Booker: No instruction required when defendant is eligible for parole

In Booker v. Sec., Fla. Dep’t of Corrections, No. 10-14966 (June 19, 2012), the Court denied habeas relief to a Florida death row inmate.
Booker pointed out that during deliberations over whether to sentence him to death, the jury asked whether, if it were to impose a sentence of life with the possibility of parole after serving 25 years, the defendant would get credit for time served. The trial court declined to answer the question. The jury then voted to sentence Booker to death.
In his habeas petition, Booker argued that the district court should have instructed the jury that, because of other consecutive sentences, he was "functionally" barred from ever being paroled. The Court recognized that in Simmons v. South Carolina, the Supreme Court held that in some circumstances a jury must be informed of a defendant’s parole ineligibility. The Court held that Simmons did not clearly govern when, as with Booker, the defendant is statutorily eligible for release on parole.

Jimenez: No "grouping" for illegal reentry and firearm possession

In U.S. v. Jimenez-Cardenas, No. 11-14651 (June 22, 2012), the Court rejected the argument that the district court misapplied the Sentencing Guidelines when it declined to group Jimenez’s convictions for illegal reentry under 8 U.S.C. § 1326(a) with his 18 U.S.C. § 922(g)(5) firearm convictions.
The grouping rules, U.S.S.G. § 3D1.2, provide that offenses should be grouped together when they involve substantially the same harm. But different "societal interests" are harmed by illegal reentry and illegal possession of a firearm. The offenses involve different conduct. No aspect of one offense served as the basis for a sentence enhancement of the other offense.

Pena: Deficient MARPOL survey conviction affirmed

In U.S. v. Pena, No. 10-15928 (June 20, 2012), the Court held that the United States has jurisdiction to prosecute a surveyor for violating statutes and regulations implementing the International Convention for the Prevent of Pollution from Ships (MARPOL), in the inspection of a ship under the flag of another nation, docked in the United States.
Reviewing a challenge to the sufficiency of the indictment raised for the first time on appeal, the Court found no actual prejudice from any deficiency in the indictment. The Court rejected the argument that the indictment failed to adequately describe the nature of the ship "survey" MARPOL requires.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Pena admitted that he not tested an oily water separator because he knew the separator was not working, yet issued a certificate which noted no deficiencies.

House: Affirming Unconstitutional Seizure Convictions

In U.S. v.House, No. 10-15912 (June 20, 2012), in a 70-page opinion, the Court affirmed some convictions and reversed others, in a case involving a former officer of the Federal Protective Service pulling over motorists for unwarranted traffic stops in violation of the Fourth Amendment right to be free from unreasonable seizures, in violation of 18 U.S.C. § 242, and filing false incident reports, in violation of 18 U.S.C. § 1001.
The Court rejected challenges to the sufficiency of the evidence regarding the § 242 violations. The Court found that the government presented testimony establishing that House lacked probable cause to stop the motorists. In addition, House acted "under color of law," because he was wearing his uniform, and identified himself as a federal officer.
The Court also rejected challenges to the sufficiency of the evidence supporting the false statement convictions, citing the testimony of House’s supervisor that incident reports are use to initiate criminal prosecutions, and it is "very important" that a report "include truthful information in relation to all of the facts of the case."
The Court held that a jury instruction that told the jury that it could find a seizure to be "unreasonable" solely because the officer did a traffic stop without jurisdiction or authority was erroneous. However, the error was harmless as to a number of counts. As to these counts, the jury convicted House of making false incident reports, thus rejecting House’s view that he had probable cause to make the traffic stops.

Welch: Consent to search voluntary

In U.S. v. Welch, No. 10-14649 (June 13, 2012), the Court rejected a Fourth Amendment challenge to a search, and held that Welch’s prior conviction for robbery qualified a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA").
Looking for a suspect in an armed robbery, two days after the robbery, but without search or arrest warrants, police knocked on the door of an apartment where the suspect was said to reside, entered with guns drawn and found Welch (not the suspect) "smoking a ‘joint’ and minding a baby." Police asked Welch if they could search his apartment. He initially refused, but a few minutes later consented. The police found a pistol. Welch admitted that it was his.
Rejecting Welch’s argument that the pistol and Welch’s admission were the fruits of an unlawful search, the Court found that Welch had voluntarily consented to the search. The Court noted that Welch "must not have left coerced into consenting when [police] first asked, because he declined to consent... A person who actually says ‘no’ has not been coerced into saying ‘yes.’"
The Court found that Welch consented after police told him that they would get a search warrant and this "would take a while." Welch’s consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives: either police would get the search done quickly and fail to notice his pistol, or if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.
Turning to sentencing, the Court recognized that at the time of Welch’s prior Florida robbery, the Florida courts were divided as to whether a "snatching" amounted to robbery. But even assuming only a "snatching," the Court found that a "victim’s natural reaction is likely to be to try to hold on to his or her money or property, leading in many cases to serious injury." The offense therefore qualified under ACCA’s "residual clause," which provides that prior felony is a "violent felony" if it involves a serious risk of physical injury.

Lucas: Reservations about Death Penalty remains grounds for peremptory challenges

In Lucas v. Sec. Dep’t of Corrections, No. 08-15761 (June 8, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1976 murder.
The Court found that Lucas had failed to raise in state court proceedings his claim that the prosecution’s failure to disclose a rebuttal witness violated his confrontation clause rights. This claim was therefore procedurally barred. Even on the merits, the claim would have failed, as rebuttal witnesses are not subject to the pretrial disclosure requirement.
The Court also rejected the claim that counsel was ineffective for failing at the sentencing phase to negate the application of the heinous, atrocious and cruel aggravator. The Court noted that the evidence of the "beating" of the victim made it unlikely that additional evidence would have changed the outcome.
The Court rejected the challenge to the prosecution’s use of peremptory challenges to remove jurors who expressed reservations about the death penalty. The Court noted the absence of "clearly established" Supreme Court caselaw barring the use of peremptory challenges based on opinions regarding the death penalty.

Diaz: Inmate in Federal Prison not "in custody"

In Diaz v. State of Florida Fourth Judicial Circuit, No. 10-15202 (June 11, 2012), the Court affirmed the denial of habeas relief to a defendant who had completely served the sentence imposed by the state court and therefore was no longer "in custody."
Diaz was subject to two sentences, one imposed in federal court to run concurrently to any sentence imposed in state court, and one imposed in state court, to run consecutively and prior to the federal sentence. When Diaz finished serving his state sentence in state custody he was transferred to federal custody to finish serving his federal sentence. When in federal custody, Diaz filed a habeas petition challenging the constitutionality of his state convictions.
The Court held that because Diaz had fully served the state sentence he was no longer "in custody" for habeas purposes. The Court distinguished other cases in which an inmate was allowed to challenge a prior conviction when he serving the latter of two consecutive sentences imposed by the same sovereign. In those cases, an error in the first sentence would delay the start of the latter sentence. But here, Diaz was serving his federal sentence, and the federal government is "generally not required to credit any portion of a prisoner’s time served in state custody."

Cortes-Salazar: Padilla-Reyes remains binding

In U.S. v. Cortes-Salazar, No. 11-11428 (May 30, 2012), the Court held that a prior conviction for a "lewd assault act," in violation of Fla. Stat. § 800.04, qualified as "crime of violence" under U.S.S.G. § 2L1.2, and therefore supported the 16-level enhancement the district court imposed on a defendant convicted of illegal re-entry after deportation.
The Court noted that it had previously held in U.S. v. Padilla-Reyes that a prior conviction under Fla. Stat. § 800.04, with or without victim contact, qualified as an "aggravated felony" for purposes of § 2L1.2 and therefore supported a 16-level enhancement. The Court recognized that the Guideline definitions had changed since Padilla-Reyes. The Court also noted a number of cases decided subsequent to Padilla-Reyes. However, the Court rejected the defendant’s arguments that these changes in the law undermined the viability of Padilla-Reyes, and determined, to the contrary, that Padilla-Reyes "remains binding precedent."

Kendrick: No vindictive prosecution after acquittal

In U.S. v. Kendrick, No. 11-12620 (June 1, 2012), http://www.ca11.uscourts.gov/opinions/ops/201112620.pdfthe Court rejected challenges to a conviction for alien smuggling for commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).
Kendrick had been acquitted, at a prior trial, of importing 900 pounds of marihuana into the United States. In his defense at this earlier trial, Kendrick testified that he went to the Bahamas not to bring back marihuana, but aliens. The government thereafter indicted Kendrick of smuggling illegal aliens, and he was convicted. On appeal, Kendrick claimed that he was the victim of vindictive prosecution after his acquittal. Rejecting this claim, the Court noted that the new indictment did not state heightened charges (the maximum penalties for alien smuggling are less than marihuana importing). Moreover, the government explained that until Kendrick admitted at trial having smuggled aliens, it did not have sufficient evidence to charge Kendrick for this offense.
The Court also rejected Kendrick’s challenge to the sufficiency of the evidence, pointing out, inter alia, that Kendrick fled the Coast Guard when a vessel approached his vessel.
The Court also affirmed the district court’s exclusion of evidence that Kendrick had been acquitted of the prior marihuana charge. The Court pointed out that an acquittal is hearsay. The Court also noted that the marihuana charge was irrelevant to alien smuggling.
The Court also rejected the argument that a portion of the prosecutor’s closing argument in the first trial should have been admitted at the second trial. In his closing, the prosecutor stated that the $25,000 Kendrick received was for the risk of smuggling drugs, not aliens. The Court found that this evidence would have “confused” the jury.

