that a specific thing was exchanged for a specific act. The Court noted that the bribery statute, 18 U.S.C. § 666, does not contain the expression “quid pro quo. Further, the statute’s requirement of a “corrupt” mens rea suffices to circumscribe criminal liability, as it requires a dishonest goal, or unlawful means. Because the statute applies not only to specific actual acts, but to possible future acts, “the quo need not be specific at the time of the quid.” An instruction that requires a “corrupt” state of mind sufficiently excludes the possibility that the exchange was legitimately designed to foster “goodwill.”
The Court rejected sufficiency of the evidence challenges to the convictions, pointing out that the contractors’ provision of free construction work on the homes and offices of the government officials coincided with the award of sewer contracts, and noting the pains to which the defendants went to cover up their conduct.
The Court also rejected a challenge, under Fed. R. Evid. 404(b) to the admission against one government official of evidence of bribery by the same contractor of another government official. The Court pointed out that evidence of multiple bribery recipients undercut the defense that the payments were made to one out of “friendship.”
The Court rejected the argument that the prosecution knowingly put on false testimony of a government witness, finding that the testimony may not have been false, and that the government did not know it was false – and that even if knowingly false, it did not affect the jury’s evaluation of the credibility of the witness.
As to a single count of conspiracy under 18 U.S.C. § 371, the Court overturned a conviction it was barred by the statute of limitations. The count was based on non-conspirator’s receipt of money from another non-conspirator, pursuant to an agreement between conspirators that was made at a time outside the statute of limitations. Although the receipt of illicit payment can qualify as an overt act for purposes of a conspiracy, and although this receipt of payment occurred within the statute of limitations, it involved non-conspirators, and there was no evidence that the conspirators who agreed on the payment knew the timing of the payment.
The Court rejected the argument that Wharton’s Rule, which precludes punishment for a substantive offense and of a conspiracy offense if the substantive offense itself requires the participation of two persons. The Court found no Congressional intent to preclude cumulative punishment for bribery and for conspiracy to commit bribery.
Turning to sentencing, the Court affirmed a $851,927 restitution, an amount which corresponded to the bribes paid. The Court rejected the argument that the government failed to show that the County lost this amount, noting the betrayal of the public trust, and that companies expect to recoup bribes in the cost of doing business. The Court recognized that because one defendant was 84 years old, the record did not show that he could repay the restitution in his lifetime; however, the Court found no plain error, because the County was entitled to recover restitution payments “for as long as they are made.”
The Court vacated the imposition of a $250,000 fine on one defendant, finding it was unable to glean from the record the basis for this specific amount. However, the Court affirmed the imposition of a $19.4 million fine on another defendant, noting that it was well below the Guideline range.
The Court rejected a challenge to the jury instructions’ failure to instruct that a bribery conviction requires a showing of a quid pro quo, i.e., that a specific thing was exchanged for a specific act. The Court noted that the bribery statute, 18 U.S.C. § 666, does not contain the expression “quid pro quo. Further, the statute’s requirement of a “corrupt” mens rea suffices to circumscribe criminal liability, as it requires a dishonest goal, or unlawful means. Because the statute applies not only to specific actual acts, but to possible future acts, “the quo need not be specific at the time of the quid.” An instruction that requires a “corrupt” state of mind sufficiently excludes the possibility that the exchange was legitimately designed to foster “goodwill.”
The Court rejected sufficiency of the evidence challenges to the convictions, pointing out that the contractors’ provision of free construction work on the homes and offices of the government officials coincided with the award of sewer contracts, and noting the pains to which the defendants went to cover up their conduct.
The Court also rejected a challenge, under Fed. R. Evid. 404(b) to the admission against one government official of evidence of bribery by the same contractor of another government official. The Court pointed out that evidence of multiple bribery recipients undercut the defense that the payments were made to one out of “friendship.”
The Court rejected the argument that the prosecution knowingly put on false testimony of a government witness, finding that the testimony may not have been false, and that the government did not know it was false – and that even if knowingly false, it did not affect the jury’s evaluation of the credibility of the witness.
As to a single count of conspiracy under 18 U.S.C. § 371, the Court overturned a conviction it was barred by the statute of limitations. The count was based on non-conspirator’s receipt of money from another non-conspirator, pursuant to an agreement between conspirators that was made at a time outside the statute of limitations. Although the receipt of illicit payment can qualify as an overt act for purposes of a conspiracy, and although this receipt of payment occurred within the statute of limitations, it involved non-conspirators, and there was no evidence that the conspirators who agreed on the payment knew the timing of the payment.
The Court rejected the argument that Wharton’s Rule, which precludes punishment for a substantive offense and of a conspiracy offense if the substantive offense itself requires the participation of two persons. The Court found no Congressional intent to preclude cumulative punishment for bribery and for conspiracy to commit bribery.
Turning to sentencing, the Court affirmed a $851,927 restitution, an amount which corresponded to the bribes paid. The Court rejected the argument that the government failed to show that the County lost this amount, noting the betrayal of the public trust, and that companies expect to recoup bribes in the cost of doing business. The Court recognized that because one defendant was 84 years old, the record did not show that he could repay the restitution in his lifetime; however, the Court found no plain error, because the County was entitled to recover restitution payments “for as long as they are made.”
The Court vacated the imposition of a $250,000 fine on one defendant, finding it was unable to glean from the record the basis for this specific amount. However, the Court affirmed the imposition of a $19.4 million fine on another defendant, noting that it was well below the Guideline range.
Wednesday, May 12, 2010
Mason: Confrontation Clause Error Harmless
In Mason v. Allen, No. 09-12195 (May 11, 2010), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder.
The Court found that the State committed error when it deprived Mason of the opportunity to cross-examine the informant on whose hearsay testimony it relied at trial. The State also committed error when the prosecutor stated in closing argument at the penalty phase that, “like all of the modern-day criminals,” the defendant intended to write a book – when there was no evidence to support this. However, the errors were harmless. The defendant confessed to the murder. The murder weapon was found in his car.
The Court found that the defendant had defaulted his argument that his confession was coerced.
Stone v. Powell foreclosed his argument that the State courts incorrectly decided his motion to suppress based on a Fourth Amendment violation
The Court found that the State committed error when it deprived Mason of the opportunity to cross-examine the informant on whose hearsay testimony it relied at trial. The State also committed error when the prosecutor stated in closing argument at the penalty phase that, “like all of the modern-day criminals,” the defendant intended to write a book – when there was no evidence to support this. However, the errors were harmless. The defendant confessed to the murder. The murder weapon was found in his car.
The Court found that the defendant had defaulted his argument that his confession was coerced.
Stone v. Powell foreclosed his argument that the State courts incorrectly decided his motion to suppress based on a Fourth Amendment violation
Monday, May 10, 2010
Phaknikone: MySpace Evidence Not Admissible Under 404(b)
In U.S. v. Phaknikone, No. 09-10084 (May 10, 2010), the Court found that the district court violated Fed. R. Evid. 404(b) when it admitted evidence from the defendant’s MySpace account, but held that the error was harmless in light of the overwhelming evidence of guilt, and affirmed bank robbery convictions.
The MySpace evidence consisted, inter alia, of a photograph posted on Phaknikone’s profile page that showed him holding a gun, and of his nickname, “Trigga.” The Court rejected the government’s argument that the photograph was properly admitted under Rule 404(b) as proof of modus operandi. “Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.” The Court found that the government improperly introduced photographs because it wanted the jury to infer that Phaknikone “is a gangster who is likely to rob banks.”
However, the error in admitting the evidence was harmless in light of Phaknikone’s confession to four bank robberies, the fact that stolen money was found at the scene of his arrest, and witness identification evidence. In addition, the government presented other modus operandi evidence.
Turning to sentencing, the district court rejected Phaknikone’s argument that his sentence of 2,005 months for seven bank robberies was greater than necessary. The sentence was based in part on a 25-year mandatory punishment under 18 U.S.C. § 924(c).
The MySpace evidence consisted, inter alia, of a photograph posted on Phaknikone’s profile page that showed him holding a gun, and of his nickname, “Trigga.” The Court rejected the government’s argument that the photograph was properly admitted under Rule 404(b) as proof of modus operandi. “Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.” The Court found that the government improperly introduced photographs because it wanted the jury to infer that Phaknikone “is a gangster who is likely to rob banks.”
However, the error in admitting the evidence was harmless in light of Phaknikone’s confession to four bank robberies, the fact that stolen money was found at the scene of his arrest, and witness identification evidence. In addition, the government presented other modus operandi evidence.
Turning to sentencing, the district court rejected Phaknikone’s argument that his sentence of 2,005 months for seven bank robberies was greater than necessary. The sentence was based in part on a 25-year mandatory punishment under 18 U.S.C. § 924(c).
Wednesday, April 28, 2010
Paige: Congress Can Regulate Intrastate Child Pornography
In U.S. v. Paige, No. 09-13067 (April 27, 2010), the Court affirmed convictions of a parent for permitting a minor child to engage in sexually explicit conduct for the purpose of producing child pornography, rejecting the argument that 18 U.S.C. § 2251(b) exceeded the scope of Congress’ authority under the Commerce Clause.
The Court found that “there is nothing irrational about Congress’s conclusion that failure to regulate the intrastate production of child pornography, by punishing parents who permit their minor children to participate in the production of child pornography, would undermine its regulation of the interstate child pornography market, especially where Congress’s goal is to eradicate the interstate market in its entirety.” The non-commercial nature of Paige’s photographs of his own child was therefore irrelevant. Moreover, Paige took the photographs to put on a website, thus establishing the interstate nexus.
The Court found that “there is nothing irrational about Congress’s conclusion that failure to regulate the intrastate production of child pornography, by punishing parents who permit their minor children to participate in the production of child pornography, would undermine its regulation of the interstate child pornography market, especially where Congress’s goal is to eradicate the interstate market in its entirety.” The non-commercial nature of Paige’s photographs of his own child was therefore irrelevant. Moreover, Paige took the photographs to put on a website, thus establishing the interstate nexus.
Crape: Insanity Acquittee Revocation Must Involve Failure to Comply with Regimen
In U.S. v. Crape, No. 09-12470 (April 21, 2010), the Court held that a district court has authority to revoke the conditional discharge of a person who was acquitted by reason of insanity and then committed, only if the person has failed to comply with his regimen of treatment.
Though recognizing that its position conflicted with decisions in three other Circuits, the Court held that the plain language of 18 U.S.C. § 4243(g), coupled with its legislative history, makes an acquittee’s failure to follow his doctors’ orders a prerequisite to the revocation of his release. The Court rejected the argument that the statute gave district courts authority to revoke a conditional discharge simply because an acquittee is “dangerous.” The Court pointed out that § 4243 differed from the supervised release statute, which delegates broader authority to district courts with regard to violations of supervised release.
Though recognizing that its position conflicted with decisions in three other Circuits, the Court held that the plain language of 18 U.S.C. § 4243(g), coupled with its legislative history, makes an acquittee’s failure to follow his doctors’ orders a prerequisite to the revocation of his release. The Court rejected the argument that the statute gave district courts authority to revoke a conditional discharge simply because an acquittee is “dangerous.” The Court pointed out that § 4243 differed from the supervised release statute, which delegates broader authority to district courts with regard to violations of supervised release.
Dean: Attorney General Could ByPass Notice & Comment on SORNA Rules
In U.S. v. Dean, No. 09-13115 (April 28, 2010), the Court held that the Attorney General had “good cause” to promulgate the rule making sex offender registration requirements applicable to sex offenders convicted prior to SORNA’s enactment without a pre-promulgation notice and comment period.
The Court found that bypassing the notice and comment period allowed the government to immediately start prosecuting sex offenders who failed to register in state registries, thus reducing the risk of additional sexual offenses. The Court therefore found that public safety justified by passing notice and comment on the Attorney General’s rule.
The Court found that bypassing the notice and comment period allowed the government to immediately start prosecuting sex offenders who failed to register in state registries, thus reducing the risk of additional sexual offenses. The Court therefore found that public safety justified by passing notice and comment on the Attorney General’s rule.
Monday, April 19, 2010
Lee: Substantial Step Toward Enticement of Minor Need not be toward Causing Conduct
In U.S. v. Lee, No. 08-17077 (April 16, 2010), the Court affirmed convictions for attempted enticement of a minor, and child pornography charges.
The Court rejected Lee’s sufficiency of the evidence challenge to his convictions. Lee argued that he could not be guilty of attempted enticement of a minor because he dealt only with an adult (an undercover agent), with regard to two fictitious minors. The Court found that, for purposes of violating the enticement statute, one can “induce” a minor by dealing with an adult who has charge of the minor, like a parent or guardian. The Court cited precedent holding that an actual minor is not needed to violate the statute: fictitious minors suffice.
The Court rejected the argument that Lee had not taken a “substantial step” toward committing the offense. The Court pointed out that a substantial step toward “causing assent” to sex with a minor suffices; the substantial step need not be “toward causing actual sexual conduct.” The Court found sufficient evidence that Lee had taken a substantial step toward causing assent, including his promise not to harm the minor girls during intercourse.
[Martin, J., dissenting, argued that the substantial step evidence was insufficient, pointing out that during the telephone calls “the plans were never more than general talk about what could happen in the future,” and the defendant did not take any step beyond the boundaries of his property.]
The Court rejected Lee’s sufficiency of the evidence challenge to his convictions. Lee argued that he could not be guilty of attempted enticement of a minor because he dealt only with an adult (an undercover agent), with regard to two fictitious minors. The Court found that, for purposes of violating the enticement statute, one can “induce” a minor by dealing with an adult who has charge of the minor, like a parent or guardian. The Court cited precedent holding that an actual minor is not needed to violate the statute: fictitious minors suffice.
The Court rejected the argument that Lee had not taken a “substantial step” toward committing the offense. The Court pointed out that a substantial step toward “causing assent” to sex with a minor suffices; the substantial step need not be “toward causing actual sexual conduct.” The Court found sufficient evidence that Lee had taken a substantial step toward causing assent, including his promise not to harm the minor girls during intercourse.
[Martin, J., dissenting, argued that the substantial step evidence was insufficient, pointing out that during the telephone calls “the plans were never more than general talk about what could happen in the future,” and the defendant did not take any step beyond the boundaries of his property.]
