Charles: Confrontation Clause does not permit translator's out of court statements

In U.S. v. Charles, No. 12-14080 (July 25, 2013), the Court held that the admission of third-party testimony as to the out-of-court statements made by an interpreter who translated Charles’ creole language statements into English during the Customs and Border Protection’s interrogation of Charles violated the Confrontation Clause. However, because the issue was raised for the first time on appeal, and there was no binding Circuit precedent on point, the error was not “plain” – and the Court affirmed the conviction.




The Court noted that under Crawford v. Washington and its progeny, the Confrontation Clause excludes out-of court “testimonial” statements. Here, the translator’s statements were testimonial – the government sought admission of statements made during interrogation, for the purpose of proving their truth. The Court found that its precedent in United States v. Alvarez had not addressed the Confrontation Clause admissibility of translator statements, and its hearsay determination was therefore not dispositive.



[Marcus, J., specially concurring, would not have reached the merits of the Confrontation Clause issue.]

Castillo: No prejudice in juror missing a day of trial

In Castillo v. Florida Sec. of DOC, No. 12-13053 (July 22, 2013), the Court reversed the grant of habeas relief to a Florida inmate sentenced to 15 years imprisonment for robbery.




At trial, viewing the unclear facts in the light most favorable to the defendant, her defense counsel failed to object when the jury retired to deliberate even though one of the jurors had missed an entire day of testimony.



The district court had analogized the circumstances to the complete deprivation of the assistance of counsel, a per se prejudicial error under U.S. v. Cronic, 466 U.S. 648 (1984). Rejecting this reasoning, the Court noted that Cronic was limited to the “complete” denial of counsel. Here, Castillo’s counsel actively participated in the trial, giving an opening statement, cross-examining witnesses, and giving a closing argument urging acquittal. Consequently, assuming counsel’s failure to object was ineffective assistance, Castillo was still required to show “prejudice” under Strickland v. Washington. Castillo failed to show prejudice, because all of the witnesses who testified on the day the juror missed trial were prosecution witnesses, and all of the testimony they gave was incriminating (and Castillo did not testify in her defense).

Brown: Conflict-Free counsel not basis for 2255 relief

In Brown v. U.S., No. 09-10142 (July 10, 2013), the Court rejected a federal inmate’s § 2255 challenge to his death sentence for a 2002 murder of a federal employee.




The Court rejected the claim that trial counsel failed to adequately present mitigating evidence, finding that the topics cited in Brown’s § 2255 motion were already addressed at the original penalty phase. “Even if we could say that some of the information about Brown’s childhood drug and alcohol abuse was new and relevant mitigating evidence, we cannot fairly conclude on this record that there is a reasonable probability the jury’s balancing of the aggravating and mitigating factors would have been affected. Brown committed a brutal, unnecessary crime, his criminal record was lengthy, and the victim was beloved.”



The Court rejected the argument that one potential juror had not been asked follow-up questions about her views on the death penalty, finding that Brown did not previously raise the issue on direct appeal, having only mentioned in footnotes in his briefs unaccompanied by any claim of error. Appellate counsel were not ineffective in failing to raise this issue, because it had “so little merit.”



Finally, the Court rejected the argument that Brown should have been entitled to new, conflict-free habeas counsel, after his counsel had been reprimanded by the district court for contempt of court for having contacted jurors at the original trial without court permission. Brown alleged that his new attorney would have argued that the district court consider a juror affidavit. But the Court pointed out that this affidavit was not competent evidence, so “it would have been futile for the district court to have appointed new counsel in this case to further press the juror’s affidavit.”

Scrushy: Recusal motion correctly denied

In U.S. v. Scrushy, No. 12-10694 (July 15, 2013), the Court affirmed the denial of a motion to recuse a district judge from a case, and the denial of a motion for a new trial.




The motions arose out of evidence that jurors in the Scrushy trial had engaged in improper deliberations. During the investigation of this matter, the district judge held an ex parte meeting with U.S. Marshals who told him some of the juror evidence was forged.