Evans: Brain Damage evidence is basis for habeas relief

In Evans v. Sec. Dep’t of Corrections, No. 10-14920 (May 23, 2012) (2-1) (Edmondson, J., dissenting), the Court reversed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder.
The Court found that the Florida Supreme Court had unreasonably discounted the mitigation evidence that Evans’ trial counsel failed to present at his sentencing hearing. The evidence would have established Evans’ brain damage dating from an accident he had as a child. The Court pointed out that in Porter v. McCollum, the Supreme Court held that unpresented mitigating evidence must be considered by a reviewing court from the point of the view of the jury that never heard the evidence. The Florida Supreme Court failed to consider the possibility that competent counsel could have used the brain damage evidence in mitigation.

Perez: Lafler did not "break new ground"

In In Re Michael Perez, No. 12-12240 (May 25, 2012), the Court held that a § 2255 petitioner was not entitled to raise a claim of ineffective assistance of counsel in a second or successive § 2255 motion. Perez claimed that Missouri v. Frye and Lafler v. Cooper were “new rules of constitutional law” upon which he could rely in a second or successive § 2255 petition. The Court, however, found that these cases did not “break new ground,” because in Hill v. Lockhart the Supreme Court had already extended Strickland’s test for ineffective assistance to the plea bargaining process. In addition, the fact that the Supreme Court decided these two cases on habeas petitions eliminated any doubt as to whether they broke new ground, because, under AEDPA, habeas petitioners must show a decision contrary to “clearly established law” in order to prevail.

Schneider: Florida False Imprisonment is Violent Felony

In U.S. v. Schneider, No. 10-15863 (May 24, 2012), the Court held that a prior conviction for false imprisonment in violation of Fla. Stat. § 787.02(1)(a), qualifies as a violent felony for purposes of the Armed Career Criminal Act.



The Court rejected the government’s argument that the defendant waived the issue by failing to object to the underlying facts set forth in the PSI. The Court noted that while Schneider’s objection to the factual paragraph of the PSI focused on a legal argument rather than setting out any factual dispute, he did state that false imprisonment includes “nonviolent” conduct. In addition, the premise of the argument at sentencing was that the factual allegations did not suffice to support the ACCA enhancement.



The Court noted that in false imprisonment cases in which a defendant “secretly” – i.e., by ruse, abducted another person, a risk of injury can result once the victim might try to resist or escape. The Court analogized the risk to the risk of injury caused by a vehicular flight, which the Supreme Court found to be a violent felony in Sykes v. U.S. The Court rejected the defendant’s analogy to a perpetrator’s failure to report for scheduled weekend confinement, which Chambers v. U.S. held did not qualify as a violent felony.

Zuniga-Artega: Aggravated Identity Theft Can Involve Dead Person

In U.S. v. Zuniga-Arteaga, No. 11-673 (May 21, 2012), the Court held that aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) can involve the identity of a person who is no longer living.
The statute makes it a crime to use a "means of identification of another person." The Court noted that the word "person" had no "definitive legal meaning." But the context of the use of the word indicated that the statute did not mean to distinguish between the living and the dead. The statute also criminalized use of a "false identification document," conduct that can involve a dead person. In addition, use of the identification of a dead person "has very real consequences for the living, such as the beneficiaries of the decedents."

Kaley: Defendant may not try case twice

In U.S. v. Kaley, No. 10-15048 (April 26, 2012), the Court held that, in a pretrial hearing on whether a post-indictment restraining order on a defendant’s disposition of assets encroaches on the defendant’s Sixth Amendment right to pay for his counsel of choice, the defendant may not challenge whether the conduct alleged in the indictment supports probable cause.
The Court found that the "paramount importance" of not forcing the government to "tip its hand" prematurely about the strength of its case outweighed the defendant’s constitutionally-protected right to counsel.
The Court recognized that it is Due Process that requires a hearing on the permissibility of a restraint on a defendant’s assets, as Congress neglected to provide for such a hearing by statute when it empowered the government to restrain a defendant’s assets pre-trial. To determine the requirements of Due Process, the Court cited the legislative history of the statute that neglected to provide for a hearing.
The Court explained that "defendants are not entitled to try their entire case twice," and pointed out that, even without counsel of choice that a defendant could pay for, at trial "the defendant will have counsel (appointed, if necessary)."

Stephens: Pleading guilty in mitigation not ineffective

In Stephens v. Sec. Fla. Dep’t of Corrections, No. 11-11727 (May 1, 2012), the Court denied habeas relief to a Florida inmate sentenced to death for a 1997 murder.
The Court rejected the argument that a death sentence for felony murder violated the Eighth Amendment prohibition on cruel and unusual punishment, pointing out that the jury was properly instructed to find the requisite mens rea.
The Court rejected ineffective assistance of counsel claims, including a claim that counsel was deficient at the penalty phase. The Court noted that counsel made a strategic decision to present Stephens as a "good guy," and that other evidence would have been adverse to this defense. The Court also did not fault counsel for convincing the defendant to plead guilty to certain charged to show mitigation at the penalty phase.

Register: Grouping does not require common scheme

In U.S. v. Register, No. 11-12773 (May 4, 2012), the Court held that the sentencing court erroneously failed to group all of Register’s tax related offenses into a single group pursuant to U.S.S.G. § 3D1.2(b) or (d).
The Court found that the offenses, though subject to two different Guidelines, were "of the same general type" and "closely related." The Court also noted the "substantial [factual] overlap" among the offenses. The Court noted that there is no requirement for grouping that counts involve a common criminal objective or a common scheme; the counts can arise from various schemes.

Mansfield: Miranda error Harmless under AEDPA

In Mansfield v. Sec. Dep’t of Corrections, No. 09-12312 (May 9, 2012),
the Court denied habeas relief to a Florida inmate sentenced to death for a 1995 murder.
At trial, a videotaped confession obtained in violation of Miranda was erroneously admitted. The Florida state courts concluded that the error was harmless.
The Court, viewing the harmless error "through the [deferential] lens of AEDPA," credited the Florida Supreme Court’s reliance on evidence in support of Mansfield’s conviction. The Court noted evidence that Mansfield went swimming shortly after committing the murder in order to wash off any blood, a mark on the victim left by Mansfield’s ring, and evidence linking Mansfield to the crime scene. This and other "substantial" evidence made the erroneous admission of the videotape harmless.

Peruz-Peruz: No safety valve for Title 46 offenses

In U.S. v. Pertuz-Pertuz, No. 10-15800 (May 11, 2012), the Court held that a defendant convicted of conspiring to possess cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70503, and penalized pursuant to 21 U.S.C. § 960, could not benefit from a safety valve sentence below the mandatory minimum sentence.
The Court noted that the safety valve statute, 18 U.S.C. § 3553(f), lists "offenses" for which a safety valve reduction may be available, and no offense in Title 46 is on the list. The Court rejected the argument that the defendant could qualify for safety-valve because his offense cross-referenced the punishment set forth a 21 U.S.C. § 960. The Court pointed out that the safety valve statute refers to offenses, not sentences.

Cook: No Miranda warnings for confession to father

In Cook v. Warden, No. 10-13334 (April 20, 2012),
the Court affirmed the denial of habeas relief, finding Cook’s claims of ineffective assistance of counsel to be unsupported by the record. The Court also rejected the argument that the petitioner’s confession to his father, an FBI agent, should have been suppressed, because he was not given Miranda warnings. "[N]o Miranda violation occurs when a suspect confesses to a family member who is employed in law enforcement, even when the family member – acting in his private capacity – urges the suspect to speak."

Hutchinson: Negligent habeas lawyers does not support equitable tolling

In Hutchinson v. Florida, No. 10-14978 (April 19, 2012), the Court held that a habeas petition was time-barred by AEDPA, and declined to apply the equitable tolling doctrine in the favor of a Florida death row inmate.
Despite entreaties from Hutchinson that they were going to miss the deadline for filing his state habeas petition within the one-year federal deadline that would toll the federal statute of limitations, Hutchinson’s lawyer believed that they had more time than they in fact did, and filed the state petition after the one-year deadline had lapsed. As a result, after the state courts denied habeas relief, Hutchinson’s federal petition was untimely. Hutchinson invoked equitable tolling, but the Court held that missing the statute of limitations could not be excused based on counsel’s negligence, pointing out that Hutchinson, though he protested that his state petition was being filed too late for federal purposes, never filed a federal habeas petition or took any action to preserve his federal petition for nearly four years. Consequently, he did not pursue his rights diligently.
Concurring, Judge Barkett argued that in death row cases, one should not adhere to the principle that an inmate must bear the consequences of his lawyer’s negligence.

Noriega: Remanding for suppression factfinding

In U.S. v. Noriega, No. 10-12480 (April 11, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201012480.op2.pdf
the Court remanded a case to the trial court for additional factfindings regarding a suppression issue.
Alabama police, acting on a tip, obtained a warrant to search a house, and found a marijuana growing operation at this location. The police then arrived at a second home the tip had mentioned, and, without a search warrant, conducted a protective sweep of the property, and found evidence of a second growing operation. The police then obtained a warrant.
Before trial, the defendants moved to suppress the items found in the second search, arguing that the protective sweep was conducted without the requisite search warrant. The Court noted that even if the protective sweep was not permitted, the evidence could have been properly admitted if was obtained from an "independent source." Relying on this doctrine required excising from the second search warrant affidavit any information gained during the arguably illegal initial entry, and determining whether the remaining information sufficed to support a probable cause finding. If the police would have sought a warrant anyway, without regard to what they discovered during their protective sweep, the district court did not err in denying the motion to suppress. Because the district court made no finding on this issue, and it is its role, not the Court of Appeals’, to find facts, the Court remanded the case for this factfinding. If the police would not have sought the warrant anyway, the Court would decide whether the protective sweep violated the Fourth Amendment.
The panel retained jurisdiction over the appeal pending the district court’s factfinding.