Wednesday, April 14, 2010
Fowler: "Possible" Investigation Sufficient for 1512 Murder Liability
In U.S. v. Fowler, No. 08-15463 (April 14, 2010), the Court found sufficient evidence to support a conviction for murder with the intent to prevent a person from communicating information about a federal offense to a federal law enforcement officer, in violation of 18 U.S.C. § 1512(a)(1)(C).
Fowler shot a police officer in the back of the head while the officer had stopped a group of persons who were preparing to rob a bank, and who possessed firearms, a stolen car, and narcotics – i.e., were committing federal crimes that “could have led to a federal investigation and prosecution.” Consequently, Fowler had the requisite mens rea to violate 18 U.S.C. § 1512(a)(1)(C), which criminalizes killings intended to prevent communication relating to “possible commission” of a federal offense. (Emphasis in original). Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), which similarly interpreted a similarly-worded statute, the Court held that the government need only prove “that the defendant intended to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense.”
Fowler shot a police officer in the back of the head while the officer had stopped a group of persons who were preparing to rob a bank, and who possessed firearms, a stolen car, and narcotics – i.e., were committing federal crimes that “could have led to a federal investigation and prosecution.” Consequently, Fowler had the requisite mens rea to violate 18 U.S.C. § 1512(a)(1)(C), which criminalizes killings intended to prevent communication relating to “possible commission” of a federal offense. (Emphasis in original). Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), which similarly interpreted a similarly-worded statute, the Court held that the government need only prove “that the defendant intended to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense.”
Lena-Encinas: No Miranda Custody When Seized In Frontyard
In U.S. v. Lena-Encinas, No. 08-12574 (April 13, 2010), the Court held that a defendant was not “in custody” for Miranda purposes, and affirmed the denial of a motion to suppress unMirandized statements he made to police.
The Court noted that merely being “seized” does not suffice to establish custody: the person must feel not free to leave “to a degree associated with a formal arrest.”
Lena-Encinas was encountered by police in the backyard of a townhouse. Police had their weapons out of their holsters, pointing downward. Police instructed Lena-Encinas to sit down while the townhouse was being secured, and stated that he was not a suspect. During the next ten minutes, Lena-Encinas was escorted to the front of the townhouse, and told not to speak. After police obtained information that there was a firearm in the townhouse, they asked Lena-Encinas about it. The Court held that Lena-Encinas’ response – that a firearm was under a mattress in the townhouse – was not obtained in violation of Miranda.
Lena-Encinas “was on familiar ground in his own front yard.” His detention “lasted a mere five minutes.” Lena-Encinas never asked to leave the premises, nor informed the officers that he did not wish to comply with their requests. Therefore, even assuming Lena-Encinas had been seized, he “would not have believed that he was utterly at the mercy of the police.” He was not in custody for Miranda purposes.
The Court noted that merely being “seized” does not suffice to establish custody: the person must feel not free to leave “to a degree associated with a formal arrest.”
Lena-Encinas was encountered by police in the backyard of a townhouse. Police had their weapons out of their holsters, pointing downward. Police instructed Lena-Encinas to sit down while the townhouse was being secured, and stated that he was not a suspect. During the next ten minutes, Lena-Encinas was escorted to the front of the townhouse, and told not to speak. After police obtained information that there was a firearm in the townhouse, they asked Lena-Encinas about it. The Court held that Lena-Encinas’ response – that a firearm was under a mattress in the townhouse – was not obtained in violation of Miranda.
Lena-Encinas “was on familiar ground in his own front yard.” His detention “lasted a mere five minutes.” Lena-Encinas never asked to leave the premises, nor informed the officers that he did not wish to comply with their requests. Therefore, even assuming Lena-Encinas had been seized, he “would not have believed that he was utterly at the mercy of the police.” He was not in custody for Miranda purposes.
Monday, April 12, 2010
Powell: Insufficient Evidence of Mental Retardation to Bar Death Penalty
In Powell v. Allen, No. 08-16784 (April 8, 2010), the Court affirmed the denial of habeas relief to an Alabama death row inmate.
The Court, inter alia, rejected Powell’s claim that he is sufficiently mentally retarded that his execution is constitutionally barred. The Court noted that a finding of mental retardation requires both significantly subaverage intellectual functioning and significant deficits in adaptive functioning. Powell failed to plead facts to establish these findings.
The Court, inter alia, rejected Powell’s claim that he is sufficiently mentally retarded that his execution is constitutionally barred. The Court noted that a finding of mental retardation requires both significantly subaverage intellectual functioning and significant deficits in adaptive functioning. Powell failed to plead facts to establish these findings.
Monday, April 05, 2010
Coast: Two Criminal History Points for Driving with Suspended Licence Conviction
In U.S. v. Coast, No. 17-116 (April 5, 2010), the Court affirmed adding two points to a defendant’s criminal history for a prior conviction for driving with a suspended license.
Coast had originally been sentenced to probation. Had this remained his only sentence, the prior conviction would not have qualified for the two criminal history points under U.S.S.G. § 4A1.2(c)(1). However, Coast’s probation was revoked, and he was sentenced to 219 days’ incarceration, more than the 30-day threshold for counting prior convictions. The Court noted that revocation of probation is part of an original sentence. Moreover, the Guidelines focus on the length of the sentence, not the nature of the conviction.
Coast had originally been sentenced to probation. Had this remained his only sentence, the prior conviction would not have qualified for the two criminal history points under U.S.S.G. § 4A1.2(c)(1). However, Coast’s probation was revoked, and he was sentenced to 219 days’ incarceration, more than the 30-day threshold for counting prior convictions. The Court noted that revocation of probation is part of an original sentence. Moreover, the Guidelines focus on the length of the sentence, not the nature of the conviction.
Jones: Speedy Trial Act Violation
In U.S. v. Jones, No. 08-16999 (Apr. 2, 2010), the Court reversed two felon-in-possession of a firearm and ammunition convictions because of a Speedy Trial Act violation, affirmed two felon-in-possession convictions, and remanded for resentencing.
Jones was convicted of two counts of being a felon-in-possession, but the Court of Appeals overturned these convictions. After a remand, the government, after obtaining additional information from a jailhouse informant, re-indicted Jones, this time on four felon-in-possession counts. The jury convicted Jones on all four counts.
Jones argued that the two original counts should be dismissed on Speedy Trial grounds because of the passage of 70-day deadline between the issuance of the mandate on his first appeal and the commencement of his second trial. The Court agreed, pointing out that when, as occurred here, the district court decides a pre-trial motion without a hearing, this court has 30 “excludable days” to rule on a motion – thereafter, the days count against the Speedy Trial deadline. Once the excludable days were taken into account, a total of 75 days elapsed before Jones was brought to trial. Hence, a Speedy Trial violation occurred.
However, the Court found that the district court could dismiss the affected counts “without prejudice” instead of “with prejudice,” because Jones was charged with “serious crimes,” the government’s delay was “excusable” because its interpretation of the Speedy Trial Act was “colorable,” and the five-day delay was “brief.”
The Court rejected the argument that Double Jeopardy required dismissal of the two new counts of the indictment. The charged acts of possession did not constitute a continuing course of conduct. Instead, the defendant possessed different weapons – two firearms and different ammunition for each firearm – at different times and or places. The government could therefore treat them as (four) different units of prosecution. For this same reason, the indictment was not multiplicitous.
The Court also rejected the argument that the prosecution vindictively added two counts to the indictment. The Court noted that the new information the government obtained after Jones’ win on appeal gave it sufficient evidence “to confidently bring the additional possession charges.”
The Court found no reversible error in the district court’s admission of the videotaped statement of a witness. The witness was unable to remember the subject matter of the video. The statement was therefore admissible under Fed. R. Evid. 803(5) as past recollection recorded, because the witness gave adequate verification of the accuracy of the contents of the video. The Court found no Confrontation Clause violation in the admission of the video, pointing out that the witness was subject to cross-examination at trial.
The Court also found no reversible error in allowing the video tape to be played for the jury during deliberations – even though the video was not received in evidence as an exhibit. The Court assumed that it was error to allow the video to be played for the jury during deliberations, but found the error harmless because the video “provided only cumulative evidence.”
Finally, the Court found no Jencks Act or Brady violation in the government’s failure to turn over a letter written by one of its cooperating witnesses. The Court found the nondisclosure harmless, because any additional impeachment value would have been “minimal.”
Jones was convicted of two counts of being a felon-in-possession, but the Court of Appeals overturned these convictions. After a remand, the government, after obtaining additional information from a jailhouse informant, re-indicted Jones, this time on four felon-in-possession counts. The jury convicted Jones on all four counts.
Jones argued that the two original counts should be dismissed on Speedy Trial grounds because of the passage of 70-day deadline between the issuance of the mandate on his first appeal and the commencement of his second trial. The Court agreed, pointing out that when, as occurred here, the district court decides a pre-trial motion without a hearing, this court has 30 “excludable days” to rule on a motion – thereafter, the days count against the Speedy Trial deadline. Once the excludable days were taken into account, a total of 75 days elapsed before Jones was brought to trial. Hence, a Speedy Trial violation occurred.
However, the Court found that the district court could dismiss the affected counts “without prejudice” instead of “with prejudice,” because Jones was charged with “serious crimes,” the government’s delay was “excusable” because its interpretation of the Speedy Trial Act was “colorable,” and the five-day delay was “brief.”
The Court rejected the argument that Double Jeopardy required dismissal of the two new counts of the indictment. The charged acts of possession did not constitute a continuing course of conduct. Instead, the defendant possessed different weapons – two firearms and different ammunition for each firearm – at different times and or places. The government could therefore treat them as (four) different units of prosecution. For this same reason, the indictment was not multiplicitous.
The Court also rejected the argument that the prosecution vindictively added two counts to the indictment. The Court noted that the new information the government obtained after Jones’ win on appeal gave it sufficient evidence “to confidently bring the additional possession charges.”
The Court found no reversible error in the district court’s admission of the videotaped statement of a witness. The witness was unable to remember the subject matter of the video. The statement was therefore admissible under Fed. R. Evid. 803(5) as past recollection recorded, because the witness gave adequate verification of the accuracy of the contents of the video. The Court found no Confrontation Clause violation in the admission of the video, pointing out that the witness was subject to cross-examination at trial.
The Court also found no reversible error in allowing the video tape to be played for the jury during deliberations – even though the video was not received in evidence as an exhibit. The Court assumed that it was error to allow the video to be played for the jury during deliberations, but found the error harmless because the video “provided only cumulative evidence.”
Finally, the Court found no Jencks Act or Brady violation in the government’s failure to turn over a letter written by one of its cooperating witnesses. The Court found the nondisclosure harmless, because any additional impeachment value would have been “minimal.”
Friday, April 02, 2010
Santiago: Florida probation and adjudication withheld is a "conviction"
In U.S. v. Santiago, No. 09-10466 (April 2, 2010), the Court held that a guilty plea followed by a sentence of probation and a withholding of adjudication under Florida law qualified as a prior “conviction” for purposes of enhancing an offender’s sentence under 18 U.S.C. § 922(g)(1).
Rejecting the defendant’s interpretation of the statute, the Court noted that the determination whether a prior judgment should be treated as a “conviction” was a matter of State law. Here, Florida’s habitual offender law expressly provided that a sentence of probation without an adjudication of guilty “shall be treated as a prior conviction.” Thus, Santiago’s prior judgment, along with two other prior convictions, qualified him for the enhanced sentence.
Rejecting the defendant’s interpretation of the statute, the Court noted that the determination whether a prior judgment should be treated as a “conviction” was a matter of State law. Here, Florida’s habitual offender law expressly provided that a sentence of probation without an adjudication of guilty “shall be treated as a prior conviction.” Thus, Santiago’s prior judgment, along with two other prior convictions, qualified him for the enhanced sentence.
Thursday, April 01, 2010
Suarez: Alien Smuggling Convictions Affirmed
In U.S. v. Suarez, No. 08-13675 (March 31, 2010), the Court affirmed alien smuggling convictions and sentences.
The Court rejected the argument that the indictment should be dismissed because the government repatriated to Cuba the group of Cubans on the boat being smuggled to the United States – Cubans who would have testified that they forced their way onto a boat destined only for relatives of the defendant. The Court noted that the defendant never raised this defense during interviews with the Coast Guard, and was otherwise potentially able to present it at trial. Further, the government did not repatriate the Cubans in bad faith, but in accordance with “standard operating procedure.”
The Court also rejected the argument that the application for electronic surveillance was invalid because other investigative procedures were not adequately tried, as the statute requires. The Court cited evidence physical surveillance was used, and testimony that “pen registers and trap and trace devices were not entirely useful because of the probability of multiple subscribers to the previously identified phone numbers and the frequent use of aliases.”
The Court also rejected the argument that the government failed to minimize the interception of communications not subject to wiretap. The Court found that the small number of “minimized” calls was not evidence, standing alone, of unreasonable minimization procedures.
The Court rejected the argument that the defendant should have been able to introduce in evidence a government witness’ prior inconsistent statement made to law enforcement agent. The Court noted that the witness, when questioned about the statement, did not adopt it. Further, it was not admitted as an admission of the declarant’s state of mind, because the witness was not the declarant of the statement, and the statement was made after, not during, the incident.
The Court found that a prosecutor’s vouching for a witness in closing argument did not prejudice the defendant’s substantial rights, pointing out that the judge instructed the jury on how to evaluate witness credibility.
Turning to sentencing, the Court affirmed the imposition of a “special skills” sentence enhancement under USSG § 3B1.3. The Court found that “the average person could not operate a vessel . . . without the use of [the defendant’s] unique skills.” The Court also affirmed the enhancement for causing a substantial risk of death, because 36 individuals were on board a vessel designed to hold no more than 12, and no life jackets were available. It found no double counting occurred as a result of the additional enhancement for endangerment during flight, which was based on a two-hour high-speed chase.
Finally, the Court rejected the argument that a five-year statutory maximum applied to his offense, pointing out that convictions under 8 U.S.C. § 1324(a)(1)(A)(v)(I) carry a ten-year maximum.
The Court rejected the argument that the indictment should be dismissed because the government repatriated to Cuba the group of Cubans on the boat being smuggled to the United States – Cubans who would have testified that they forced their way onto a boat destined only for relatives of the defendant. The Court noted that the defendant never raised this defense during interviews with the Coast Guard, and was otherwise potentially able to present it at trial. Further, the government did not repatriate the Cubans in bad faith, but in accordance with “standard operating procedure.”
The Court also rejected the argument that the application for electronic surveillance was invalid because other investigative procedures were not adequately tried, as the statute requires. The Court cited evidence physical surveillance was used, and testimony that “pen registers and trap and trace devices were not entirely useful because of the probability of multiple subscribers to the previously identified phone numbers and the frequent use of aliases.”
The Court also rejected the argument that the government failed to minimize the interception of communications not subject to wiretap. The Court found that the small number of “minimized” calls was not evidence, standing alone, of unreasonable minimization procedures.
The Court rejected the argument that the defendant should have been able to introduce in evidence a government witness’ prior inconsistent statement made to law enforcement agent. The Court noted that the witness, when questioned about the statement, did not adopt it. Further, it was not admitted as an admission of the declarant’s state of mind, because the witness was not the declarant of the statement, and the statement was made after, not during, the incident.
The Court found that a prosecutor’s vouching for a witness in closing argument did not prejudice the defendant’s substantial rights, pointing out that the judge instructed the jury on how to evaluate witness credibility.
Turning to sentencing, the Court affirmed the imposition of a “special skills” sentence enhancement under USSG § 3B1.3. The Court found that “the average person could not operate a vessel . . . without the use of [the defendant’s] unique skills.” The Court also affirmed the enhancement for causing a substantial risk of death, because 36 individuals were on board a vessel designed to hold no more than 12, and no life jackets were available. It found no double counting occurred as a result of the additional enhancement for endangerment during flight, which was based on a two-hour high-speed chase.
Finally, the Court rejected the argument that a five-year statutory maximum applied to his offense, pointing out that convictions under 8 U.S.C. § 1324(a)(1)(A)(v)(I) carry a ten-year maximum.
Thursday, March 25, 2010
Sneed: Precluding Police Reports as Source for 924(e) Temporality Findings
In U.S. v. Sneed, No. 09-13195 (March 24, 2010), the Court vacated the 15-year minimum mandatory sentence imposed, based on his three prior convictions, on a defendant convicted of being a felon in possession of firearm, in violation of 18 U.S.C. § 924(e).
Section 924(e) provides for a sentence enhancement if the defendant committed three prior qualifying felonies on occasions different from one another. The district court, over Sneed’s objection, found that the three prior felonies were committed on different occasions – based only on police reports.
On appeal, the Court recognized that U.S. v. Richardson, 230 F.3d 1297 (11th Cir. 2000), held that a sentencing court could consider police reports for purposes of determining whether three prior qualifying felonies were committed on occasions different from one another. The Court determined that Richardson had effectively been abrogated by Shephard v. U.S., 544 U.S. 13 (2005).
The Court noted that Shephard precluded reliance on police reports to establish the nature of a prior conviction for purposes of the § 924(e) enhancement. The Court recognized that Shepard thus addressed the nature of prior convictions, not, as in Richardson, whether the prior convictions were temporally separate. However, noting Shephard’s Sixth Amendment concerns, the Court found “simply no distinction” between the two inquiries. It held that police reports are not Shephard-approved sources for § 924(e) findings with respect to whether offenses were committed on different occasions.
The Court vacated Sneed’s sentence and remanded for resentencing without the § 924(e) enhancement.
Section 924(e) provides for a sentence enhancement if the defendant committed three prior qualifying felonies on occasions different from one another. The district court, over Sneed’s objection, found that the three prior felonies were committed on different occasions – based only on police reports.
On appeal, the Court recognized that U.S. v. Richardson, 230 F.3d 1297 (11th Cir. 2000), held that a sentencing court could consider police reports for purposes of determining whether three prior qualifying felonies were committed on occasions different from one another. The Court determined that Richardson had effectively been abrogated by Shephard v. U.S., 544 U.S. 13 (2005).
The Court noted that Shephard precluded reliance on police reports to establish the nature of a prior conviction for purposes of the § 924(e) enhancement. The Court recognized that Shepard thus addressed the nature of prior convictions, not, as in Richardson, whether the prior convictions were temporally separate. However, noting Shephard’s Sixth Amendment concerns, the Court found “simply no distinction” between the two inquiries. It held that police reports are not Shephard-approved sources for § 924(e) findings with respect to whether offenses were committed on different occasions.
The Court vacated Sneed’s sentence and remanded for resentencing without the § 924(e) enhancement.
Monday, March 22, 2010
Ramunno: No Constructive Trust for Victim of Ponzi Scheme
In U.S. v. Ramunno, No. 09-10446 (March 17, 2010), the Court found no abuse of discretion in the district court’s denial of a fraud-victim’s request to amend an order of forfeiture against the defendant and recognize a “constructive trust” under Georgia state law in the amount of funds the victim invested. The Court pointed out that the claimant was just one of a number of victims of Ramunno’s Ponzi scheme, and that if he were granted a constructive trust to recoup his entire loss, the pool of funds available to distribute to Ramunno’s other victims through the Attorney General’s remission process would be reduced. “If the funds are distributed equitably to all victims, then each victim . . . may recover some fraction of their lost investments.”
Thursday, March 18, 2010
Jennings: Workers' Comp. Fraud Conviction Upheld
In U.S. v. Jennings, No. 08-13434 (March 16, 2010), the Court affirmed convictions and sentences arising out of a scheme to sell fraudulent workers’ compensation insurance.
The Court rejected the defendant’s challenge to the reliance by the government’s expert on hearsay evidence. The Court found that the hearsay was based on “general practice in the field” regarding industry requirements, “gleaned from years of working within the industry and its professionals.”
The Court found that a witness’ testimony about parallel civil litigation was too fleeting to overturn the district court’s denial of a mistrial.
The Court declined to find that treating the receipts instead of the profits as the subject of money laundering constituted plain error under the Supreme Court’s decision in U.S. v. Santos. The fragmented opinions in that case yielded a precedent limited only to money laundering in unlicensed gambling cases – which this case was not.
The Court rejected a challenge to the substantive reasonableness of the sentence, citing the district court’s finding that the defendant “defrauded his victims of their rightful benefits out of sheer greed and in doing so caused great suffering.”
The Court rejected the defendant’s challenge to the reliance by the government’s expert on hearsay evidence. The Court found that the hearsay was based on “general practice in the field” regarding industry requirements, “gleaned from years of working within the industry and its professionals.”
The Court found that a witness’ testimony about parallel civil litigation was too fleeting to overturn the district court’s denial of a mistrial.
The Court declined to find that treating the receipts instead of the profits as the subject of money laundering constituted plain error under the Supreme Court’s decision in U.S. v. Santos. The fragmented opinions in that case yielded a precedent limited only to money laundering in unlicensed gambling cases – which this case was not.
The Court rejected a challenge to the substantive reasonableness of the sentence, citing the district court’s finding that the defendant “defrauded his victims of their rightful benefits out of sheer greed and in doing so caused great suffering.”
Frank: Un-Mirandized Statement to Cambodian Police Is Admissible
In U.S. v. Frank, No. 07-13685 (March 15, 2010), the Court affirmed convictions for traveling to Cambodia and engaging in illicit sexual conduct with minor children, in violation of 18 U.S.C. §§ 2423(b) and 2251A(b)(2)(A).
The Court rejected Frank’s argument that his un-Mirandized statements to Cambodian police in Cambodia should have been suppressed. The Court noted that Miranda only applies in a foreign country if American officials are involved in the questioning or if the questioning shocks the judicial conscience; here, American officials played no role in Frank’s questioning. Moreover, Frank’s questioning did not shock the judicial conscience.
The Court also rejected Frank’s challenge to the extraterritorial application of § 2251A. The Court found that Congress intended to apply this statute extraterritorially, because it criminalized conduct by a person who “travels in foreign commerce” and engages in any illicit sexual conduct.
The Court rejected the argument that Frank was not guilty of the “purchase” of a minor for the purpose of producing a sexually explicit visual depiction, because he paid the minors directly, not a third-party. “In the context of child prostitution, the minor herself is turned into an object or commodity, by selling her body to be used by the defendant for a certain purpose.”
The Court found that the prosecutor’s reference to the defendant in closing as a “shark” was not improper because it was responding to the defense characterization of the defendant as a “dolphin.”
Turning to sentencing, the Court found no plain error in imposing multiple sentences for both traveling to Cambodia and engaging in illicit sexual conduct, even though all the criminal activity happened during one single trip.
The Court rejected Frank’s argument that his un-Mirandized statements to Cambodian police in Cambodia should have been suppressed. The Court noted that Miranda only applies in a foreign country if American officials are involved in the questioning or if the questioning shocks the judicial conscience; here, American officials played no role in Frank’s questioning. Moreover, Frank’s questioning did not shock the judicial conscience.
The Court also rejected Frank’s challenge to the extraterritorial application of § 2251A. The Court found that Congress intended to apply this statute extraterritorially, because it criminalized conduct by a person who “travels in foreign commerce” and engages in any illicit sexual conduct.
The Court rejected the argument that Frank was not guilty of the “purchase” of a minor for the purpose of producing a sexually explicit visual depiction, because he paid the minors directly, not a third-party. “In the context of child prostitution, the minor herself is turned into an object or commodity, by selling her body to be used by the defendant for a certain purpose.”
The Court found that the prosecutor’s reference to the defendant in closing as a “shark” was not improper because it was responding to the defense characterization of the defendant as a “dolphin.”
Turning to sentencing, the Court found no plain error in imposing multiple sentences for both traveling to Cambodia and engaging in illicit sexual conduct, even though all the criminal activity happened during one single trip.
Thursday, March 11, 2010
Davis: Pre-Gant Caselaw Excuses Unlawful Search
In U.S. v. Davis, No. 08-16654 (March 11, 2010), recognizing a Circuit split on this issue, the Court held that even though the police search of a vehicle was unreasonable under Arizona v. Gant, 129 S.Ct. 1710 (2009), the fruits of the search need not be suppressed, because the police were relying in good faith on pre-Gant precedent which authorized their search.
The Court first held that the constitutionality of a search, and the applicability of the exclusionary rule to suppress the fruits of the search, are separate questions. The application of the exclusionary rule is subject to the “good faith exception.” The Court emphasized that pre-Gant law was clear, and “unambiguously” authorized the search in this case. Consequently, the Court declined to apply the exclusionary rule.
The Court first held that the constitutionality of a search, and the applicability of the exclusionary rule to suppress the fruits of the search, are separate questions. The application of the exclusionary rule is subject to the “good faith exception.” The Court emphasized that pre-Gant law was clear, and “unambiguously” authorized the search in this case. Consequently, the Court declined to apply the exclusionary rule.
Ternus: Stolen paintings conviction upheld
In U.S. v. Ternus, No. 07-14708 (March 2, 2010), the Court affirmed Ternus’ conviction for conspiracy to transport in interstate commerce stolen goods, in violation of 18 U.S.C. §§ 371 and 2314. The case involved four paintings stolen from a museum in Nice, France.
The Court rejected the argument that there was insufficient evidence that Ternus intended to transport the paintings in foreign commerce. The Court noted that Ternus pled guilty to the charge, including its jurisdictional element.
The Court also rejected the argument that the district court erred in accepting his guilty plea because of the lack of evidence on the jurisdictional element, pointing out that Ternus’ plan was for the paintings were to be brought to the United States.
The Court rejected the argument that there was insufficient evidence that Ternus intended to transport the paintings in foreign commerce. The Court noted that Ternus pled guilty to the charge, including its jurisdictional element.
The Court also rejected the argument that the district court erred in accepting his guilty plea because of the lack of evidence on the jurisdictional element, pointing out that Ternus’ plan was for the paintings were to be brought to the United States.
Williams: Counsel not ineffective for failing to call psychopharmacologist
In Williams v. Allen, No. 08-11905 (March 4, 2010), the Court denied habeas relief to an Alabama death row inmate convicted of two murders in 1992.
The Court rejected Williams’ argument that his counsel was ineffective for pursuing an insanity defense. It was a “sound strategic decision.”
The Court also rejected Williams’ claim that counsel failed to adequately investigate an intoxication defense. The Court found that even had a psychopharmacologist been called as a witness by the defense, the jury could have concluded that the murders were purposeful, and therefore deserving of the death penalty.
Finally, the Court rejected the argument that counsel was ineffective for failing to object to burden-shifting jury instructions. The Court found that the jury was instructed to presume sanity, not intent.
The Court rejected Williams’ argument that his counsel was ineffective for pursuing an insanity defense. It was a “sound strategic decision.”
The Court also rejected Williams’ claim that counsel failed to adequately investigate an intoxication defense. The Court found that even had a psychopharmacologist been called as a witness by the defense, the jury could have concluded that the murders were purposeful, and therefore deserving of the death penalty.
Finally, the Court rejected the argument that counsel was ineffective for failing to object to burden-shifting jury instructions. The Court found that the jury was instructed to presume sanity, not intent.
Culver: 720-month sentence for child pornographer
In U.S. v. Culver, No. 07_14708 (March 2, 2010), the Court affirmed the conviction and 720-month sentence imposed on a defendant convicted of producing child pornography of his stepdaughter.
The Court rejected the argument that the Commerce Clause did not authorize Congress to criminalize Culver’s conduct, pointing out that “pornography begets pornography, regardless of its origin.”
The Court also rejected Culver’s Rule 404(b) challenge to admission of evidence that he used a stun gun against his stepdaughter, pointing out that this evidence was relevant to show that he rendered her unconscious to make the tape of her.
The Court also affirmed the exclusion of evidence of the victim’s prior sexual history. The Court found that Culver was given adequate opportunity to question the victim on cross-examination.
Turning to sentencing, the Court found it not unreasonable for the sentencing court to have increased Culver’s sentence based on findings that he drugged and shocked the victim, despite a State jury’s acquittal of Culver on these charges. The Court noted that a sentencing court can rely on acquitted conduct.
The Court rejected the argument that the Commerce Clause did not authorize Congress to criminalize Culver’s conduct, pointing out that “pornography begets pornography, regardless of its origin.”
The Court also rejected Culver’s Rule 404(b) challenge to admission of evidence that he used a stun gun against his stepdaughter, pointing out that this evidence was relevant to show that he rendered her unconscious to make the tape of her.
The Court also affirmed the exclusion of evidence of the victim’s prior sexual history. The Court found that Culver was given adequate opportunity to question the victim on cross-examination.