Tobin: Internet Drug Distribution Convictions Affirmed

In U.S. v. Tobin, No. 09-13944 (April 12, 2012),
http://www.ca11.uscourts.gov/opinions/ops/200913944.pdf
the Court affirmed the convictions of five defendants convicted of distributing controlled substances over the internet, and vacated one defendant’s sentence.
The Court rejected the argument that the Controlled Substances Act was ambiguous, and unconstitutionally vague, with regard to the criminalization of distribution over the internet. The Court found that the CSA applied "regardless of the channel of distribution." The Court also rejected the argument that it was ambiguous whether the CSA incorporated state law standards requiring in-person prescriptions.
The Court rejected the argument that the defendants were erroneously precluded from arguing that they were unaware that their conduct violated the law. The Court explained that it is not necessary for conduct to be "willful" to violate the CSA; it is sufficient for a person to do so "knowingly."
The Court found no error in the district court’s rejection of the defense that a defendant subjectively believed that he was acting in accordance with professional standards, pointing out that this issue is decided from an objective, not subjective, viewpoint.
The Court found that the district erred in ruling that the conspiracy statute, 21 U.S.C. § 846, did not require a showing of a "willful" state of mind. However, these rulings had no effect on one defendant who did not identify any evidence that he would have presented in support of his "good-faith" defense, and on another who took the stand in his defense, and whom the jury therefore might have disbelieved on this basis alone.
Citing its narrow reading in Demarest of the Supreme Court’s fractured decision in Santos, the Court rejected the argument that, for purposes of the money-laundering statute, "proceeds" should have been defined to the jury as "profits." The Court read the money-laundering statute to refer to "profits" only when an illegal gambling business is involved.
The Court rejected one defendant’s argument that the district court should have granted a continuance when his counsel moved to withdraw six days before trial. The Court noted that the district court informed the defendant that new counsel could be appointed for him, and the defendant elected, knowingly, to proceed pro se.
The Court found no reversible error arising out of letters that the jury received during the case, from unknown sources, regarding the case. The district court examined jurors about one letter, and properly admonished the jury about not relying on extrinsic evidence.
The Court agreed with one defendant that in closing argument, a prosecutor argued facts that were not in evidence when it described a witness’s testimony, but found that the misstatement had not prejudiced the defendant.
The Court noted that on two occasions the district court addressed the issue of plea negotiations. The district court explicitly indicated that it would like the defendants to begin to engage in plea discussions. This violated the "categorical mandate" of Fed. R. Crim. P. 11, which prohibits such involvement. Even "innocuous" comments can violate Rule 11. "[A] district court’s suggestion that a defendant look into pleading guilty may give the impression that the district court has already taken a position regarding the question of guilty and . . . this can undermine the defendant’s confidence in the neutrality of the tribunal." The Court decided that a new trial was not the proper remedy, but ordered a new sentencing before a different judge.
The Court rejected challenges to the sentences, pointing that a district court may rely on acquitted conduct as a basis for punishment, and finding that defendants had not shown unwarranted sentencing disparities.

Chitwood: Georgia False Imprisonment qualifies as "crime of violence"

In U.S. v. Chitwood, No. 11-12054 (April 5, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201112054.pdf
the Court held that the Georgia offense of false imprisonment qualified as a crime of violence for purposes of "career offender" treatment under U.S.S.G. § 4B1.1.
The Court recognized that the use or threat of physical force is not an element of Georgia false imprisonment. Consequently, the offense did not qualify under the "elements" test of the career offender guidelines. However, the offense did qualify under the "residual clause."
The Court pointed out that in Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court had retreated from its statement in Begay v. U.S., 553 U.S. 137 (2008) that conduct must be "purposeful, violent and aggressive" in order to qualify under the residual clause. Sykes limited this inquiry to strict liability-type offenses. Offenses that are not strict liability, negligence or recklessness crimes qualify under the residual clause if they categorically pose a serious potential risk of physical injury that is similar to the risks of physical injury posed one of the crimes enumerated in the guideline.
Georgia cases make clear that false imprisonment ordinarily creates risks of physical injury to another similar to the risks of burglary, an enumerated offense. Arresting, confining, or detaining someone against his or her will presents a risk of serious physical injury similar to burglary.
The Court noted that statistical evidence is not required to prove the risk of injury. "Here, being without the benefit of empirical evidence, we rely on our common sense."

Rosales-Bruno: Florida "False Imprisonment" not a "crime of violence"

In U.S. v. Rosales-Bruno, No. 11-14293 (April 6, 2012), the Court held that the Florida offense of false imprisonment did not qualify as a "crime of violence" for purposes of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Court noted that "where the statutory definition of the prior offense encompasses both violent and nonviolent conduct, we look [to] whether the prior conviction falls under a particular statutory phrase that qualifies it as a ‘crime of violence.’" Looking to Florida caselaw interpreting the "false imprisonment" statute, the Court noted that the offense "can be committed without employing the type of ‘physical force’ contemplated in the Guidelines." Not all false imprisonments involve the use or threat of physical force.
Turning to the evidence regarding the offense, the Court rejected the government argument that it could rely on an arrest affidavit. The Court explained that this is not the type of document that can be relied on, citing Shepard v. U.S., 544 U.S. 12 (2005).
The Court also rejected the government’s argument that defense counsel had not objected to facts recited in a paragraph of the PSR with the requisite specificity. Though recognizing that "vague assertions of inaccuracies" are insufficient to preserve an objection, the Court found that the defense had adequately objected when the PSR Addendum stated: "The defendant also objects to paragraph 30 which contains the circumstances of the false imprisonment case."
Finally, the Court rejected the government’s argument that viewing all of the charges in the information together, one could draw an inference that the false imprisonment was violent. Citing Shepard, the Court noted the "dubious merit" of this approach, and rejected it because the other charges were non-violent.

Lebowitz: Child pornography production sentence affirmed

In U.S. v. Lebowitz, No. 10-13340 (April 5, 2012),
the Court affirmed convictions for producing child pornography, and affirmed a 320 months’ sentence.
The Court rejected the argument that a law enforcement agent violated Lebowitz’ Fourth Amendment rights when, after arresting Lebowitz at the residence of a minor that he had planned to meet through internet exchanges that mentioned oral stimulation and “an adventure,” she searched Lebowitz’ car without a warrant. The Court found that the good faith exception to the exclusionary rule applied, because the investigator relied on the Court’s precedent, which until recently allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.
Turning to sentencing, the Court rejected Lebowitz’ claim that his sentence was substantively unreasonable, noting: “Child sex crimes are among the most egregious and despicable of societal and criminal offenses.”

Keen: Sentencing Error to Group Fraud and Bribery

In U.S. v. Keen, No. 09-16027 (April 5, 2012), the Court affirmed all convictions arising out of bribery charges that stemmed from corruption in Dixie County, Florida, but vacated one sentence.
The Court rejected the argument that Keen did not qualify as an "agent" of Dixie County because he was not authorized to act with respect to the entity’s funds. The Court noted that such a narrowing reading of the term "agent" would only be needed to avoid an "absurd result." It sufficed that Keen was authorized to act on behalf of Dixie County.
The Court also rejected Keen’s statute of limitations challenge, pointing out that the government charged conduct within the limitations period, and that the limitations period could be measured from the date of Keen’s most recent bribery violation.
The Court recognized that it was a "serious error" for the prosecutor to introduce evidence of a prior conviction, but upheld the trial court’s decision not to grant a mistrial. The Court reminded the United States Attorney’s office of "the high level of conduct that has traditionally characterized [it]."
The Court rejected a claim of outrageous government conduct, pointing out that the district court gave the jury an entrapment instruction.
Turning to sentencing, the Court agreed with Keen that the sentencing court incorrectly grouped his fraud and bribery convictions. The Court rejected the government’s argument that Keen’s efforts to conceal his crime, or his violation of the "public trust," amounted to a continuation of the crime for grouping purposes. Because the incorrect grouping resulted in an erroneous six-level enhancement, the Court remanded for resentencing.

Reese: Ok to argue 'every woman's worst nightmare'

In Reese v. Sec., Fla. Dep’t of Corrections, No. 11-12178 (March 30, 2012), the Court denied habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court rejected the argument that the prosecution engaged in improper closing argument when he argued that the manner of the killing was "every woman’s worst nightmare," suggested that the defendant would be released on parole absent a sentence of death, compared the defendant to a "cute little puppy" who grew up to be a "vicious dog," and urged the jury to show the defendant "the same pity" he showed the victim: "none."
The Court found no Supreme Court precedent that the Florida courts had applied unreasonably. In addition, even reviewing the prosecutor’s closing argument de novo, the Court found no improper closing. The Court found that the prosecutor "legitimately urged the jury to consider the victim’s experience" to determine whether the offense was "especially heinous." The prosecutor’s statement about the defendant’s eligibility for parole was a correct statement of the law. The "grew up into a vicious dog" comment was a proper rebuttal of defense witnesses who did not know the defendant as an adult. Reese’s counsel failed to object to the "same mercy" comment.

Price: Outcome would not have been different

In Price v. Allen, No. 09-11716 (March 30, 2012), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of murder in1993.
The Court rejected Price’s argument that the Alabama courts erred in denying his request for a change of venue based on pretrial publicity regarding his case. The Court noted that the nine news reports upon which Price relied to show pretrial publicity were published more than a year before the trial, and did not contain a confession or any "blatantly prejudicial information."
The Court also rejected the claim that Price’s defense counsel had inadequately investigated the venue motion, finding no facts that counsel should have found.
Finally, the Court rejected the claim that counsel was ineffective at the sentencing phase, finding that the family information Price claimed should have been presented to the jury did not establish a reasonable probability that the outcome of the sentencing would have been different.