Turning to sentencing, the Court found it not unreasonable for the sentencing court to have increased Culver’s sentence based on findings that he drugged and shocked the victim, despite a State jury’s acquittal of Culver on these charges. The Court noted that a sentencing court can rely on acquitted conduct.
Wednesday, March 10, 2010
Rozier: Felon in Possession Crime is Constitutional
In U.S. v. Rozier, No. 08-17061 (March 4, 2010), the Court rejected the argument that 18 U.S.C. § 922(g)(1), which criminalizes a felon’s possession of a firearm, is unconstitutional in light of the right to bear arms recognized in District of Columbia v. Heller, 128 S.Ct. 2783 (2008). The Court noted that Heller stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”
Separately, the Court reaffirmed that life is the statutory maximum for violators of § 922(g)(1) how have been previously convicted of at least three serious drug offenses.
Separately, the Court reaffirmed that life is the statutory maximum for violators of § 922(g)(1) how have been previously convicted of at least three serious drug offenses.
Tuesday, March 09, 2010
Brummer: Firearm forfeiture Mandatory
In U.S. v. Brummer, No. 09-13613 (March 8, 2010), the Court held that forfeiture of firearms or ammunition is mandatory for defendants convicted of knowingly and willfully failing to declare firearms to a common carrier, in violation of 18 U.S.C. § 922(e). The Court relied on the plain language of the statute, specifically its use of the word “shall” with reference to the order of forfeiture.
Bacon: Individually Attributable Quantities Only Trigger Mandatory Minimum
In U.S. v. Bacon, No. 08-10463 (March 4, 2010), the Court affirmed multi-defendant drug trafficking convictions, but vacated one sentence.
The Court rejected sufficiency of the evidence challenges, noting that the jury could rely on a defendant’s presence at a drug exchange as probative evidence.
Turning to sentencing, the Court found plain error in the district court’s failure to determine whether one defendant qualified for a mandatory minimum sentence based only on the quantity of drugs individually attributable to him.
The Court rejected sufficiency of the evidence challenges, noting that the jury could rely on a defendant’s presence at a drug exchange as probative evidence.
Turning to sentencing, the Court found plain error in the district court’s failure to determine whether one defendant qualified for a mandatory minimum sentence based only on the quantity of drugs individually attributable to him.
Monday, March 08, 2010
Dodge: Transfer of sex materials to minor qualifies for sex offender registration
In U.S. v. Dodge, No. 08-10802 (March 5, 2010) (en banc), the Court held that a conviction for transferring obscene material to a minor in violation of 18 U.S.C. § 1470 qualifies as a “specified offense against a minor” and therefore subjects a sex offender to SORNA registration requirements.
The Court rejected the argument that the statute by implication excluded his offense from the list of qualifying offenses, noting the “broad purpose and scope of SORNA.”
The Court held that, in determining whether an offense met the SORNA definition, courts could look to the underlying conduct, not just to the elements of the offense. Here, Dodge evinced his intent that a thirteen-year old girl view him in a sexual state. This conduct qualified as a criminal offense against a minor.
The Court rejected the argument that the statute by implication excluded his offense from the list of qualifying offenses, noting the “broad purpose and scope of SORNA.”
The Court held that, in determining whether an offense met the SORNA definition, courts could look to the underlying conduct, not just to the elements of the offense. Here, Dodge evinced his intent that a thirteen-year old girl view him in a sexual state. This conduct qualified as a criminal offense against a minor.
Tuesday, March 02, 2010
DuBose: Protective Order Sufficed to Establish 922(g)(8) violation
In U.S. v. DuBose, No. 09-11400 (March 1, 2010), the Court affirmed a defendant’s conviction for possessing a firearm while subject to a protective order, in violation of 18 U.S.C. § 922(g)(8).
The Court rejected the argument that DuBose’s protective order did not meet the statute’s requirement that it involve preventing the use of physical force. The Court pointed out that the protective order enjoined DuBose from “hurting” his wife.
The Court also rejected DuBose’s attempt to challenge the validity of the Alabama protective order under Alabama. Pointing out that the Supreme Court foreclosed collateral attacks on prior felony convictions in felon in possession cases in Lewis v. United States, the Court applied the same rule to underlying protective orders in § 922(g)(8) prosecutions.
The Court rejected the argument that DuBose’s protective order did not meet the statute’s requirement that it involve preventing the use of physical force. The Court pointed out that the protective order enjoined DuBose from “hurting” his wife.
The Court also rejected DuBose’s attempt to challenge the validity of the Alabama protective order under Alabama. Pointing out that the Supreme Court foreclosed collateral attacks on prior felony convictions in felon in possession cases in Lewis v. United States, the Court applied the same rule to underlying protective orders in § 922(g)(8) prosecutions.
Friday, February 26, 2010
Whitson: Non-overt act conspiracy not "crime of violence"
In U.S. v. Whitson, No. 09-10521 (Feb. 24, 2010), applying Begay v. U.S., the Court held that a prior conviction for a non-overt act conspiracy was not a “crime of violence” for purposes of Career Offender eligibility under USSG § 4B1.1
The Court noted that the South Carolina conspiracy statute under which Whitson was previously convicted does not require an overt act. Further, the “agreement” that constitutes a conspiracy is not, without more, violent or aggressive. The Court rejected the Fourth Circuit’s contrary holding that a conspiracy cannot be divorced from its violent objective, and that a conspiracy increases the likelihood of violence. The Court held that Begay requires looking at the conspiracy “alone” to determine whether the conspiracy was “violent.” “Seeing no violence or aggression in the act of agreement,” the Court concluded that it did not qualify as a “crime of violence.”
The Court noted that the South Carolina conspiracy statute under which Whitson was previously convicted does not require an overt act. Further, the “agreement” that constitutes a conspiracy is not, without more, violent or aggressive. The Court rejected the Fourth Circuit’s contrary holding that a conspiracy cannot be divorced from its violent objective, and that a conspiracy increases the likelihood of violence. The Court held that Begay requires looking at the conspiracy “alone” to determine whether the conspiracy was “violent.” “Seeing no violence or aggression in the act of agreement,” the Court concluded that it did not qualify as a “crime of violence.”
Wednesday, February 24, 2010
Phillips: Rule 35(a) deadline applies to 3582(c)(2) resentencings
In U.S. v. Phillips, No. 08-17248 (Feb. 23, 2010), the Court held that the seven-day deadline for correction of sentence under Fed. R. Crim. P. 35(a) [now 14-days, as of Dec. 1, 2009] applies to sentences imposed in response to a motion to reduce sentence under 18 U.S.C. § 3582(c)(2). Because the 7-day deadline is jurisdictional, the district court did not have jurisdiction to consider the government’s motion for reconsideration, which was filed more than 7-days after the court resentenced the defendant under § 3582(c)(2). Consequently, the Court vacated the amended sentence and remanded the case with instructions to reimpose the originally (defense-favorable, though legally incorrect) § 3582(c)(2) sentence.
The Court rejected the government’s argument that Rule 35(a) did not apply to § 3582(c)(2) resentencings. The Court noted that while § 3582(c)(2) proceedings are not the same as the original sentencing, the court is still “sentencing.” Further, § 3582 expressly prohibits modification of sentence after it is entered except under specified conditions – not present in this case.
The Court rejected the government’s argument that Rule 35(a) did not apply to § 3582(c)(2) resentencings. The Court noted that while § 3582(c)(2) proceedings are not the same as the original sentencing, the court is still “sentencing.” Further, § 3582 expressly prohibits modification of sentence after it is entered except under specified conditions – not present in this case.
Wednesday, February 17, 2010
Duran: Suitcase Scandal Foreign Agent Conviction Affirmed
In United States v. Duran, No. 09-11446 (Feb. 16, 2010), the Court affirmed the convictions of a Venezuelan citizen for acting as an agent of a foreign organization, without prior notification of the Attorney General, in violation of 18 U.S.C. §§ 371 and 951.
The case arose out of the “Suitcase Scandal” involving the seizure of $800,000 in cash from a Venezuelan entering Argentina, cash intended, it was speculated, for the presidential candidate Cristina Fernandez de Kirchner. Duran, acting on behalf of Venezuela, had meetings in Miami in an effort to conceal responsibility for the $800,000.
The Court rejected Duran’s argument that the government had to prove that he had knowledge of the foreign agent registration requirement. The failure to register offense is a general intent offense, which does not require proof of actual knowledge. The Court also rejected the argument that the statute only punishes conduct that related to espionage, pointing out that the registration requirement applies regardless of the activity at issue, so long as it is on behalf of a foreign government.
The Court rejected the argument that Duran should have been allowed to present evidence of his ignorance of the registration requirement, because knowledge of the requirement is not an element of the offense.
The Court also rejected Duran’s argument that statements showing his lack of intent to act as an agent of Venezuela should have been admitted, finding them not sufficiently probative to constitute reversible error.
The Court rejected Duran’s 404(b) challenge to the admission of evidence of his giving kickbacks to Venezuelan government, finding that the evidence showed Duran’s intent and motive. Further, the evidence was subject to a limiting instruction. In addition, the evidence was admissible to rebut Duran’s entrapment defense.
The case arose out of the “Suitcase Scandal” involving the seizure of $800,000 in cash from a Venezuelan entering Argentina, cash intended, it was speculated, for the presidential candidate Cristina Fernandez de Kirchner. Duran, acting on behalf of Venezuela, had meetings in Miami in an effort to conceal responsibility for the $800,000.
The Court rejected Duran’s argument that the government had to prove that he had knowledge of the foreign agent registration requirement. The failure to register offense is a general intent offense, which does not require proof of actual knowledge. The Court also rejected the argument that the statute only punishes conduct that related to espionage, pointing out that the registration requirement applies regardless of the activity at issue, so long as it is on behalf of a foreign government.
The Court rejected the argument that Duran should have been allowed to present evidence of his ignorance of the registration requirement, because knowledge of the requirement is not an element of the offense.
The Court also rejected Duran’s argument that statements showing his lack of intent to act as an agent of Venezuela should have been admitted, finding them not sufficiently probative to constitute reversible error.
The Court rejected Duran’s 404(b) challenge to the admission of evidence of his giving kickbacks to Venezuelan government, finding that the evidence showed Duran’s intent and motive. Further, the evidence was subject to a limiting instruction. In addition, the evidence was admissible to rebut Duran’s entrapment defense.
Tuesday, February 09, 2010
Arnold: Granting Habeas Relief based on Brady violation
In Arnold v. Sec. Dep’t of Corrections, No. 09-11911 (Feb. 8, 2010), the Court adopted the opinion of the district court in the Middle District of Florida granting habeas relief to a Florida inmate who alleged a Brady violation based on undisclosed criminal activity by the police officer who was a primary investigator in his own case.
The district court opinion found no procedural default: it recognized that Arnold’s federal petition “slightly expanded” upon his post-conviction state claims, but the two were “the same Brady claim.”
The opinion rejected the State’s argument that, since the prosecution itself was, like Arnold, unaware of the police officer’s corrupt activities, it could not deemed to have “suppressed” this evidence. The opinion noted that the police officer was part of the “prosecution team,” and therefore his own concealment of his activities sufficed for purposes of establishing a Brady violation. Moreover, impeachment of the police officer based on his activities could have changed the outcome of the trial, because the officer testified against Arnold and provided vital identification testimony. The opinion rejected the argument that the impeachment evidence would not have been admissible, pointing out that it might actually have been unnecessary given the State’s admission that, had it known of the police officer’s activities, it would not have called him as a witness.
The district court opinion found no procedural default: it recognized that Arnold’s federal petition “slightly expanded” upon his post-conviction state claims, but the two were “the same Brady claim.”
The opinion rejected the State’s argument that, since the prosecution itself was, like Arnold, unaware of the police officer’s corrupt activities, it could not deemed to have “suppressed” this evidence. The opinion noted that the police officer was part of the “prosecution team,” and therefore his own concealment of his activities sufficed for purposes of establishing a Brady violation. Moreover, impeachment of the police officer based on his activities could have changed the outcome of the trial, because the officer testified against Arnold and provided vital identification testimony. The opinion rejected the argument that the impeachment evidence would not have been admissible, pointing out that it might actually have been unnecessary given the State’s admission that, had it known of the police officer’s activities, it would not have called him as a witness.
Patterson: Intended Loss Measured by Defendant's "Ambition"
In U.S. v. Patterson, No. 09-13354 (Feb. 8, 2010), the Court found no plain error in a calculation of “loss” for sentencing enhancement purposes under the Guidelines that resulted in dollar amount twice as large as the amount of restitution.
The Court noted that “loss” encompasses “actual loss,” or “intended loss,” whichever is greater. In calculating “intended loss,” the sentencing court uses the “reasonable mathematical limit” of an offender’s scheme; “A criminal pays the price for the ambition of his acts, not their thoroughness.” “Restitution, on the other hand, must be based on the amount of loss actually caused by the defendant’s conduct.” Consequently, the law does not require “a simple symmetry between loss and restitution.”
The Court declined to reach Patterson’s ineffective assistance of counsel claim, based on the failure to object to the sentence, noting that § 2255 is the “preferred means” for bringing such claims.
The Court noted that “loss” encompasses “actual loss,” or “intended loss,” whichever is greater. In calculating “intended loss,” the sentencing court uses the “reasonable mathematical limit” of an offender’s scheme; “A criminal pays the price for the ambition of his acts, not their thoroughness.” “Restitution, on the other hand, must be based on the amount of loss actually caused by the defendant’s conduct.” Consequently, the law does not require “a simple symmetry between loss and restitution.”
The Court declined to reach Patterson’s ineffective assistance of counsel claim, based on the failure to object to the sentence, noting that § 2255 is the “preferred means” for bringing such claims.
Friday, February 05, 2010
Green: Counsel Ineffective, But not prejudicially so
In Green v. Nelson, No. 08-11212 (Feb. 4, 2010), the Court granted partial habeas relief to a Georgia inmate convicted of aggravated sodomy and rape.
The Court agreed with Green that his trial counsel was ineffective for failing to move to suppress blood and DNA evidence on the ground that this evidence was obtained based on a false affidavit. The affidavit did contain materially false information; trial counsel did not make a strategic decision not to suppress the evidence, but failed to realize that the affidavit was false. However, the ineffectiveness did not prejudice Green, because other correct information in the affidavit would have sufficed to establish probable cause for the search for blood and DNA evidence.
Turning to the sufficiency of the evidence of the aggravated sodomy, the Court agreed with Green that there was insufficient evidence to support this conviction. Green was charged with having placed his penis in the anus of his victim. However, the Court found no evidence of this contact.
The Court agreed with Green that his trial counsel was ineffective for failing to move to suppress blood and DNA evidence on the ground that this evidence was obtained based on a false affidavit. The affidavit did contain materially false information; trial counsel did not make a strategic decision not to suppress the evidence, but failed to realize that the affidavit was false. However, the ineffectiveness did not prejudice Green, because other correct information in the affidavit would have sufficed to establish probable cause for the search for blood and DNA evidence.
Turning to the sufficiency of the evidence of the aggravated sodomy, the Court agreed with Green that there was insufficient evidence to support this conviction. Green was charged with having placed his penis in the anus of his victim. However, the Court found no evidence of this contact.
Holmes: Sufficient 1028A evidence
In U.S. v. Holmes, No. 09-14035 (Feb. 4, 2010), the Court rejected a sufficiency of the evidence challenge to a conviction of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The defendant argued that there was insufficient evidence that she knew that Julie Ann Overton, the person whose identity Holmes fraudulently used, was an “actual person.”
The Court noted that the government presented evidence of the rigorous identification processes to which the personal information Holmes submitted about Overton was subjected. Holmes’ willingness to subject the personal information to such scrutiny established that Holmes knew, all along, that the information belonged to a real person. Further, Holmes would have known Overton’s actual existence from the repeated successful use of her personal information to obtain a passport, a driver’s licence, and identification cards.
The Court noted that the government presented evidence of the rigorous identification processes to which the personal information Holmes submitted about Overton was subjected. Holmes’ willingness to subject the personal information to such scrutiny established that Holmes knew, all along, that the information belonged to a real person. Further, Holmes would have known Overton’s actual existence from the repeated successful use of her personal information to obtain a passport, a driver’s licence, and identification cards.
Thursday, February 04, 2010
Jules: 3582(c)(2) Requires Advance Notice of New Information
In U.S. v. Jules, No. 08-13629 (Feb. 2, 2010), the Court held that a district court that intends to rely on new information in deciding a motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) must give the defendant an opportunity to respond to the new information.
Prior to Jules’ § 3582(c)(2) resentencing, the district court received information from Probation about Jules’ alleged marijuana use while incarcerated. Based on this information, the district court denied a sentence reduction. Jules was not given any opportunity to respond to the new information.
On appeal, the Court noted that the Guidelines state that parties should be given an adequate opportunity to present information regarding sentencing factors in dispute. Further, the Court’s own caselaw requires an adequate notice and opportunity to contest facts at sentencing. The Court also relied on caselaw in two other Circuits which recognize a defendant’s right to notice of new facts on which the district court relies in a 3582(c)(2) determination. The Court distinguished caselaw in other Circuits on which the government relied.
The Court noted that on remand, the district court could hold a hearing on the new information about Jules, or may instead allow the parties to contest new information in writing.
Prior to Jules’ § 3582(c)(2) resentencing, the district court received information from Probation about Jules’ alleged marijuana use while incarcerated. Based on this information, the district court denied a sentence reduction. Jules was not given any opportunity to respond to the new information.
On appeal, the Court noted that the Guidelines state that parties should be given an adequate opportunity to present information regarding sentencing factors in dispute. Further, the Court’s own caselaw requires an adequate notice and opportunity to contest facts at sentencing. The Court also relied on caselaw in two other Circuits which recognize a defendant’s right to notice of new facts on which the district court relies in a 3582(c)(2) determination. The Court distinguished caselaw in other Circuits on which the government relied.
The Court noted that on remand, the district court could hold a hearing on the new information about Jules, or may instead allow the parties to contest new information in writing.
Friday, January 29, 2010
Lott: Habeas Petitioner Not Entitled to COA
In Lott v. Florida Attorney General, No. 09-14196 (Jan. 25, 2010), the Court held that a habeas petitioner had not made a substantial showing of the denial of a constitutional right, and therefore was not entitled to a certificate of appealability from the denial of a habeas petition.
Lott claimed that his counsel was ineffective for failing to put on an alibi defense. However, counsel investigated the alibi defense and found no support for it. A potential alibi witness declined to testify because she would not “lie for Lott anymore.” Moreover, Lott himself voluntarily chose not to testify in support of his alibi defense.
Lott claimed that his counsel was ineffective for failing to put on an alibi defense. However, counsel investigated the alibi defense and found no support for it. A potential alibi witness declined to testify because she would not “lie for Lott anymore.” Moreover, Lott himself voluntarily chose not to testify in support of his alibi defense.
Arnaiz: Habeas Not a Vehicle For Challenging Restitution
In Arnaiz v. Warden, No. 07-12649 (Jan. 26, 2010), the Court held that the writ of habeas corpus under 28 U.S.C. § 2241 does not encompass claims that challenge the restitution portion of a judgment of conviction. The Court reasoned that habeas is about release from custody. A challenge to restitution is not related to custody. The Court noted that offenders who are not sentenced to a term of incarceration are not entitled to challenge orders of restitution, and saw no reason to treat Arnaiz differently simply because his judgment subjected him to both incarceration and restitution.
Thursday, January 28, 2010
Thompson: 2254 Petition Timely
In Thompson v. Sec. Dep’t of Corrections, No. 08-10540 (Jan. 27, 2010), the Court held that a § 2254 habeas petition was timely filed, and reversed the dismissal of the petition.
The timeliness of Thompson’s federal habeas petition turned on whether his prior “habeas” filings in Florida State courts were “properly filed” for the purpose of tolling the one-year statute of limitations of AEDPA. The State argued that they were not properly filed because Florida law requires such challenges to be made in a motion under Fla. R. Crim. P. 3.850, not in a “habeas petition.” The “properly filed” inquiry, however, goes to whether a court has “initial jurisdiction” over the filing. Here, Thompson “invoked the wrong statutory vehicle” but he filed in the “proper courts.” The State argued that Thompson filed in the wrong County. But the Court rejected this argument, because it went to a condition to obtaining relief, as opposed to a condition to filing.
The Court also rejected the argument that the state habeas petition should not toll the AEDPA time-limit because it incorrectly attacked his convictions, rather than challenging “unlawful detention.” The Court pointed out that Thompson alleged “that he was being illegally detained based on his unlawful convictions.”
The timeliness of Thompson’s federal habeas petition turned on whether his prior “habeas” filings in Florida State courts were “properly filed” for the purpose of tolling the one-year statute of limitations of AEDPA. The State argued that they were not properly filed because Florida law requires such challenges to be made in a motion under Fla. R. Crim. P. 3.850, not in a “habeas petition.” The “properly filed” inquiry, however, goes to whether a court has “initial jurisdiction” over the filing. Here, Thompson “invoked the wrong statutory vehicle” but he filed in the “proper courts.” The State argued that Thompson filed in the wrong County. But the Court rejected this argument, because it went to a condition to obtaining relief, as opposed to a condition to filing.
The Court also rejected the argument that the state habeas petition should not toll the AEDPA time-limit because it incorrectly attacked his convictions, rather than challenging “unlawful detention.” The Court pointed out that Thompson alleged “that he was being illegally detained based on his unlawful convictions.”
Caraballo: Biographical Information In I-213 Immigration Forms Do Not Violate Confrontation Clause
In U.S. v. Caraballo, No. 09-10428 (Jan. 27, 2010), the Court affirmed alien smuggling convictions.
The Court found probable cause for the defendant’s arrest, and affirmed denial of the motion to suppress: Law enforcement observed a fishing boat displaying inconsistent types of fishing rods; two persons aboard were nervously scanning the shoreline; once at the boat ramp the persons were moving as quickly as possible to load the boat onto a truck; they gave inconsistent answers to questions; and they appeared “very nervous.” Further, the agents were justified in undertaking a “protective sweep” of the boat (without a warrant): the conduct of the persons questioned by law enforcement gave reason to believe that there may have been another person on board (eleven illegal aliens were found, stowed away together in a cabin). In addition, under Florida law, an officer does not need probable cause to stop a boat to check for fishing permits, and opening a cabin door falls under that authorization.
The Court rejected the argument that the admission of biographical information regarding the eleven illegal aliens from the I-213 Immigration Forms violated the hearsay rule and the Confrontation Clause’s prohibition on the admission of testimonial statements. The Court found that “the basic biographical information recorded on the I-213 Form is routinely requested from every alien entering the United States.” It mattered not, therefore, that the information was later used in a criminal prosecution. The primary purpose of the questioning of the aliens is to elicit biographical information required of every foreign entrant. Moreover, any error in admitting the I-213s was harmless because the presence of eleven people, only one of whom could speak English, crammed into the closed cabin of a boat in August in South Florida, coupled with the cooperating witnesses’ testimony that they knew they were engaging in illegal smuggling, established alienage.
Turning to sentencing, the Court affirmed the “reckless endangerment” enhancement. “Caraballo smuggled eleven aliens on a five-and-one-half-hour open water voyage from the Bahamas to Miami in August in a small and enclosed cabin, on a twenty-five-foot fishing boat that was not equipped with enough life jackets.”
The Court also affirmed a supervisory role sentence enhancement, noting evidence that Caraballo recruited the others.
Finally, the Court affirmed the denial of an acceptance of responsibility sentence reduction, pointing out that Caraballo contested his guilt at trial, and maintained that he was an “innocent bystander.”
The Court found probable cause for the defendant’s arrest, and affirmed denial of the motion to suppress: Law enforcement observed a fishing boat displaying inconsistent types of fishing rods; two persons aboard were nervously scanning the shoreline; once at the boat ramp the persons were moving as quickly as possible to load the boat onto a truck; they gave inconsistent answers to questions; and they appeared “very nervous.” Further, the agents were justified in undertaking a “protective sweep” of the boat (without a warrant): the conduct of the persons questioned by law enforcement gave reason to believe that there may have been another person on board (eleven illegal aliens were found, stowed away together in a cabin). In addition, under Florida law, an officer does not need probable cause to stop a boat to check for fishing permits, and opening a cabin door falls under that authorization.
The Court rejected the argument that the admission of biographical information regarding the eleven illegal aliens from the I-213 Immigration Forms violated the hearsay rule and the Confrontation Clause’s prohibition on the admission of testimonial statements. The Court found that “the basic biographical information recorded on the I-213 Form is routinely requested from every alien entering the United States.” It mattered not, therefore, that the information was later used in a criminal prosecution. The primary purpose of the questioning of the aliens is to elicit biographical information required of every foreign entrant. Moreover, any error in admitting the I-213s was harmless because the presence of eleven people, only one of whom could speak English, crammed into the closed cabin of a boat in August in South Florida, coupled with the cooperating witnesses’ testimony that they knew they were engaging in illegal smuggling, established alienage.
Turning to sentencing, the Court affirmed the “reckless endangerment” enhancement. “Caraballo smuggled eleven aliens on a five-and-one-half-hour open water voyage from the Bahamas to Miami in August in a small and enclosed cabin, on a twenty-five-foot fishing boat that was not equipped with enough life jackets.”
The Court also affirmed a supervisory role sentence enhancement, noting evidence that Caraballo recruited the others.
Finally, the Court affirmed the denial of an acceptance of responsibility sentence reduction, pointing out that Caraballo contested his guilt at trial, and maintained that he was an “innocent bystander.”
Tuesday, January 26, 2010
Marquez: Extradition Arguments Not Raised Pre-Trial Are Waived
In U.S. v. Marquez, No. 08-12588 (Jan. 22, 2010), the Court affirmed the conviction of a defendant convicted of a RICO conspiracy in violation of 18 U.S.C. § 1962(c).
Marquez argued his extradition to the United States violated the “rule of specialty” and the “rule of dual criminality.” The Court pointed out, however, that Marquez failed to raise these objections prior to trial, as required by Fed. R. Crim. P. 12(b)(3)(A), (c). Because a challenge to extradition is a challenge to the means by which personal jurisdiction is obtained – not a matter of subject matter jurisdiction – it is waivable. Here, it was waived. Consequently, Marquez waived his “rule of specialty” and “dual criminality” challenges to his conviction.
Marquez argued his extradition to the United States violated the “rule of specialty” and the “rule of dual criminality.” The Court pointed out, however, that Marquez failed to raise these objections prior to trial, as required by Fed. R. Crim. P. 12(b)(3)(A), (c). Because a challenge to extradition is a challenge to the means by which personal jurisdiction is obtained – not a matter of subject matter jurisdiction – it is waivable. Here, it was waived. Consequently, Marquez waived his “rule of specialty” and “dual criminality” challenges to his conviction.
Bernal: No Improper Prosecution Bolstering
In U.S. v. Bernal-Benitez, the Court affirmed the convictions and sentences of defendants convicted of attempted cocaine-trafficking.
The Court rejected the argument that the evidence was insufficient because the government failed to establish that the cocaine “was actually cocaine,” noting that the government only had to prove that Bernal intended to obtain cocaine.
The Court also rejected Batson challenges to the government’s strike of a black juror, finding that the lower court could properly rely on the justification that the struck juror was “less educated” than the others in the venire.
The Court also rejected a challenge to the prosecutor’s improper “bolstering” arguments. The Court found that when the prosecutors asked why the FBI agents would lie and “put their badges on the line” when they testified, they were “merely acknowledging that adverse legal consequences would flow from lying under oath.”
The Court also rejected the argument that the prosecutors shifted the burden of proof when they argued that “nobody has submitted any evidence . . . to suggest to you why federal agents with years of experience [would lie].” The arguments focused on defense counsel’s ability rather than obligation to introduce evidence to support their credibility arguments.
The Court rejected the argument that one co-defendant’s Miranda rights were violated. The Court noted that even though the defendant had not signed his Miranda waiver form, this was not conclusive evidence. The district court therefore justifiably credited the agents’ testimony that the defendant had orally waived his Miranda rights.
The Court also rejected the defendant’s challenge to the voluntariness of his statement. The defendant pointed out that his written statement was in English, a language he did not speak. The Court, however, credited the agents’ testimony that the statement was translated for him.