Lewis: No Fourth Amendment Violation

In U.S. v. Lewis, No. 10-13567 (March 23, 2012) (2-1) (Wilson, J., dissenting), on a government appeal of a district court granting a motion to suppress, the Court reversed, finding no Fourth Amendment violation.
http://www.ca11.uscourts.gov/opinions/ops/201013567.pdf
Orange County, Florida police officers entered the parking lot of a restaurant, in a high crime area. They observed four males standing in between two parked vehicles, "just hanging out." The officers approached the men and asked whether any of them were carrying guns. Two of the men responded affirmatively, one saying that a firearm was on his person, and another stating that a firearm was in a backpack in the trunk of the nearby vehicle. Two others (including the defendant Lewis) said nothing. The officers immediately drew their weapons and ordered all four men to sit down on the ground and show their hands. Lewis walked a few steps away from the other men. Lewis was ordered to slide over to the other three men. He complied. Lewis looked "extremely nervous." The officers examined the ground where Lewis was previously seated and saw a semi-automatic pistol underneath a vehicle. Lewis was charged with unlawful possession of this firearm.
The Court found that based on one of the four men’s admission that he was carrying a handgun, the officers had reasonable suspicion that this person was committing a crime under Florida law: carrying a concealed weapon. The Court found that it was reasonable under the circumstances to detain Lewis. The officers faced substantial, immediate danger when confronted with the known possession of the two firearms. The officers "were entitled to control the scene and exercise command over the situation."
Dissenting, Judge Wilson stated that the circumstances permitted a pat down for weapons of those suspected of criminal activity, but there were no "specific and articulable facts" that would give rise to the inference that Lewis was engaged in criminal activity.

Romo-Villalobos: Resisting officer is "crime of violence"

In United States v. Romo-Villalobos, No. 10-15350 (March 20, 2012), the Court affirmed the 37-month sentence of a defendant convicted of illegal reentry after a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1), and for illegal reentry after conviction of false representations, in violation of 8 U.S.C. §§ 1325(a)(1) and 1329.
The Court rejected the argument that the 16-level Guideline enhancement for a reentry offender with a conviction for a prior "crime of violence" should not have applied. The Court pointed out that Florida courts interpreted Romo-Villalobos’ prior offense for obstructing a police officer as one in which violence was a necessary element of the offense. The Court rejected the argument that Florida caselaw showed that de minimis force is sufficient to establish violence under Romo-Villalobos’ Florida offense of conviction.

Rozzelle: Actual Innocence means more than guilt of lesser offense

In Rozzelle v. Sec. Dep’t of Corrections, No. 10-13595 (Feb. 29, 2012), the Court held that a habeas petitioner’s claim that he was guilty only of manslaughter, but not second-degree murder, did not constitute an "actual innocence" claim for purposes of creating a "gateway" to relief for a petition that is time-barred under the statute of limitations of the AEDPA. Actual innocence does not narrowly slice "the various degrees of wrongdoing."
In addition, the Court found that Rozzelle’s proof of actual innocence fell short of establishing actual innocence, because the jury heard virtually the same evidence as the new evidence Rozzelle now presented.

Rozzelle: Actual Innocence means more than guilt of lesser offense

In Rozzelle v. Sec. Dep’t of Corrections, No. 10-13595 (Feb. 29, 2012), the Court held that a habeas petitioner’s claim that he was guilty only of manslaughter, but not second-degree murder, did not constitute an "actual innocence" claim for purposes of creating a "gateway" to relief for a petition that is time-barred under the statute of limitations of the AEDPA. Actual innocence does not narrowly slice "the various degrees of wrongdoing."
In addition, the Court found that Rozzelle’s proof of actual innocence fell short of establishing actual innocence, because the jury heard virtually the same evidence as the new evidence Rozzelle now presented.

Owens: Alabama Second Degree Rape Not a "Violent Felon"

In U.S. v. Owens, No. 09-13118 (Feb. 27, 2012), the Court held that convictions for second degree rape under Alabama law did not qualify as "violent felonies" under the Armed Career Criminal Act ("ACCA").
The Court noted while it had decided in U.S. v. Ivory, 475 F.3d 1232 (11th Cir. 2007) that a second degree rape under Alabama law was a "crime of violence" for career offender purposes, it would be "intellectually dishonest" for the Court to adhere that ruling in light of the Supreme Court’s intervening decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).
The Court noted that in Johnson, the Supreme Court held that ACCA’s requirement of "physical force" meant "violent force." Alabama’s second degree rape offense did not require "forcible compulsion." It only required "the act of sexual intercourse [with] slight penetration" with a person of the opposite sex who is between the ages of 12 and 16. "Although this act requires physical contact, it does not require, as an element, strong physical force or a substantial degree of force." Consequently, the offense did not have as an element "the violent physical force necessary to qualify as a violent felony under the ACCA."
The Court further found that the offense did not qualify under ACCA’s residual clause. The Court reasoned that even "conceding" that the offenses met one part of the residual clause because they pose a serious potential risk of physical injury to the victim," the offenses did not meet the other part of the test, namely the requirement that offenses be "roughly similar, in kind as well as risk posed" to burglary, arson, extortion and crimes involving the use of explosives. The Court noted that, unlike these enumerated offenses, Alabama second degree rape is a strict liability offense, which has no mens rea requirement, and for which consent is not a defense.

In Re Grand Jury: Decryption triggers Fifth Amendment

In In re: Grand Jury Subpoena Duces Tecum dated 3/25/11, No. 11-12268 (Feb. 23, 2012), the Court held that the act of decrypting the contents of a computer hard drive is "testimonial," and therefore triggers the Fifth Amendment protection against self-incrimination.
The Court interpreted Supreme Court precedent to hold that an act of production can be testimonial when the act compels the individual to use "the contents of his own mind," and is not testimonial when an individual is merely compelled to do some physical act, or when the government can show that it already knew the contents of the materials, making any testimonial aspect of the act of production a "foregone conclusion."
The Court held that use of a decryption password to access the contents of a hard drive would be tantamount to a person’s testimony of his knowledge of the existence and location of potentially incriminating files, of his possession, control and access to the encrypted portions of the drives, and of his capability to decrypt the files. The Court found that this testimony was not a "foregone conclusion," because the government did not know whether any files existed, or whether the person was even capable of accessing the encrypted portion of the drives. "It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of date, some of which may be incriminating." The Court distinguished a case which found that the government’s knowledge of a computer file was a "foregone conclusion," pointing out that in that case the government knew the specific file name of the file it sought to decrypt.
The Court further held that the district court did not grant Doe immunity coextensive with the protections of the Fifth Amendment, and therefore could not compel Doe to turn over the encrypted contents. The immunity letter stated that the government could not use the act of production itself, but could use the contents of the encrypted drives against Doe at trial. The Court pointed out that this allowed the government to use the "evidence derived from the original testimonial statement." Thus, the immunity offered was not coextensive with the Fifth Amendment, which extends to information derived from testimony.
The Court therefore reversed the judgment of the district court holding Doe in civil contempt for failing to produce the encrypted contents of hard drives.

McQueen: Alien Smuggler Induced Discharge

In U.S. v. McQueen, No. 10-14798 (Feb. 15, 2012), the Court affirmed the imposition of the six-level enhancement of U.S.S.G. § 2L1.1(b)(5)(A), for the discharge of a firearm, to a defendant convicted of alien smuggling, when the discharge involved warning shots and "pepper balls" fired by Customs and Border Protection agents on a boat that was fleeing interdiction on the high seas west of Palm Beach County, Florida.
The Court noted that the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(A), encompasses conduct that the defendant "induced." The Court recognized that dictionaries typically define "induce" to mean "to lead a person by persuasion or influence." However, in U.S. v. Williams, 51 F.3d 1004, 1011 (11th Cir. 1995), the Court had attributed to a defendant the discharge he "brought about," without regard to whether he persuaded a victim to discharge a weapon. The Court concluded that it was bound by Williams to interpret "induce" to encompass a discharge of a weapon that was "reasonably foreseeable" to the defendant. "A ‘reasonable’ alien smuggler who flees law enforcement on the high seas would foresee the use of illuminated warning shots to gain compliance."