Turning to sentencing, the Court rejected two defendants’ challenges to the denial of a minor role sentence reduction. The defendants pointed out that they remained in the vehicle while the drug buy was being negotiated, and had played no role in its planning. Further, they only brought cash in the amounts of $3,000 and $8,000 to a meeting to buy $35,000 of drugs. The Court found that all defendants “were engaged in a joint enterprise and that contributing $3,000 or $8,000 to a $35,000 drug buy was significant involvement.”
The Court rejected the argument that the evidence was insufficient because the government failed to establish that the cocaine “was actually cocaine,” noting that the government only had to prove that Bernal intended to obtain cocaine.
The Court also rejected Batson challenges to the government’s strike of a black juror, finding that the lower court could properly rely on the justification that the struck juror was “less educated” than the others in the venire.
The Court also rejected a challenge to the prosecutor’s improper “bolstering” arguments. The Court found that when the prosecutors asked why the FBI agents would lie and “put their badges on the line” when they testified, they were “merely acknowledging that adverse legal consequences would flow from lying under oath.”
The Court also rejected the argument that the prosecutors shifted the burden of proof when they argued that “nobody has submitted any evidence . . . to suggest to you why federal agents with years of experience [would lie].” The arguments focused on defense counsel’s ability rather than obligation to introduce evidence to support their credibility arguments.
The Court rejected the argument that one co-defendant’s Miranda rights were violated. The Court noted that even though the defendant had not signed his Miranda waiver form, this was not conclusive evidence. The district court therefore justifiably credited the agents’ testimony that the defendant had orally waived his Miranda rights.
The Court also rejected the defendant’s challenge to the voluntariness of his statement. The defendant pointed out that his written statement was in English, a language he did not speak. The Court, however, credited the agents’ testimony that the statement was translated for him.
Turning to sentencing, the Court rejected two defendants’ challenges to the denial of a minor role sentence reduction. The defendants pointed out that they remained in the vehicle while the drug buy was being negotiated, and had played no role in its planning. Further, they only brought cash in the amounts of $3,000 and $8,000 to a meeting to buy $35,000 of drugs. The Court found that all defendants “were engaged in a joint enterprise and that contributing $3,000 or $8,000 to a $35,000 drug buy was significant involvement.”
Thursday, January 14, 2010
Reed: Not Ineffective To Agree Not to Put On Evidence
In Reed v. Sec. Dep’t of Corrections, No. 09-10059 (Jan. 11, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1986 murder.
The Court rejected the argument that counsel was ineffective at the penalty phase when he agreed with the prosecutor not to put on any mitigating evidence in exchange for the prosecutor’s agreement not to present aggravating evidence. The Court noted that counsel had done a reasonable investigation of Reed’s background, that the mitigating evidence would not have changed the outcome, and that Reed himself had instructed counsel not to put on mitigating evidence. Moreover, Reed could not show that he suffered prejudice as a result of counsel’s decision, pointing out that evidence about Reed’s background that would have come in would have included “devastating” instances of his attacks on his grandmother.
The Court rejected the argument that counsel was ineffective at the penalty phase when he agreed with the prosecutor not to put on any mitigating evidence in exchange for the prosecutor’s agreement not to present aggravating evidence. The Court noted that counsel had done a reasonable investigation of Reed’s background, that the mitigating evidence would not have changed the outcome, and that Reed himself had instructed counsel not to put on mitigating evidence. Moreover, Reed could not show that he suffered prejudice as a result of counsel’s decision, pointing out that evidence about Reed’s background that would have come in would have included “devastating” instances of his attacks on his grandmother.
Wednesday, January 13, 2010
Ward: Bailiff-Juror Communication Requires New Penalty Phase Hearing
In Ward v. Hall, No. 07-11360 (Jan. 4, 2010), the Court granted habeas relief to a Georgia death-row inmate based on improper bailiff-jury communications during the penalty phase.
During jury deliberations in the penalty phase, the jurors were having difficulty imposing the death penalty, and three jurors asked the bailiff whether life without parole was an option. See generally, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, 84 Fla. B. J. 9 (Jan. 2010). The bailiff responded that it was not an option. Under Georgia law, if the jury so inquires of the trial judge, the judge is required to inform the jury that it is not to consider the question of parole. “By advising that life without parole was not an option, the bailiff left the [false] impression that Ward could or would be released on parole if the jury sentenced him to life imprisonment.” The Court added: “We do not take lightly our decision to reverse a death sentence rendered eighteen years ago. Nevertheless the record establishes that the improper bailiff-juror communication violated Ward’s constitutional rights and prejudiced him. Accordingly he is entitled to a new penalty phase hearing.”
During jury deliberations in the penalty phase, the jurors were having difficulty imposing the death penalty, and three jurors asked the bailiff whether life without parole was an option. See generally, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, 84 Fla. B. J. 9 (Jan. 2010). The bailiff responded that it was not an option. Under Georgia law, if the jury so inquires of the trial judge, the judge is required to inform the jury that it is not to consider the question of parole. “By advising that life without parole was not an option, the bailiff left the [false] impression that Ward could or would be released on parole if the jury sentenced him to life imprisonment.” The Court added: “We do not take lightly our decision to reverse a death sentence rendered eighteen years ago. Nevertheless the record establishes that the improper bailiff-juror communication violated Ward’s constitutional rights and prejudiced him. Accordingly he is entitled to a new penalty phase hearing.”
Boyd: New mitigating evidence would not have changed outcome
In Boyd v. Allen, No. 07-14098 (Jan. 8, 2010), the Court (2-1) (Barkett, J., dissenting) reversed a grant of habeas relief to an Alabama inmate sentenced to death for two 1986 murders. The Court recognized that the inmate’s trial counsel were ineffective for failing at the penalty phase to present mitigating evidence based on Boyd’s troubled childhood. However, balancing this evidence de novo against the aggravating evidence against Boyd of the brutal nature of his murders, the Court found no reasonable probability that the mitigating evidence would have changed the outcome of the penalty phase of the proceedings.
Monday, January 11, 2010
White: Firearm Possession Prohibition on Domestic Violence Convicts Valid post-Heller
In U.S. v. White, No. 08-16010 (Jan. 11, 2010), the Court affirmed a conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence.
The Court rejected the argument that one police officer’s recollection that he smelled marijuana was not credible, because the other arresting officer did not recall a smell of marijuana. Because the testimony was credible, the smell gave the officer reasonable suspicion for further investigation – which led him to find a firearm. In addition, the officers were outnumbered by the persons they found in a car, after getting a complaint about loud music in a high crime area late at night, and the occupants of the car could not produce identification.
The Court also rejected the argument that White’s prior conviction did not qualify under the firearm possession statute. White had been convicted of conduct involving a dispute in which he tried to choke his live-in girlfriend. A dispute with a live-in girlfriend qualifies as a “domestic dispute.”
Finally, the Court rejected the argument that the Supreme Court’s recent decision in Heller, striking down Washington D.C.’s firearm ban, made unconstitutional the statute criminalizing firearm possession by a person convicted of domestic violence. The Court found that this statute was one of the “longstanding prohibitions” on firearm possession that Heller did not call into doubt.
The Court rejected the argument that one police officer’s recollection that he smelled marijuana was not credible, because the other arresting officer did not recall a smell of marijuana. Because the testimony was credible, the smell gave the officer reasonable suspicion for further investigation – which led him to find a firearm. In addition, the officers were outnumbered by the persons they found in a car, after getting a complaint about loud music in a high crime area late at night, and the occupants of the car could not produce identification.
The Court also rejected the argument that White’s prior conviction did not qualify under the firearm possession statute. White had been convicted of conduct involving a dispute in which he tried to choke his live-in girlfriend. A dispute with a live-in girlfriend qualifies as a “domestic dispute.”
Finally, the Court rejected the argument that the Supreme Court’s recent decision in Heller, striking down Washington D.C.’s firearm ban, made unconstitutional the statute criminalizing firearm possession by a person convicted of domestic violence. The Court found that this statute was one of the “longstanding prohibitions” on firearm possession that Heller did not call into doubt.
Wednesday, December 23, 2009
Lopez: "Help" Instruction ok in Alien Smuggling case
In U.S. v. Lopez, No. 08-13605 (Dec. 22, 2009) (2-1) (Barkett, J., dissenting in part), the Court affirmed convictions for encouraging or inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I ) and § 1324(a)(1)(A)(iv).
During deliberations, the jury asked what “encourage” meant. Over defense objection, the district court instructed that encourage means, inter alia, “to help.” Affirming this instruction, the Court noted that dictionary definitions of “encourage” included “help.” The Court rejected the argument that this interpretation would render other portions of § 1324 superfluous, because they criminalized bringing an alien into the United States, an offense which would be redundant if helping an alien enter the United States was already a crime. The Court noted that the different subsections of the statute contained different elements, with one referencing bringing an alien “at a place other than a designated port of entry,” and another refers only to the mere act of bringing an alien to the United States.
The Court rejected the argument that the supplemental jury instruction violated Fed. R. Crim. P. 30 by contradicting an earlier jury instruction. The Court noted the discretion of district courts to expand upon initial jury instructions when a jury question arises.
Finally, the Court rejected the argument that the alien smuggling statute requires a showing that the defendant knew that an alien was inadmissible at the time he boarded the boat. The Court found no such requirement in the statute.
During deliberations, the jury asked what “encourage” meant. Over defense objection, the district court instructed that encourage means, inter alia, “to help.” Affirming this instruction, the Court noted that dictionary definitions of “encourage” included “help.” The Court rejected the argument that this interpretation would render other portions of § 1324 superfluous, because they criminalized bringing an alien into the United States, an offense which would be redundant if helping an alien enter the United States was already a crime. The Court noted that the different subsections of the statute contained different elements, with one referencing bringing an alien “at a place other than a designated port of entry,” and another refers only to the mere act of bringing an alien to the United States.
The Court rejected the argument that the supplemental jury instruction violated Fed. R. Crim. P. 30 by contradicting an earlier jury instruction. The Court noted the discretion of district courts to expand upon initial jury instructions when a jury question arises.
Finally, the Court rejected the argument that the alien smuggling statute requires a showing that the defendant knew that an alien was inadmissible at the time he boarded the boat. The Court found no such requirement in the statute.
Randolph: Juror Death Views Justified Dismissal
In Randolph v. McNeil, No. 08-12854 (Dec. 23, 2009), the Court affirmed the denial of habeas relief to a Florida death row inmate, seeing no reversible error in the District Court’s 160-page order. The Court rejected Randolph’s ineffective of assistance of counsel claim, agreeing that there was no reasonable probability that, but for his lawyer’s lack of investigation into his history would have changed the outcome. The Court also rejected the argument that a juror who answered questions inconsistently about her views on the death penalty was improperly struck from the jury, finding no clear and convincing evidence to reverse the State court finding that the juror was not credible when she said she could impose the death penalty.
Banjoko: Stow away offense does not require intent to enter U.S.
In U.S. v. Banjoko, No. 09-11402 (Dec. 23, 2009), the Court held that 18 U.S.C. §2199, which criminalizes stowing away on a vessel that enters the United States, does not require proof of the defendant’s intent to enter the United States. The statute requires only proof of intent to “obtain transportation” from a vessel without consent.
The Court also rejected Banjoko’s argument that the offense does not apply to extraterritorial conduct, relying on the plain language of the statute.
The Court also rejected Banjoko’s argument that the offense does not apply to extraterritorial conduct, relying on the plain language of the statute.
Tuesday, December 22, 2009
Langston: 666 convictions reversed, and affirmed.
In U.S. v. Langston, No. 08-16356 (Dec. 22, 2009), the Court reversed some convictions but affirmed others for a former Executive Director of the Alabama Fire College convicted of embezzlement.
The Court found that, for some counts, Langston was not an agent of the State of Alabama, but instead an agent of the Alabama Fire College. The Court noted that Langston served at the pleasure of the Fire College Commission, not the State of Alabama. However, the Court upheld other convictions under 18 U.S.C. § 666, finding that Langston was an agent of the State in his capacity in the Alabama Poison Center.
The Court also rejected Langston’s argument that the district court should have given an “advice of counsel” defense instruction to the jury. The Court noted the absence of evidence that Langston actually relied on any legal opinion.
The Court affirmed Langston’s 125-month sentence. The Court noted that the sentence was 43-months below the Guideline range. The Court declined to “reweigh” the factors addressed by the district court. The Court also rejected a comparison to the sentence of another offender who cooperated with the government’s investigation, noting that “there is no unwarranted disparity when a cooperating defendant pleads guilty and receives a lesser sentence than a defendant who proceeds to trial.”
The Court found that, for some counts, Langston was not an agent of the State of Alabama, but instead an agent of the Alabama Fire College. The Court noted that Langston served at the pleasure of the Fire College Commission, not the State of Alabama. However, the Court upheld other convictions under 18 U.S.C. § 666, finding that Langston was an agent of the State in his capacity in the Alabama Poison Center.
The Court also rejected Langston’s argument that the district court should have given an “advice of counsel” defense instruction to the jury. The Court noted the absence of evidence that Langston actually relied on any legal opinion.
The Court affirmed Langston’s 125-month sentence. The Court noted that the sentence was 43-months below the Guideline range. The Court declined to “reweigh” the factors addressed by the district court. The Court also rejected a comparison to the sentence of another offender who cooperated with the government’s investigation, noting that “there is no unwarranted disparity when a cooperating defendant pleads guilty and receives a lesser sentence than a defendant who proceeds to trial.”
Monday, December 21, 2009
White: Right to Venue Waived
In U.S. v. White, No. 08-10702 (Dec. 21, 2009), the Court held that the defendant waived any constitutional objection to the district court’s sua sponte decision to change the venue of the case from the Southern District of Alabama to the Middle District of Alabama, when he waited until after he was convicted to object to venue. .
The Court noted that an objection to a change of venue, like most rights, can be waived unless timely asserted. Here, the defendant moved pre-trial for a change of division (not of district), and his motion demonstrated his awareness of his right to a venue where the offense allegedly took place. Thus, when the district court announced before trial that it was changing the venue of the case and the defendant failed to object, he waived his right to venue. His silence was construed as an implied waived.
The Court noted that an objection to a change of venue, like most rights, can be waived unless timely asserted. Here, the defendant moved pre-trial for a change of division (not of district), and his motion demonstrated his awareness of his right to a venue where the offense allegedly took place. Thus, when the district court announced before trial that it was changing the venue of the case and the defendant failed to object, he waived his right to venue. His silence was construed as an implied waived.