McGarrity: Child Porn Ring Convictions Reversed, Affirmed

In U.S. v. McGarity, No. 09-12070 (Feb. 6, 2012), in a 130-page decision, the Court affirmed some convictions and reversed others in a multi-defendant prosecution of a computer ring of child pornography users.
The Court rejected a void for vagueness challenge to the constitutionality of the statute that makes it a crime to engage in a child exploitation enterprise ("CEE"). The Court noted that the defendant clearly violated the statute by engaging in more than three violations involving sex offenses against children. In addition, even if there were instances in which certain crimes not involving minors could be CEE predicates, possible vagueness in hypothetical situations will not support a facial attack on a statute "when it is surely valid in the vast majority of its intended applications."
The Court rejected the argument that the CEE count of the indictment was defective because it failed to expressly allege that the defendants acted "in concert," an essential element of the offense. The Court held that this element could be inferred from the indictment.
The Court agreed with the defendants that one count of the indictment charging obstruction of justice was insufficient. The Court pointed out that the indictment did not specify which official proceeding was obstructed. The indictment therefore failed to give the defendants the requisite notice of the charge against them.
The Court also agreed with the defendants that the prosecutor engaged in improper direct examination of a cooperating witness when the witness was asked whether a defendant, after being indicted, ever "said that they were innocent." (Answer: no.). Any error, however, was harmless because of the overwhelming evidence of guilt, including "thousands of images and videos of abhorrent child pornography, posted on request and cavalierly bandied back and forth between the defendants." The Court also noted the district court’s instruction to the jury that the defendants’ failure to testify should not be used as evidence of guilt, and that "caution and great care" to be taken in considering the cooperating witness’ testimony.
The Court found no error under Fed. R. Evid. 404(b) in admitting one defendant’s written confession to molesting his two-year old daughter nine years earlier. The Court said the confession made the government’s case "believable but also understandable."
The Court agreed with the defense that the prosecutor engaged in improper closing argument when he said: "The victims in these videos and images, they’re . . . our daughters and granddaughters, neighbors, friends. Sometimes at night when I’m sittiing in my house . . . you can hear the crying." The Court stated: "Here there is no doubt of the impropriety of the emotional appeal." Nonetheless, the error was harmless in light of the overwhelming evidence.
Citing Richardson v. U.S., 526 U.S. 813 (1999), the Court agreed with the defense that the jury instruction on CEE erroneously failed to instruct the jury that it had to agree unanimously regarding which felony violations constituted the three predicate acts necessary to support a conviction. However, the failure to so instruct was harmless error, because the defendants (except one) were each convicted of at least three crimes that constituted predicate offenses – including conspiracy, which the Court held qualified as a predicate offense. The one defendant who was only convicted of two predicate offenses, however, could not be convicted of CEE – and the Court vacated his CEE conviction.
The Court agreed with the defendants that their convictions under two counts violated Double Jeopardy because they constituted "multiple punishment for the same offense." The Court found that the CEE enterprise offense, and the conspiracy to commit acts underlying that enterprise, were duplicative – except as to the defendant whose CEE conviction had been vacated on appeal.
Turning to sentencing, the Court rejected an Eighth Amendment disproportionality challenge to the life sentences imposed. The Court pointed out that the defendants shared more than 400,000 images and 1,000 videos "many of which showed brutal and sadistic sexual acts being committed against children of all ages and nationalities." The Court also rejected the defendants’ reliance on sentences imposed in foreign countries for like crimes: "Our laws and our Constitution, rather than those of foreign jurisdictions, control our findings."
The Court rejected one defendant’s challenge to the imposition of an obstruction of justice enhancement, pointing that when police gained access to his home, after a knock and announce and after calling a locksmith, they found the defendant next to his computer running a "wipe" program.
The Court rejected the argument that one defendant’s sexual abuse of minor decades before his conviction for child pornography could not be considered "relevant conduct" for purposes of a Guideline enhancement. A pattern of activity does not have to be temporally close to the offense of conviction. The Court rejected challenges to Guideline calculations and to the substantive reasonableness of the sentence.
Turning to the restitution award to a child pornography victim called "Amy," the court agreed with a defendant that the government must show that he "proximately caused" the harm to this victim by merely possessing child pornography images of her. The Court held that end-user defendants may proximately cause injuries to the victims of sexual child abuse, but for proximate cause to exist, there must be a causal connection between the action of the end-user and the harm suffered by the victim. The Court remanded the case to the district court for consideration of proximate cause. The Court left it to the district court to consider whether any award may be joint and several with any other defendant responsible for the harm.

Lander: Material Variance from Indictment

In U.S. v. Lander, No. 10-10852 (Feb. 2, 2012), the Court held that proof presented at trial to support a mail fraud count materially varied from the allegations contained in the indictment. The Court therefore reversed this fraud conviction, as well as the money laundering convictions on which it was based.
The indictment alleged that the defendant falsely represented to real estate developers that they were required to pay a performance bond to him as county attorney. At trial, however, the evidence "disproved" that Lander made this misrepresentation. As a result, "the Government shifted its strategy," but its new theories did not coincide with the allegations in the indictment. As a result there was a material variance from the indictment. This variance prejudiced Lander, because the scheme the government relied on at trial was "entirely different from the one alleged in the indictment." The indictment therefore "failed to put Lander on notice of the crime for which he was convicted."
The Court rejected Lander’s sufficiency of the evidence challenge to another fraud conviction, but reversed the sentence and remanded for resentencing.

Sanders: Knowledge of Controlled Substance Suffices

In United States v. Sanders, No. 10-13667 (Feb. 2, 2012), the Court affirmed a cocaine trafficking conviction for the driver of a commercial tractor-trailor on which, hidden in rotting cabbage, 153 kilograms of cocaine were found.
The Court rejected the argument that it was Apprendi error to instruct the jury that "the defendant does not have to know specifically the nature of the particular drug that he’s possessing, but must know that it is a controlled substance." The Court explained that Apprendi error involves the amount of drugs "involved" in the offense, which the jury must find for sentencing purposes. But Apprendi leaves unchanged the defendant’s "knowledge" element, which 21 U.S.C. § 841 links to a "controlled substance." The Court distinguished United States v. Narog, on the ground that the indictment in that case charged that the defendant knew the drugs were methamphetamine. By contrast, Sanders’ indictment charged knowledge of a "controlled substance," that is, "entered into a conspiracy with intent to distribute a controlled substance, and at least five kilograms of cocaine were involved."
The Court held that the district court abused its discretion under Fed. R. Evid. 404(b) when it admitted a 22-year old conviction for selling 1.4 grams of marijuana. The Court held that because the conviction was too remote in time, and too distinct from a conspiracy to traffic in 153 kilograms of cocaine, it "had virtually no probative value." However, the error was harmless in light of the other overwhelming evidence presented at trial.

Davenport: Failure to timely challenge forfeiture order

In U.S. v. Davenport, No. 11-10743 (Feb. 3, 2012), the Court affirmed the denial of a defendant’s attempt to challenge the order of forfeiture entered in a co-defendant’s criminal case.

The Court first noted that a co-defendant lacks standing to challenge the validity of a preliminary order of forfeiture entered in another defendant’s criminal case.

The Court found that Davenport’s ancillary petition under 21 U.S.C. § 853(n), challenging the forfeiture order, was untimely. The notice of forfeiture sent to Davenport’s attorney provided adequate notice of forfeiture.

Finally, the Court found no basis for relief under Federal R. Civ. P. 60(b), finding that Davenport’s lawyer’s failure to understand the law governing adequate notice did not qualify as “excusable neglect.”

Valdiviez-Garza: Collateral estoppel precludes reprosecution

In U.S. v. Valdiviez-Garza, No. 11-10105 (Feb. 6, 2012), the Court held that the prosecution for the offense of illegal re-entry by an alien who had been previously deported, under 8 U.S.C. § 1326(a), was precluded by collateral estoppel doctrine. The Court therefore ordered dismissal of the indictment.

In a previous prosecution, Valdiviez-Garza had been acquitted of illegal re-entry. The focus of his earlier trial - as evidenced by opening statements, defense cross-examination, closing statements and jury instructions – was on the element of citizenship: specifically, whether, on account of his father’s United States citizenship, Valdiviez-Garza was himself a citizen, and therefore not an alien who could violate the illegal reentry statute. Because the jury must have acquitted because of the government’s failure to establish this element, the doctrine of collateral estoppel precluded the government’s subsequent prosecution, when citizenship was again an essential element of the charged offense.

Brown: Value Means Face Value not Actual Worth

In U.S. v. Brown, No. 10-12273 (Dec. 23, 2011), the Court affirmed convictions and a restitution order arising out of mail fraud and interstate transportation of forged securities.

The Court rejected Brown’s argument that the admission of evidence of two similar schemes involving his attempt to deposit IRS tax refund checks with forged endorsements into checking accounts in his name violated Fed. R. Evid. 404(b). The Court noted that this evidence was relevant to disprove Brown’s defense that he was the victim of identity theft in the charged transaction.

The Court also rejected Brown’s challenge to the sufficiency of the evidence. The Court found sufficient evidence from which the jury could infer that the checks at issue had a “value” of at least $5,000, the jurisdictional threshold for a violation of 18 U.S.C. § 2314. Brown argued that the checks were worthless, because they were cancelled months before they were transported in interstate commerce, but the Court found that the value was “the amount payable written on the face of the checks.” The Court cited precedent from other circuits holding that “value” means “face value,” not “actual worth.” Here the face value of the checks exceeded $5,000.

The Court also affirmed a restitution order, rejecting, based on prior Circuit precedent, Brown’s argument that the total amount should not have included losses caused by schemes not expressly charged in the indictment and outside the statute of limitations. The Court noted that the other transactions “fit well within the overarching scheme alleged in the indictment.”

Magwood: Unforeseeable Imposition of Death Penalty violates Due Process

In Magwood v. Warden, No. 07-12208 (Dec. 19, 2011), the Court granted habeas relief to an Alabama death row inmate, finding that his death-sentence, imposed for a 1979 murder of a Sheriff, violated the fair warning requirement of the Due Process Clause, because one of the aggravating circumstances that was relied upon was based on an unforeseeable and retroactive judicial expansion of statutory language.

The Court noted that at the time of Magwood’s murder, the murder of a law enforcement officer was not listed as an aggravating circumstance to qualify a person for the death penalty. However, a subsequent Alabama case suggested that this was a valid basis for imposition of the death penalty.

The Court rejected the argument that Magwood had defaulted this argument by failing to raise it in the Alabama courts, finding that because Magwood would be “actually innocent” of the death penalty, his procedural default was excused.

The Court rejected the argument that Due Process did not embody the Ex Post Facto protection against the infliction of greater punishment through the application of unforeseeable judicial interpretation of a law, noting that Magwood would otherwise be subject to the death penalty. The Court found that the Alabama case that interpreted Alabama law to make Magwood qualify for the death penalty was an “unexpected and indefensible construction of narrow and precise statutory language,” and therefore violated Due Process’ fair warning requirement.

Davila: Magistrate Judge May Not Participate in plea negotiations

In U.S. v. Davila, No 10-15310 (Dec. 21, 2010), the Court vacated a guilty plea and remanded the case with instructions to assign the case to another district judge with the instruction that the magistrate judge who handled Davila’s case be disqualified, because, during a hearing before the Magistrate Judge, he told the defendant that there may be “no viable defenses” to the charges against him, and that the defendant would receive a more favorable sentence if he pled guilty than if he stood trial.