Thursday, December 17, 2009
English: ACA supervised release revocation may exceed State maximum
In U.S. v. English, No. 09-12788 (Dec. 16, 2009), the Court held that a defendant who was convicted under the Assimilative Crimes Act (ACA), and who has served the state statutory maximum term of imprisonment, may be sentenced to further incarceration upon revocation of supervised release.
The defendant was convicted under ACA of DUI at a Naval Air Station in Florida. The Florida maximum punishment for this offense was five years’ incarceration. His sentence was five years, followed by three years of supervised release. After serving the sentence of incarceration, while on supervised release, English violated his conditions of supervised release, and after his revocation hearing the court imposed a 24-month term of incarceration. English appealed, claiming that the 24-month additional sentence exceeded the statutory five-year maximum for his Florida DUI offense.
The Court noted that sentencing courts are authorized to impose a term of supervised release under ACA, even if this term is in addition to the state statutory maximum. If a defendant violates supervised release, the sentencing court has the same authority that it has in non-ACA supervised release violations: to order additional incarceration in order to provide the deterrent mechanism intended by Congress. If a conflict exists between State and Federal law, the state law is not assimilated. Federal sentencing policy regarding supervised release overrides conflicting state provisions regarding maximum terms of incarceration.
The defendant was convicted under ACA of DUI at a Naval Air Station in Florida. The Florida maximum punishment for this offense was five years’ incarceration. His sentence was five years, followed by three years of supervised release. After serving the sentence of incarceration, while on supervised release, English violated his conditions of supervised release, and after his revocation hearing the court imposed a 24-month term of incarceration. English appealed, claiming that the 24-month additional sentence exceeded the statutory five-year maximum for his Florida DUI offense.
The Court noted that sentencing courts are authorized to impose a term of supervised release under ACA, even if this term is in addition to the state statutory maximum. If a defendant violates supervised release, the sentencing court has the same authority that it has in non-ACA supervised release violations: to order additional incarceration in order to provide the deterrent mechanism intended by Congress. If a conflict exists between State and Federal law, the state law is not assimilated. Federal sentencing policy regarding supervised release overrides conflicting state provisions regarding maximum terms of incarceration.
Wednesday, December 16, 2009
Griffey: Federal govt need not give SORNA notice
In U.S. v. Griffey, No. 09-11696 (Dec. 15, 2009), the Court affirmed a defendant’s conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA).
Citing U.S. v. Brown, the Court rejected claims that SORNA did not apply to Griffey because Alabama had not implemented this statute at the time he failed to register as a sex offender. The Court rejected the argument that the federal government must notify a person convicted of a sex offense of his legal duty to register under SORNA. The Court pointed out that the defendant admitted that he knew of his duty to register, and this knowledge sufficed to establish a knowing violation of the statute.
Citing U.S. v. Brown, the Court rejected claims that SORNA did not apply to Griffey because Alabama had not implemented this statute at the time he failed to register as a sex offender. The Court rejected the argument that the federal government must notify a person convicted of a sex offense of his legal duty to register under SORNA. The Court pointed out that the defendant admitted that he knew of his duty to register, and this knowledge sufficed to establish a knowing violation of the statute.
Monday, December 07, 2009
Cummings: No Ineffective Assistance Where Defendant Wanted No Mitigation Presented
In Cummings v. Sec. Dep’t of Corrections, No. 09-12416 (Dec. 4, 2009), the Court reversed a grant of federal habeas corpus to a Florida inmate sentenced to death for the 1991 murder of his girlfriend. The Court concluded that counsel was not ineffective for investigate and present more mitigation evidence at the sentencing phase.
The Court pointed out that the defendant “clearly, consistently, and adamantly insisted tht he wanted no mitigation evidence presented in the penalty phase.” Counsel did not “blindly follow” the client’s wishes, but moved for a competency evaluation. Counsel investigated the defendant’s prison records. In addition, to maintain the trust that existed between the client and him, counsel ultimately decided to abide by the client’s instructions regarding the mitigating evidence, specifically his wish that he did not want his family testifying. In addition, counsel was a veteran criminal defense, giving rise to a presumption of reasonable performance. Counsel could not be faulted for not putting on evidence of Cumming’s drug use, his family’s criminal history, or his antisocial personality disorder, not only because it was inconsistent with his chosen strategy, but also because it would have had a negative effect on the jury.
Finally, even if counsel’s performance were deemed deficient, Cummings failed to show that he was prejudiced because it is clear that he would not have authorized counsel to present mitigating evidence. In addition, even had the jury heard the mitigating evidence, there is no reasonable probability that the outcome would have been different, in light of the aggravating circumstances, which included Cummings’ three prior convictions for violent felonies, and the heinous circumstances of his murder.
The Court pointed out that the defendant “clearly, consistently, and adamantly insisted tht he wanted no mitigation evidence presented in the penalty phase.” Counsel did not “blindly follow” the client’s wishes, but moved for a competency evaluation. Counsel investigated the defendant’s prison records. In addition, to maintain the trust that existed between the client and him, counsel ultimately decided to abide by the client’s instructions regarding the mitigating evidence, specifically his wish that he did not want his family testifying. In addition, counsel was a veteran criminal defense, giving rise to a presumption of reasonable performance. Counsel could not be faulted for not putting on evidence of Cumming’s drug use, his family’s criminal history, or his antisocial personality disorder, not only because it was inconsistent with his chosen strategy, but also because it would have had a negative effect on the jury.
Finally, even if counsel’s performance were deemed deficient, Cummings failed to show that he was prejudiced because it is clear that he would not have authorized counsel to present mitigating evidence. In addition, even had the jury heard the mitigating evidence, there is no reasonable probability that the outcome would have been different, in light of the aggravating circumstances, which included Cummings’ three prior convictions for violent felonies, and the heinous circumstances of his murder.
Friday, November 20, 2009
Hunter: Mental Retardation Tolls AEDPA deadline
In Hunter v. Ferrell, No. 08-16597 (Nov. 18, 2009), the Court held that despite the fact that an Alabama inmate missed the deadline for filing a federal habeas petition by eight years, because of his mental retardation he was entitled to an evidentiary hearing on whether the filing deadline should be equitably tolled on account of his retardation.
The Court noted that Hunter alleged that his mental retardation prevented him from timely filing his habeas petition. Moreover, the record supported this claim. First, his prior pro se filings were filed with the assistance of prison law clerks. Second, a mental health expert’s report “strongly suggests that Hunter’s well-documented, irreversible mental retardation is severe enough that Hunter, by himself, is not able to understand and comply with AEDPA’s filing requirements and deadlines.”
The Court noted that Hunter alleged that his mental retardation prevented him from timely filing his habeas petition. Moreover, the record supported this claim. First, his prior pro se filings were filed with the assistance of prison law clerks. Second, a mental health expert’s report “strongly suggests that Hunter’s well-documented, irreversible mental retardation is severe enough that Hunter, by himself, is not able to understand and comply with AEDPA’s filing requirements and deadlines.”
Monday, November 09, 2009
Hammond: Death penalty affirmed for Georgia inmate
In Hammond v. Hall, No. 08-11109 (Nov. 4, 2009) (Carnes, Marcus, Pryor), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1988 murder.
The Court rejected Hammond’s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults. The Court noted that this was not a record of prior convictions, nor “evidence.”
The Court also rejected Hammond’s request to have a shotgun tested in order to show that it was not the murder weapon. The Court noted that this request comes “years too late.”
The Court noted that an audiotape of witness testimony was suppressed, and that this audiotape might have shown that the witnesses disagreed about who had removed jewelry from the murder victim. But this discrepancy merely involved a “detail” in the evidence.
The Court also rejected the claim that the State failed to disclose the full scope of immunity of Hammond’s girlfriend, who was an accomplice in the charged murder and other Hammond crimes. The Court recognized that the failure to disclose a witness’ immunity requires a new trial if the witness is the State’s lead witness. But here there was other evidence against Hammond, and the jury knew at least of the witness immunity for the murder charge at issue.
Looking at the suppressed evidence as a whole, the Court concluded that “against the mountain of inculpatory evidence,” its confidence in the verdict was not undermined.
The Court rejected an ineffective assistance of counsel claim based on trial counsel’s failure to seek a mistrial during the sentencing phase of trial, when the prosecutor improperly warned the jury that if it did not sentence Hammond to death, he would someday be a free man. Under Georgia law, this improper argument triggers a right to a mistrial, but trial counsel instead accepted the trial court’s curative instruction. The Court deferred to the ruling of the Georgia courts that any ineffectiveness did not result in prejudice to Hammond, because of the aggravating circumstances and the trial court’s curative instruction. The Court found inadequate support in Supreme Court caselaw for defendant’s argument that the failure to obtain a mistrial is, of itself, prejudice. Further, the Georgia mistrial statute did not embody a constitutional right to not have the jury be aware of the possibility of parole if a death sentence is not imposed. Finally, the Court noted that the Georgia statute, by concealing truthful information about the defendant’s parole eligibility, does not make the sentencing process more fair or reliable.
The Court rejected Hammond’s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults. The Court noted that this was not a record of prior convictions, nor “evidence.”
The Court also rejected Hammond’s request to have a shotgun tested in order to show that it was not the murder weapon. The Court noted that this request comes “years too late.”
The Court noted that an audiotape of witness testimony was suppressed, and that this audiotape might have shown that the witnesses disagreed about who had removed jewelry from the murder victim. But this discrepancy merely involved a “detail” in the evidence.
The Court also rejected the claim that the State failed to disclose the full scope of immunity of Hammond’s girlfriend, who was an accomplice in the charged murder and other Hammond crimes. The Court recognized that the failure to disclose a witness’ immunity requires a new trial if the witness is the State’s lead witness. But here there was other evidence against Hammond, and the jury knew at least of the witness immunity for the murder charge at issue.
Looking at the suppressed evidence as a whole, the Court concluded that “against the mountain of inculpatory evidence,” its confidence in the verdict was not undermined.
The Court rejected an ineffective assistance of counsel claim based on trial counsel’s failure to seek a mistrial during the sentencing phase of trial, when the prosecutor improperly warned the jury that if it did not sentence Hammond to death, he would someday be a free man. Under Georgia law, this improper argument triggers a right to a mistrial, but trial counsel instead accepted the trial court’s curative instruction. The Court deferred to the ruling of the Georgia courts that any ineffectiveness did not result in prejudice to Hammond, because of the aggravating circumstances and the trial court’s curative instruction. The Court found inadequate support in Supreme Court caselaw for defendant’s argument that the failure to obtain a mistrial is, of itself, prejudice. Further, the Georgia mistrial statute did not embody a constitutional right to not have the jury be aware of the possibility of parole if a death sentence is not imposed. Finally, the Court noted that the Georgia statute, by concealing truthful information about the defendant’s parole eligibility, does not make the sentencing process more fair or reliable.
Thursday, November 05, 2009
Brown: SORNA provides adequate registration requirement notice
In U.S. v. Brown, No. 08-17244 (Nov. 5, 2009), the Court affirmed a conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), and the imposition of a sentence that included a life term of supervised release.
On plain error review, the Court rejected a challenge to the life term of supervised release was invalid. At his guilty plea colloquy, the court incorrectly told the defendant that he faced a maximum three-year term of supervised release. The PSI correctly stated the life term. The Court noted the error at the guilty plea colloquy was plain, but there was no prejudice because Brown did not establish that he would not have pled guilty had he known that the maximum supervised release term was life instead of three years.
The Court rejected the argument that Brown could not have violated SORNA by failing to register in Alabama when he moved to Alabama, as SORNA required, because Alabama had not yet implemented the SORNA requirements. The Court explained that Alabama’s requirements were different from Brown’s, and that Alabama already had a sex offender registry in place.
The Court also rejected Brown’s Due Process challenge to the registration requirement. The Court found that, by pleading guilty, he had waived the factual argument that he was prevented from registering. The Court also found that Brown received adequate notice of the registration requirement. The Court noted that Brown had actual knowledge of his duty to register in Alabama. Further, there were circumstances that would have prompted Brown to inquire further, including his own past compliance with the registration requirement in another state (North Carolina).
On plain error review, the Court rejected a challenge to the life term of supervised release was invalid. At his guilty plea colloquy, the court incorrectly told the defendant that he faced a maximum three-year term of supervised release. The PSI correctly stated the life term. The Court noted the error at the guilty plea colloquy was plain, but there was no prejudice because Brown did not establish that he would not have pled guilty had he known that the maximum supervised release term was life instead of three years.
The Court rejected the argument that Brown could not have violated SORNA by failing to register in Alabama when he moved to Alabama, as SORNA required, because Alabama had not yet implemented the SORNA requirements. The Court explained that Alabama’s requirements were different from Brown’s, and that Alabama already had a sex offender registry in place.
The Court also rejected Brown’s Due Process challenge to the registration requirement. The Court found that, by pleading guilty, he had waived the factual argument that he was prevented from registering. The Court also found that Brown received adequate notice of the registration requirement. The Court noted that Brown had actual knowledge of his duty to register in Alabama. Further, there were circumstances that would have prompted Brown to inquire further, including his own past compliance with the registration requirement in another state (North Carolina).
Tuesday, November 03, 2009
Harris: Fleeing Police at High Speed is "Crime of Violence"
In U.S. v. Harris, No. 08-15909 (Nov. 3, 2009), the Court affirmed reliance on a prior Florida state conviction for eluding a police officer at a high rate of speed as a “crime of violence” for Guidelines criminal history sentence enhancement purposes.
The Court noted that the elements of the offense were fleeing at high speed or a wanton disregard for safety, which are akin to crimes committed while aware that “violence might ensue.” The Court stated that a person who fled police at a high speed is the kind of person who might point a gun and pull the trigger. The crime displays a “callousness toward risk.” The conduct is also “aggressive” because highways are populated with people. The Court cited cases on other Circuits which reached the same conclusion.
The Court noted that the elements of the offense were fleeing at high speed or a wanton disregard for safety, which are akin to crimes committed while aware that “violence might ensue.” The Court stated that a person who fled police at a high speed is the kind of person who might point a gun and pull the trigger. The crime displays a “callousness toward risk.” The conduct is also “aggressive” because highways are populated with people. The Court cited cases on other Circuits which reached the same conclusion.