The Court noted that, even under plain error review, the magistrate judge’s comments were grounds for reversal. Federal Rule of Procedure 11(c)(1) establishes a “bright-line” that prohibits the participation of a judge in plea negotiations under any circumstances. Judicial participation is presumed when a judge contrasts the sentence a defendant would receive if he pled guilty with the sentence he would receive if he went to trial and was found guilty. No individualized prejudice need be shown. Accordingly, the Court vacated the conviction.

Consalvo: Credibility issues not suited to habeas

In Consalvo v. Sec. Dep’t of Corrections, No. 10-10533 (Dec. 12, 2011), the Court affirmed the denial of habeas relief to a Florida death row inmate.

The Court found that all of Consalvo’s challenges to his state murder conviction involved the credibility of witnesses. “Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review.” The Court found no unreasonable factual determination by the state courts.

The Court also rejected the challenge to the sentence based on the trial court having relied on deposition testimony that was not presented in open court. The Court found this error “harmless” in light of fact that the facts referenced in the deposition testimony were also established by other competent evidence at trial.

Martinez-Gonzalez: Possession of Forgery is "Aggravated Felony"

In U.S. v. Martinez-Gonzalez, No. 10-15360 (Dec. 6, 2011), the Court affirmed the imposition of an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(a), on a defendant convicted of illegal re-entry into the United States, based on a prior conviction for an “aggravated felony”: the defendant’s prior Alabama conviction for possession of a forget document.

The Court rejected the argument that mere possession of a forged document, in contrast to the manufacture or production of forget items, did not constitute an “aggravated felony.” The Court joined all other Circuits to have considered the issue in concluding that possession of a forged document qualifies as an “aggravated felony.” The Court rejected application of the rule of lenity, finding no ambiguity because the vast majority of federal statutes that criminalize forgery proscribe possessing forged instruments or the equipment used to create those instruments.

The Court also rejected a substantive reasonableness challenge to the sentence, noting that the sentence was within the Guidelines and that the sentencing judge cited the evidence from Martinez-Gonzalez’ record of his “propensity to recidivate.”

White: Jefferson County Commissioner Convictions Affirmed

In U.S. v. White, No. 10-13654 (Nov. 29, 2011), the Court affirmed convictions and the sentence for conspiracy and federal funds bribery of a former Jefferson County, Alabama Commissioner.

The Court rejected a challenge to the sufficiency of the evidence, pointing out that the owner of a contracting firm whose contracts were approved by White on behalf of the County testified that he made cash payments to White “to keep him pretty much happy” with his firm.

The Court also rejected White’s challenge to his 120-month, below Guidelines, sentence. The Court rejected White’s argument that he should not have a received a 16-level enhancement based on the over $1 million the contracting firm received in fees from the County, because the amount of the cash payments to White were only $22,000, and because the County would have hired the contractor regardless of the cash payments White received. The Court rejected this argument, finding that the evidence of White’s involvement – his votes to approve the contracts – sufficed to show that the company’s professional fees were a benefit “received in return for” the payments, as the Guidelines provided.

The Court also rejected a substantive reasonableness challenge to the sentence, pointing out that, under U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc), vacatur on this ground is only granted if the Court is “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”

Hill: Reasonable Doubt Standard does not unduly burden mentally retarded offenders

In Hill v. Humphrey, No. 08-15444 (Nov. 22, 2011) (en banc) (7-4), the Court denied habeas relief to a Georgia inmate, rejecting his constitutional challenge to Georgia’s requirement that he prove his mental retardation beyond a reasonable doubt in order to avoid the death penalty. The Court found no “clearly-established” Supreme Court law supported the challenge.

The Court noted that Atkins v. Virginia held that it was unconstitutional to execute mentally retarded offenders, but left it to States to implement the procedural rules to prevent the execution of these offenders. The Court also noted that in Leland v. Oregon (1952), the Supreme Court held that Due Process was not violated when, for an insanity defense, a State required the defendant to prove his insanity beyond a reasonable doubt.

The Court also rejected the argument that requiring a mentally retarded person to prove his mental retardation beyond a reasonable burdened the Eighth Amendment right not to be executed. The Court found no Supreme Court decision holding that such a right exists.

The Court further noted that Georgia law affords a mentally retarded offender procedural safeguards. The Court rejected the argument that creating a burden on a defendant to prove mental retardation beyond a reasonable doubt creates too high a risk of erroneous executions, noting that any rule would allocate some risk to error to the defendant.

The Court rejected the dissent’s reliance on Pannetti v. Quarterman, finding that in an AEDPA habeas context, a court could not “import” a procedural burden of proof requirement from Panetti into the Atkins context.

Fulford: "Minor" is not anyone the defendant believes is a minor

In U.S. v. Fulford, No. 10-12916 (Nov. 14, 2011), the Court (Carnes, Dubina, Sands b.d.) held that the five-level enhancement of USSG § 2G2.2(b)(3) for distribution of child pornography to a minor did not apply when there was no evidence that the person who received the materials was a minor. The district court had imposed the enhancement because the evidence indicated that the defendant believed that the person who was receiving the materials was a minor; this person, even if an adult, was posing as a minor.

Reversing, the Court noted that the plain language of the definition of a “minor” in the Guideline did not include “anyone the defendant believes is under the age of 18.” Consequently, this omission foreclosed inclusion of this category as a basis for a § 2G2.2(b)(3) enhancement.. “Even if expanding the guidelines definition to cover the facts of this case would be an improvement, it is not our function to modify, amend, or improve statutes or guidelines.”

The Court found unpersuasive the government’s attempts to extend the rationales of other child pornography cases, in which enhancements were applied even though the victim was not a minor but a police officer posing as a minor. The Court contrasted the “clear intent” of Guidelines enhancements to apply in such cases with the text of the Guidelines in § 2G2.2(b)(3). The Court also questioned the reasoning of one of its precedents in which the term “minor” was interpreted “more broadly” than the actual language of the Guidelines.

The Court remanded the case to the district court, for it to rule in the first instance on the government’s alternative argument that the evidence showed that Fulford’s victim was, in fact, a minor.

Walton: Second Florida petition not "properly filed"

In Walton v. Sec. Dep’t of Corrections, No. 11-10558 (Nov. 9, 2011), the Court affirmed on untimeliness grounds the denial of habeas relief to a Florida inmate sentenced to death in 1989.

After his first state petition for habeas relief was denied by the Florida Supreme Court, Walton filed a second state petition. However, this second petition was not “properly filed,” as required to toll the running of AEDPA’s one-year statute of limitations for federal habeas petitions. The second petition was not properly filed because it was not accompanied with a brief in appeal of the denial of his first motion for postconviction relief, as required by Florida law. Although the Florida Supreme Court did not find that the second petition was untimely, the Court found that it was untimely, under Florida law, and therefore failed to satisfy the “properly filed” requirement of AEDPA.

Augustin: Terrorism convictions affirmed

In U.S. v. Augustin, No. 09-15985 (Nov. 1, 2011), the Court affirmed terrorism-related convictions in connection with a plans to provide support to al Qaeda and bomb the Sears Tower in Chicago.
The Court rejected the argument that the government should not have been permitted to amend the indictment to delete surplusage, noting that the government is in fact permitted to do so.
The Court also rejected the argument that the Constitution’s Treason Clause, which requires a showing that the defendant owed allegiance to the United States, foreclosed conviction under certain counts, because they did not allege that the defendants swore an oath of allegiance to al Qaeda. The Court noted that the statutes at issue did not have as an element allegiance to the United States, and therefore did not implicate the Treason Clause.
Though recognizing that the proof was "far from overwhelming," the Court rejected challenges to the sufficiency of the evidence, noting that the defendants photographed buildings as potential terrorist targets, and volunteered to serve under al Qaeda. Moreover, they participated in an oath ceremony.
The Court rejected the argument that the government’s involvement in creating the crime was so pervasive that it violated Due Process. The Court found that the conduct was not "outrageous."
The Court also rejected the argument that an FBI agent gave opinion testimony about the defendant’s criminal mind that was inadmissible under Fed. R. Evid. 704(b). Though recognizing that there is a "fine line" between testimony about what an observer "would take to be" the defendant’s intent and testimony about a defendant’s "actual state of mind," the Court concluded that the agent’s testimony left the ultimate issue of the defendant’s state of mind to the jury.
The Court found that the district court properly qualified a witness as an expert to testify about a criminal organization’s structure, noting the witness’ experience and qualifications.
The Court upheld the district court’s exclusion of testimony of a witness proffered by the defense to testify about gangs. The Court noted that, under Fed. R. Evid. 701, the testimony was only admissible to the extent it was based on perception, and impermissible if based on "expertise."
The Court found no error in the dismissal of a juror during deliberations. The district court has broad discretion in dealing with juror misconduct. Here, it questioned each of the other jurors individually, as well as the juror who was said not to want to follow the court’s instructions on the law.

Dominguez: Reversing and Affirming Cuban Baseball Player smuggling

In U.S. v. Dominguez, No. 07-13405 (Oct. 31, 2011) (2-1) (Tjoflat, J. dissenting in part), the Court reversed convictions arising under 8 U.S.C. § 1324 for transporting and harboring aliens (Cuban baseball players) based on the insufficiency of the evidence, but affirmed convictions for conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and abetting a smuggle.

The Court found that the evidence was insufficient to support convictions for transporting aliens within the United States to further illegal status, pointing that while they lived in the United States the baseball players played baseball, went out with friends, ate at restaurants, watched baseball games, and were showcased in front of Major League baseball scouts. The players lived freely and openly “and in no way acted in a manner suggesting they were avoiding immigration officials.” Contrary to the government’s contention, the three-month wait before the players were taken to immigration officials did not suffice to show illegal transportation,because there is no specific time requirement for presenting Cubans to immigration officials.

For the same reason, the Court reversed the “harboring” aliens convictions, finding that Dominguez did not facilitate the players’ escaping detection.

The Court affirmed convictions for conspiring to bring aliens to the United States, noting the testimony of a government cooperating witness that “he had an extensive and ongoing smuggling relationship with Dominguez,” including a $125,000 payment to fund the smuggling of the five Cuban baseball players.

The Court also affirmed aiding and abetting convictions, noting that Dominguez paid for the smuggling of the Cuban baseball players. The Court rejected the argument that the evidence was insufficient because Dominguez did not earn a substantial fee for signing the players to Major League contracts, noting that “financial success” is not an element of the offense.

The Court rejected the argument that the Wet Foot/Dry Foot policy of the Cuban Adjustment Act precluded having the requisite mens rea to unlawfully smuggle Cuban aliens. The Court found that the statute does not require “specific intent,” or “willfully” smuggling, but only a “reckless disregard” for the alien’s unauthorized status. Further, an undocumented alien who is in the United States must still be paroled, a process that reclassifies the alien from one who is illegally in the United States to one who is legally in the United States. Thus, the Wet Foot/Dry Foot policy “is not relevant to a conviction for smuggling Cubans into the United States.” For the same reason, the Court found no error in failing to instruct the jury about the Wet Foot/Dry Foot policy.

Guzman: Granting habeas relief based on false testimony

In Guzman v. Sec. Dep’t of Corrections, No. 10-11442 (Oct. 27, 2011), the Court affirmed the grant of habeas relief to a Florida death row inmate. The Court found that the Florida Supreme Court unreasonably applied Giglio when it ruled that Guzman was not entitled to a new trial based on false testimony presented to the jury.

The Florida Supreme Court ruled that while false testimony was presented at trial – two detectives falsely testified that a government witness received no benefit for cooperation when the witness was in fact paid $500 – this testimony was not “material.” The Florida Supreme Court reasoned that the witness’ credibility was amply impeached at trial. Reversing, the Court found that the impeachment was not so complete that there was “no reasonable possibility” that the false testimony could have affected the verdict. In addition, the remaining evidence of guilt was sufficiently “weak” “circumstantial” and “far from overwhelming” to foreclose an impact on the verdict. The witness was “critical” to the State’s case against Guzman, because she contradicted Guzman’s testimony about the events surrounding the murder. In addition, the witness changed her account after receiving $500 reward money.

The Court also found it significant that Guzman testified in his defense at trial, presented witnesses, and otherwise challenged the State’s evidence.

John Doe: "Unwavering Confidence" support Aggravated Identity Theft Conviction

In U.S. v. John Doe, No 09-15869 (Oct. 26, 2011), the Court held that there was sufficient evidence to sustain convictions for aggravated identity theft in connection with a passport application, in violation of 18 U.S.C. § 1028A(a)(1).
Citing U.S. v. Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010) and U.S. v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the Court noted that proof that a defendant "knowingly" used another person’s identity can be established based on circumstantial evidence such as the defendant’s prior use of this person’s identity to obtain a driver’s license or other identification. Here, John Doe had used the same person’s identity to obtain a Florida driver’s licence just months before attempting to use the identity to obtain a passport.
The Court also noted the defendant’s "unwavering confidence" in the accuracy of the identity he was using, as he returned to the Passport Agency, knowing that the Agency could have investigated whether the identifying information belonged to a real person.
Turning to sentencing, the Court rejected the argument that any misstatements the defendant gave about his name to a probation officer preparing a pretrial services report for a magistrate judge were "immaterial" to the prosecution, and therefore did not justify the imposition of a two-level "obstruction of justice" enhancement pursuant to USSG § 3C1.1. The Court noted that the "threshold for materiality is ‘conspicuously low’" with regard to § 3C1.1 enhancements. No actual, significant obstruction or hindrance is required.
The Court also rejected the argument that because pretrial services did not give him any Miranda warnings, the application of the enhancement violated the Fifth Amendment. The Court analogized an interview with pretrial services to "routine booking" questions where Miranda warnings are not required.

Perez: Counsel can't substitute for defendant's allocution

In U.S. v. Perez, No. 09-13409 (Oct. 26, 2011), the Court affirmed Hobbs Act and firearm possession convictions of several defendants arising out of plans to rob a check-cashing store and a fictional cocaine stash house, but, on plain error review, reversed one defendant’s sentence because the district court failed to afford him his right of allocution as required by Federal Rule of Criminal Procedure 32.

The Court rejected one defendant’s argument that the evidence was insufficient to support “constructive possession” of a firearm. The Court found sufficient evidence that the defendant knew of the presence of firearms, based on conversations that predicted the need for guns, and his direct involvement in the crime, including his possession of five stocking caps for use in an attempted robbery.

The Court rejected the argument that a prosecution witness, who invoked his Fifth Amendment right to silence at a pre-trial deposition, should have been compelled to answer defense questions. The Court noted that because the witness’ answers could plausibly contradict the statements he made in a signed affidavit, he would risk prosecution for perjury, and the district court therefore correctly did not compel answers in derogation of the witness’ right to silence.

The Court also rejected the argument that evidence obtained through wiretaps should have been suppressed that the government, because the government failed to demonstrate that it needed to conduct wiretap surveillance, as required by 18 U.S.C. § 2518(1)(c). The Court noted that without a wiretap the government “had only limited knowledge of the full extent” of the criminal activities of the defendants. The government had sufficiently described the limitations of alternative surveillance methods to justify use of a wiretap.

Turning to sentencing, the Court ruled that even though at sentencing defense counsel answered the district court on behalf of the defendant that the defendant “doesn’t wish to address the Court,” this did not satisfy Fed. R. Crim. P. 32. This rule requires the defendant to be aware of his right to allocute. Here, there was no evidence of such knowledge. Because it is presumed that a denial of the defendant’s right to allocute is prejudicial whenever the possibility of a lower sentence exists, the error affected the defendant’s substantial rights. The Court therefore vacated the sentence and remanded for resentencing.

Delgado: Double Jeopardy Inapplicable When Conviction Overturned on Legal Grounds

In Delgado v. Florida Dep’t of Corrections, No. 10-13490 (Oct. 13, 2011), the Court denied habeas relief to a Florida death row inmate convicted of two 1990 murders.

Delgado argued that Double Jeopardy should have precluded his re-prosecution for murder after his initial conviction for murder was overturned on appeal. The Court noted, however, that Double Jeopardy does not bar re-prosecution after a successful appeal unless the conviction was overturned because of the insufficiency of the evidence, i.e. the equivalent of a jury’s acquittal. In Delgado’s case the conviction was overturned not because of insufficient facts, but on the ground that it was obtained under a legally inadequate theory, that is, a theory of felony murder that did not require a showing that the predicate burglary involved surreptitious entry into a dwelling. Double Jeopardy, therefore, did not bar re-prosecution, and Delgado could not obtain habeas relief from his conviction or death sentence.

McKay: Actual Innocence does not encompass legal claims

In McKay v. U.S., No. 09-15099 (Sept. 22, 2011), the Court held that a career offender could not seek a sentence reduction in a proceeding under 28 U.S.C. § 2255 based on intervening Supreme Court caselaw that made one of his prior convictions no longer qualify as a “crime of violence.” The Court noted that the defendant had failed to challenge the prior conviction in his direct appeal of his sentence. He therefore waived the issue for a future § 2255 motion. The Court rejected the argument that the “actual innocence” exception might excuse the default. The Court held that the “actual innocence” exception applies only to “factual” innocence, not to legal claims. Here, the defendant did not argue that he was innocent of the prior carrying a concealed weapon offense, only that this offense no longer qualified as a “crime of violence.” The Court held that this did not suffice to establish “actual innocence.”

Jayyousi: Terror convictions affirmed; sentence reversed

In U.S. v. Jayyousi, No. 08-10494 (Sept. 19, 2011), the Court affirmed (2-1) the convictions of three defendants for offenses relating to their support for Islamist violence overseas, but vacated the sentence of defendant Padilla.

The Court rejected the argument that the district court erred in admitting under FRE 701 the testimony of an FBI agent about the meaning of code words in conversations among the co-defendants. The Court found that the testimony was based on five years of investigation, and review of thousands of wiretap summaries – it was rationally based on his perception. The Court noted it had “never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation.”

The Court rejected challenges to the sufficiency of the evidence, noting, inter alia, that defendant Padilla was “secretive” about his plans to attend an al-Qaeda training camp, that the conspirators planned for him to travel to fight in “jihad,” and that Jayyousi oversaw the purchase of satellite phones to send to Chechnya to aid in armed conflict.

The Court rejected Padilla’s challenge to the admission of statements he made without Miranda warnings during his interview with FBI agent at Chicago O’Hare airport. The Court noted that questioning at the border must rise to a “distinctly accusatory level” before a person is deemed in “custody.” The Court found that the questioning was not accusatory until one agent accused Padilla of links to a terrorist organization. It rejected the dissent’s contention that the questioning became accusatorial when an agent confronted Padilla about not the telling the truth and about the source and purpose of the money he had failed to declare.

The Court rejected Padilla’s argument that the indictment should have been dismissed because of the outrageous government conduct when he was held in custody as an enemy combatant at a Navy Brig in South Carolina. The Court held that the outrageous government conduct doctrine only applies when the government conduct relates to the defendant’s underlying or charged criminal acts. Padilla’s claim related to mistreatment at the brig after the conclusion of his criminal acts.