Sanchez: Errors in 3559 sentence enhancements
In U.S. v. Sanchez, No. 06-15143 (Oct. 30, 2009), the Court affirmed convictions of several defendants relating to the attempted burglary of a marijuana grow-house.
The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records. The Court also rejected challenges to the use of summaries of this evidence during trial, pointing out that the trial court had instructed the jury that the summaries were not evidence and that the evidence was the call records.
Turning to sentencing, on plain error review, the Court vacated sentences based on the federal “three strikes” law, 18 U.S.C. § 3559(c). As the government conceded, one defendant’s prior drug-trafficking conviction did not qualify as a prior drug trafficking offense for purposes of § 3559 because the drug quantity was unspecified, and § 3559 requires prior convictions of quantities above a specified amount in the cross-referenced federal drug statute.
The Court remanded to the district court another defendant’s argument that his prior “escape” conviction did not qualify as a crime of violence for § 3559 purposes. The Court noted that the district court had erroneously believed that the defendant could not raise this challenge to his sentence.
Finally, the Court found no procedural or substantive error in the district court’s upward departure and upward variance based on his criminal history. The Court noted that the district court had stated that it had considered the § 3553 factors.
The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records. The Court also rejected challenges to the use of summaries of this evidence during trial, pointing out that the trial court had instructed the jury that the summaries were not evidence and that the evidence was the call records.
Turning to sentencing, on plain error review, the Court vacated sentences based on the federal “three strikes” law, 18 U.S.C. § 3559(c). As the government conceded, one defendant’s prior drug-trafficking conviction did not qualify as a prior drug trafficking offense for purposes of § 3559 because the drug quantity was unspecified, and § 3559 requires prior convictions of quantities above a specified amount in the cross-referenced federal drug statute.
The Court remanded to the district court another defendant’s argument that his prior “escape” conviction did not qualify as a crime of violence for § 3559 purposes. The Court noted that the district court had erroneously believed that the defendant could not raise this challenge to his sentence.
Finally, the Court found no procedural or substantive error in the district court’s upward departure and upward variance based on his criminal history. The Court noted that the district court had stated that it had considered the § 3553 factors.
Monday, November 02, 2009
Tate: 946-month sentence affirmed for bank robber
In U.S. v. Tate, No. 09-10288 (Oct. 30, 2009), the Court affirmed a defendant’s convictions for multiple bank robberies and firearm-possessions.
The Court rejected Tate’s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home. Here the circumstances established probable cause.
The Court also rejected Tate’s argument that the district court should have invited defense counsel to state whether he had any Batson challenges before the jury is sworn. The Court declined to create a new rule requiring the Court to ask for Batson objections.
Turning to sentencing, and recognizing a Circuit conflict on the issue, the Court held that 18 U.S.C. § 924(c) requires that sentence for using a firearm during the commission of a crime of violence be imposed consecutively. The Court also rejected Tate’s challenge to the reasonableness of his 946-month sentence, pointing out that it was within the Guideline range, and noting Tate’s escalating criminal history since his teenage years.
The Court rejected Tate’s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home. Here the circumstances established probable cause.
The Court also rejected Tate’s argument that the district court should have invited defense counsel to state whether he had any Batson challenges before the jury is sworn. The Court declined to create a new rule requiring the Court to ask for Batson objections.
Turning to sentencing, and recognizing a Circuit conflict on the issue, the Court held that 18 U.S.C. § 924(c) requires that sentence for using a firearm during the commission of a crime of violence be imposed consecutively. The Court also rejected Tate’s challenge to the reasonableness of his 946-month sentence, pointing out that it was within the Guideline range, and noting Tate’s escalating criminal history since his teenage years.
Tuesday, October 27, 2009
Maples: No Excuse for Procedural Default
In Maples v. Allen, No. 07-15187 (Oct. 26, 2009), the Court affirmed the denial of habeas relief to an Alabama death-row inmate.
After his murder conviction and death sentence were affirmed on direct appeal in the Alabama courts, Maples, represented by counsel, filed for collateral relief in Alabama state court. The court denied relief, and Maples’ lawyers neglected to file a timely appeal. The Alabama courts found that the deadline for filing an appeal barred Maples from pursuing collateral relief. Maples brought a federal habeas action, alleging the same claims asserted in the Alabama collateral relief suit. The Court found that these claims were procedurally defaulted.
The Court found that Maples could not excuse the procedural default, because he was not entitled to representation in his collateral proceeding, and therefore could not establish ineffective assistance.
The Court rejected Maples’ argument that the Alabama trial court should sua sponte have given the jury an instruction regarding manslaughter and voluntary intoxication. The Court found no such requirement in the caselaw, and noted that the evidence would not have supported a voluntary intoxication defense.
After his murder conviction and death sentence were affirmed on direct appeal in the Alabama courts, Maples, represented by counsel, filed for collateral relief in Alabama state court. The court denied relief, and Maples’ lawyers neglected to file a timely appeal. The Alabama courts found that the deadline for filing an appeal barred Maples from pursuing collateral relief. Maples brought a federal habeas action, alleging the same claims asserted in the Alabama collateral relief suit. The Court found that these claims were procedurally defaulted.
The Court found that Maples could not excuse the procedural default, because he was not entitled to representation in his collateral proceeding, and therefore could not establish ineffective assistance.
The Court rejected Maples’ argument that the Alabama trial court should sua sponte have given the jury an instruction regarding manslaughter and voluntary intoxication. The Court found no such requirement in the caselaw, and noted that the evidence would not have supported a voluntary intoxication defense.
Velez: Criminal Defense attorney transactions exempt
In U.S. v. Velez, No. 09-10199 (Oct. 26, 2009), the Court affirmed the district court’s dismissal of a money-laundering count in a prosecution against a criminal defense lawyer, in which the government charged that the lawyer approved of the transfer of funds for a drug dealer’s defense knowing that they were derived from criminal activity.
The Court relied on 18 U.S.C. § 1957(f), which exempts from money-laundering prosecution "any transaction necessary to preserve a person’s representation as guaranteed by the sixth amendment." The Court rejected the government’s argument that the plain meaning of this statute had been modified by a subsequent Supreme Court decision. The Court pointed out that this decision involved a different, civil forfeiture statute. Consequently, the decision had no bearing on the exemption statute.
The Court relied on 18 U.S.C. § 1957(f), which exempts from money-laundering prosecution "any transaction necessary to preserve a person’s representation as guaranteed by the sixth amendment." The Court rejected the government’s argument that the plain meaning of this statute had been modified by a subsequent Supreme Court decision. The Court pointed out that this decision involved a different, civil forfeiture statute. Consequently, the decision had no bearing on the exemption statute.
Lee: "Walkaway" offense not "violent felony" under ACCA
In U.S. v. Lee, No. 08-14724 (Oct. 26, 2009), the Court, citing Chambers v. U.S., 129 S.Ct. 687 (U.S. 2009), held that a prior "walkaway" escape conviction is not a "violent felony" and therefore vacated the defendant’s 15-year mandatory minimum sentence under the Armed Career Criminal Act. The Court affirmed the felon in possession conviction.
The Court rejected Lee’s Fourth Amendment challenge to the seizure of a gun from the glove compartment of a car in which he was a passenger. The Court found that, as a passenger, Lee lacked standing to challenge the search of the vehicle.
The Court also rejected Lee’s argument that the judge should not have used his own ruler and car keys to demonstrate for the jury the concepts of actual and constructive possession.
Turning to sentencing, the Court applied the approach of the Supreme Court in Begay and Chambers, and concluded that Lee’s prior conviction, which was based on his leaving a halfway house without permission, was not a crime of violence. The Court cited similar decisions in other Circuits which reached the same conclusion in light of Begay and Chambers. The Court noted that Lee’s walkaway offense did not involve "aggression," and was not the type of conduct "that one hears about and remarks, ‘that’s the kind of thing an armed career criminal would do.’"
The Court rejected Lee’s Fourth Amendment challenge to the seizure of a gun from the glove compartment of a car in which he was a passenger. The Court found that, as a passenger, Lee lacked standing to challenge the search of the vehicle.
The Court also rejected Lee’s argument that the judge should not have used his own ruler and car keys to demonstrate for the jury the concepts of actual and constructive possession.
Turning to sentencing, the Court applied the approach of the Supreme Court in Begay and Chambers, and concluded that Lee’s prior conviction, which was based on his leaving a halfway house without permission, was not a crime of violence. The Court cited similar decisions in other Circuits which reached the same conclusion in light of Begay and Chambers. The Court noted that Lee’s walkaway offense did not involve "aggression," and was not the type of conduct "that one hears about and remarks, ‘that’s the kind of thing an armed career criminal would do.’"
Friday, October 23, 2009
Quintina: Ethnicity not basis for police encounter
In U.S. v. Quintana, No. 08-12967 (Oct. 22, 2009), the Court rejected a defendant’s claim that his right to Equal Protection was violated when the police initiated a consensual encounter with him – an encounter which ultimately led to a conviction for illegal re-entry in violation of 8 U.S.C. § 1326(a) – based on their belief that he appeared to be of Middle Eastern ethnicity. The Court found that it did not need to reach the question whether a consensual encounter can give rise to an Equal Protection violation, because the record showed that the encounter in Quintana’s case was not based on Quintana’s apparent race or ethnicity, but on the police’s interest in questioning him about why he showed up a nightclub with a video camera and did not want to go in, and took flight upon seeing the police.
Friday, October 16, 2009
Chavez: Simultaneous Bench and Jury Trials Ok
In U.S. v. Chavez, No. 08-12638 (Oct. 16, 2009), the Court affirmed drug trafficking convictions and sentences.
Several defendants were indicted in the case. One pled not guilty. Four pled guilty but reserved the right to have a bench trial requiring proof beyond a reasonable doubt as to the drug quantities. The five went to trial together. The trial court did not disclose to the jury that some defendants had pled guilty; the verdict form ultimately only sought a verdict as to one defendant.
The Court rejected this defendant’s argument that his motion for a severance should have been granted. While acknowledging the novelty of simultaneous jury and bench trials, and declining to endorse the technique, the Court found no prejudice.
The Court rejected the argument that a mistrial should have been granted when a government witness, in response to a question on cross-examination, answered: "The only way to know [the answer] is through the Defendant." The Court found that curative instructions cured the error, which was all but invited by defense counsel’s question.
The Court also rejected a challenge to the sufficiency of the evidence, noting the abundant circumstantial evidence, and other evidence.
Turning to sentencing, the Court rejected a challenge to the reasonableness of Chavez’ life sentence. The Court noted that the sentence was consistent with the Guidelines.
The Court rejected another defendant’s sentencing challenge. The Court noted that the sentence was based on cash found at the defendant’s residence, which the sentencing court converted to methamphetamine quantities. The Court found the inference that the cash came from drug trafficking to be reasonable.
Several defendants were indicted in the case. One pled not guilty. Four pled guilty but reserved the right to have a bench trial requiring proof beyond a reasonable doubt as to the drug quantities. The five went to trial together. The trial court did not disclose to the jury that some defendants had pled guilty; the verdict form ultimately only sought a verdict as to one defendant.
The Court rejected this defendant’s argument that his motion for a severance should have been granted. While acknowledging the novelty of simultaneous jury and bench trials, and declining to endorse the technique, the Court found no prejudice.
The Court rejected the argument that a mistrial should have been granted when a government witness, in response to a question on cross-examination, answered: "The only way to know [the answer] is through the Defendant." The Court found that curative instructions cured the error, which was all but invited by defense counsel’s question.
The Court also rejected a challenge to the sufficiency of the evidence, noting the abundant circumstantial evidence, and other evidence.
Turning to sentencing, the Court rejected a challenge to the reasonableness of Chavez’ life sentence. The Court noted that the sentence was consistent with the Guidelines.
The Court rejected another defendant’s sentencing challenge. The Court noted that the sentence was based on cash found at the defendant’s residence, which the sentencing court converted to methamphetamine quantities. The Court found the inference that the cash came from drug trafficking to be reasonable.
Monday, October 05, 2009
Martinez: Orchestrator not automatically organizer
In U.S. v. Martinez, No. 08-13846 (Oct. 5, 2009) (Marcus, Hill & Voorhees, b.d.), the Court reversed an "organizer or leader" sentence enhancement, under USSG § 3B1.1(a), that had been imposed on a defendant convicted of marijuana trafficking.
At his plea colloquy, Martinez admitted that he "orchestrated" weekly shipments of mail parcels containing marijuana from Texas to various locations in the Middle District of Florida. Despite this admission, the Court concluded that the government failed to establish that Martinez was an "organizing or leader," as defined by the seven explanatory factors listed in Comment four of USSG § 3B1.1.
The Court found that the term "orchestrate" is not synonymous with control. Orchestrate may mean no more than coordinating a transaction, as opposed to creating or managing it.
Further, the government presented no evidence that Martinez had decision-making authority. The "bare" record also did not indicate Martinez’ relative responsibility in relation to others. Nor was there evidence that Martinez recruited any co-conspirators, claimed a larger share of the proceeds of the crime, or whether he acted at the behest of a supervisor. At the sentencing hearing, Martinez alleged that he did not know who the leader of the group was. While Martinez admitted that he had co-conspirators, the evidence did not indicate that these persons were his subordinates.
The Court stated that at re-sentencing, the government could present evidence in support of the claimed leadership enhancement.
At his plea colloquy, Martinez admitted that he "orchestrated" weekly shipments of mail parcels containing marijuana from Texas to various locations in the Middle District of Florida. Despite this admission, the Court concluded that the government failed to establish that Martinez was an "organizing or leader," as defined by the seven explanatory factors listed in Comment four of USSG § 3B1.1.
The Court found that the term "orchestrate" is not synonymous with control. Orchestrate may mean no more than coordinating a transaction, as opposed to creating or managing it.
Further, the government presented no evidence that Martinez had decision-making authority. The "bare" record also did not indicate Martinez’ relative responsibility in relation to others. Nor was there evidence that Martinez recruited any co-conspirators, claimed a larger share of the proceeds of the crime, or whether he acted at the behest of a supervisor. At the sentencing hearing, Martinez alleged that he did not know who the leader of the group was. While Martinez admitted that he had co-conspirators, the evidence did not indicate that these persons were his subordinates.
The Court stated that at re-sentencing, the government could present evidence in support of the claimed leadership enhancement.
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