The Court rejected co-defendant Hassoun’s argument that the district court should not have excluded a statement that someone other than Hassoun recruited Padilla for jihad. The Court found that the statement lacked the exceptional trustworthiness required under FRE 807 to admit otherwise inadmissible hearsay.

Turning to sentencing, the Court affirmed the district court’s imposition of a Guidelines terrorism sentence enhancement. The Court found that the defendants’ intended outcome was to displace “infidel” government that opposed radical Islamist goals. As to Padilla, however, the Court reversed the district court’s 208 months’ sentence. The Court faulted the district court for failing to adequately reflect Padilla’s criminal history. The district court also failed to account for Padilla’s “heightened risk of future dangerousness due to his al-Qaeda training.” The district court also failed to consider significant distinctions between Padilla and the other offenders the district court referenced. because these offenders pleaded guilty, were convicted of less serious offenses, or lacked extensive criminal histories. Finally, although the district court’s reliance on Padilla’s harsh conditions of pretrial confinement was a valid basis for a sentence reduction, it did not justify a reduction as “extensive” as the one the district court gave Padilla. The Court therefore remanded the case for resentencing.

Valle: 2254 cannot be used to challenge clemency procedures

In Valle v. Sec. Fla. Dep’t of Corrections, No. 11-13962 (Sept. 8, 2011) the Court held that a habeas petition under 28 U.S.C. § 2254 could not be used by an inmate to challenge clemency proceedings. Complaints about clemency procedures may only be brought under 42 U.S.C. § 1983. The Court also denied a stay of execution, finding that Valle had not shown a substantial likelihood of success on his clemency claims.

Shaygan: Hyde Amendment Sanctions Reversed

In U.S. v. Shaygan, No. 09-12129 (Aug. 29, 2011) (2-1) (Edmondson, J., dissenting in part), the Court reversed an award of attorneys’ fees to an acquitted criminal defendant.

The Court noted that under the Hyde Amendment, an award of attorneys’ fees to a criminal defendant is only warranted when a prosecution is “vexatious, frivolous, or in bad faith.” Rejecting the district court’s finding that the Superseding Indictment was filed as a result of a motion to suppress, and therefore in “bad faith,” the Court noted that the Superseding Indictment was filed with the support of newly discovered evidence. The prosecution was therefore “objectively reasonable.” The Court recognized the prosecutor’s threat that a “seismic shift” in the case would occur if the defense filed a motion to suppress, but found that this comment did not establish that the ensuing Superseding Indictment (which added 118 counts to the original indictment) was filed in subjective bad faith; “tough negotiating tactics and harsh words used by prosecutors cannot alone be grounds for a determination of bad faith under the Hyde Amendment.”

The Court also found that the district court violated the rights of the prosecutors when it publically reprimanded them without first affording them due process. The Court pointed out that the district court failed to give the prosecutors notice that it was considering a public reprimand. The prosecutors had no meaningful opportunity to be heard, or to cross-examine any witnesses. The Court remanded the case for further proceedings, and declined to assign the case to a different judge.

[Dissenting, Judge Edmondson argued that “the prosecutor’s personal vindictiveness prominently marked the Government’s [prosecution].” He therefore would have affirmed the attorneys’ fees award.]

Lopez: "Thug Mansion" convictions affirmed

In U.S. v. Lopez, No. 09-12802 (Aug. 16, 2011), the Court affirmed fatal carjacking, drug trafficking, and firearm possession convictions and sentences of four co-defendants.

The Court rejected two drug trafficking co-defendants’ arguments that their trials should have been severed. The Court noted that defendants indicted together are usually tried together, and a defendant will rarely be able to show the requisite “prejudice” to avoid this result. Here, the co-defendants argued that they should not have been tried with co-defendants who were charged with crimes that were subject to the death penalty, but the Court found that this was not a sufficient ground for severance. The Court recognized that the joint trial brought into evidence the fact that two coconspirators had murdered a fellow drug dealer, his wife, and their two young children. But the district court instructed the jury not to consider this evidence against the co-defendants who were not charged with these crimes. In addition, the government presented “compelling evidence” of their guilt, mitigating the effect of “spillover” prejudice.

The Court rejected the argument that the district court, during jury selection, improperly required the co-defendants to agree unanimously on all 20 of their peremptory challenges. The Court noted that a district court is permitted to require co-defendants to agree by majority vote on the use of peremptories. In addition, other Circuits have held that it is not improper to require co-defendants to agree on the exercise of peremptory challenges.

The Court rejected the argument that there was insufficient evidence to support a search warrant of premises known as the “Thug Mansion.” The defendants argued that the passage of time between the murders and the search – 12 days – meant that probable cause had “faded away.” The Court pointed out that the police investigation continued during this period, and the “less-than-a-fortnight time lapse” would not prevent them from believing that evidence would still be found there.

The Court rejected a challenge to the admission of evidence of defendants’ prior drug deals. The evidence was admissible because it provided “context” and established the trust among the parties for the drug transactions that were part of the charged offenses.

Willis: Proper Limitations on 2255 resentencing

In U.S. v. Willis, No. 09-15676 (Aug. 17, 2011), the Court rejected a defendant’s arguments that he should have received additional sentence reductions at a § 2255 resentencing beyond no longer categorizing him as a career offender.

The Court found that Willis was barred from asserting additional ineffective assistance of counsel, because these claims were either waived in his brief, or had not been a subject of a certificate of appealability after being denied by the district court. The Court also found that the district court had properly limited Willis’ § 2255 resentencing, because it declined to review aspects of his sentence that were without error.

The Court also rejected the argument that his statutory right to receive 10-days notice of a PSR prior to (re)sentencing was violated. The Court found that any error was harmless, because the resentencing was limited to striking the career offender enhancement, and the resentencing PSR contained the same information as the original PSR, which Willis had received years earlier.

Barrington: Affirming Convictions for Inflating Grades

In U.S. v. Barrington, No. 09-15295 (Aug. 11, 2011), the Court affirmed convictions and sentences of a defendant convicted of computer fraud and aggravated identity theft in connection with a scheme to inflate grades of students at Florida A & M University.

The Court rejected Barrington’s challenge to the admission of his prior involvement in changing grades, finding the evidence admissible under FRE 404(b) to prove Barrington’s intent to commit the charged offense.

The Court also rejected the argument that Barrington should have been allowed to cross-examine a government witness about his pending state burglary charge, pointing out that this charge was only “marginally relevant,” and that other cross-examination adequately brought out the witness credibility issues.

Reviewing the issue for “plain error,” the Court rejected the argument that inflated grades did not constitute “a thing of value” for purposes of the federal fraud statutes. The Court found that by changing grades from failing to non-failing, the scheme deprived A&M of additional tuition the students would have paid to retake the classes. In addition, the scheme changed the residencies of students, depriving A&M of the higher tuition that would have been paid by non-resident students.

The Court rejected the argument that the passwords of A&M employees were not personal identity information for purposes of aggravated identity theft. The Court noted that the passwords were unique to the employees and allowed them to access the protected grading system.

Turning to Barrington’s 84 month sentence, the Court rejected the contention that the district court improperly drew an adverse inference, and imposed a higher sentence when, after the district court asked “Do you still maintain that you did nothing wrong?” Barrington remained silent. The Court noted that failure to accept responsibility was an appropriate consideration in the determination of the sentence.

The Court rejected a challenge to the calculation of the “loss” amount based on the cost of students of retaking classes that they would have failed, but for the changed, inflated grades. The Court noted that the district court relied on the cost of tuition for the affected credit hours.

The Court also rejected a challenge to a sentence enhancement based on the use of “device-making equipment”and the production of “unauthorized access devices.” The Court found that the use of key loggers to use usernames and passwords to access identifiable student accounts met the statutory definition.

Singletary: Guess not enough to support restitution calculation

In U.S. v. Singletary, No. 09-13892 (Aug. 15, 2011), the Court vacated a $ 1 million restitution order in a mortgage fraud case, because the district court failed to support this order with specific factual findings.

The Court pointed out that, unlike the amount of “loss” under the Sentencing Guidelines, which is determined using the greater of actual loss or intended loss, restitution must be based “on the loss the victim actually suffered.” The Court noted that at sentencing and restitution hearings, the government failed to establish the amount of the mortgage losses to the Federal Housing Authority (“FHA”). Further, the district court stated it might make a “reasonably intelligent guess” of the restitution amount, when in fact it was required to make specific factual findings.

The Court therefore vacated the restitution order and remanded the case for further proceedings. The Court instructed that on remand the government “is not receiving another bite at the apple.” The district court was instructed to calculate restitution based on “the evidentiary record as it now exists.”

Langford: Upholding Bribery Convictions of former Birmingham mayor

In U.S. v. Langford, No. 10-11076 (Aug. 5, 2011), the Court (Marcus, Anderson, Mills b.d.) affirmed the convictions of a former Jefferson County, Alabama County Commissioner, and Mayor of Birmingham.

The Court rejected challenges to the sufficiency of the evidence supporting convictions of using the mail and wires to deprive the public of honest services. The Court found that Langford accepted bribes, which he did not disclose, and used the mails and wires to execute his scheme.

The Court also rejected a challenge to the district court’s refusal to redact the reference to Langford’s “gambling winnings” in his tax returns, noting, inter alia, that one might draw an inference that he was a law-abiding citizen from his dutiful report of these winnings.

The Court also rejected the argument that business records should not have been admitted, because the bank custodian had no personal knowledge of the documents. It sufficed that the custodian could testify that the documents were kept in the regular course of business.

The Court further rejected Langford’s challenge to the district court’s denial of his request for a change of venue. The Court noted that the trial occurred in Tuscaloosa, not in Birmingham or Jefferson County. The Court found no evidence of “rampant pretrial publicity.”