The Court rejected the argument that the district judge must be recused because of this ex parte meeting, noting that the judge had resolved the matter in Scrushy’s favor. A disinterested observer would therefore not doubt the judge’s impartiality.



Turning to the motion for new trial based on newly discovered evidence, the Court found that one ground for this motion – selective prosecution – was not a proper ground: the decision to prosecute has no bearing on the integrity of the trial or verdict. In addition, selective prosecution challenges are waived if not raised before trial, and Scrushy offered only “feeble” reasons for having delayed bringing this motion until after trial.



The Court also found no merit in the claim that Scrushy was deprived of a “disinterested” prosecutor because a U.S. Attorney continued being involved after recusing herself from the case. The Court found that the U.S. Attorney’s “limited involvement” did not deprive Scrushy of a disinterested prosecutor.



Finally, the Court rejected as not “material” evidence that jurors had a romantic interest in the FBI case agent. “The assertion that a mere expression of attraction would infect the jury’s decision with bias strains credulity.”

Burns: No error in failing to give "no adverse inference from silence" instruction

In Burns v. Sec., Fla. Dep’t of Corrections, No. 11-14148 (July 8, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate sentenced to death for a 1997 murder. The Court rejected the argument that it was “structural error” for the Florida sentencing court to decline to instruct the jury, at the penalty phase, that it should draw no adverse inference from the defendant’s failure to testify. The Court pointed out that the Supreme Court has yet to reach the issue whether the failure to give a “no adverse instruction” is structural error. The Court also rejected the argument that the failure to give a “no adverse inference” instruction was not harmless. The Court pointed out that the state never commented on Burns’ failure to testify. Further, the prosecutor’s questions about the defendant’s lack of remorse were legitimate responses to the defendant’s evidence which attempted to show he was remorseful.

Victor: Affirming Physical Restraint Enhancement

In U.S. v. Victor, No. 12-12809 (June 27, 2013), the Court affirmed a 121-month sentence imposed for bank robbery, brandishing a firearm, in violation of 18 U.S.C. §§ 2113(a) and 924(c)(1)(A)(ii).




The Court rejected a challenge to the imposition of a two-level Guideline “physical-restraint” sentence enhancement. The Court found that Victor, by threatening a bank lobby employee with what the employee believed to be a gun to prevent her from escaping, “physically restrained her within the Guidelines’ meaning.”



The Court also rejected a substantive reasonableness challenge to the sentence. The sentence was within the Guidelines range, and the district court considered the § 3553(a) factors.

Bane: Fines Subject to Apprendi

In U.S. v. Bane, No. 11-14158 (June 28, 2013), the Court vacated the restitution and fine portions of a sentence, but otherwise affirmed the term of incarceration imposed on a defendant convicted of health care fraud and of making false claims against the government.




The Court affirmed the imposition of a 20-level enhancement for an offense involving a loss in excess of $7 million, rejecting Bane’s argument that the loss amount should not include the value of oxygen provided that was medically necessary for patients. The Court noted that a Guideline Application Note provides that no credit for value received should be given in cases in which “regulatory approval by a government agency” was obtained by fraud. The Court applied this rule, because Bane obtained Medicare’s approval to pay for oxygen by fraudulently representing that the requisite lab test had been performed. [Dissenting from this portion of the decision, Judge Jordan reasoned that “regulatory approval” referred to an FDA-type approval of the introduction of a drug into the market.]



For the same reason, the Court rejected Bane’s challenge to the finding that his crime involved 270 victims.



The Court also affirmed the imposition of a “sophisticated-means” enhancement, pointing out that Bane recruited oximetry labs to participate in the scheme, installed software, and falsified test results.



The Court reversed the restitution order, pointing out that restitution should not result in a “windfall” to the victims. Here, 80 to 90 percent of the services Bane provided were medically necessary, and the victims paid no more for the services than they otherwise would have. On remand, Bane would bear the burden of proving the amount of the offset to which he was entitled.

Turning to the fine, the Court agreed with Bane that the $3 million fine violated Apprendi because exceeded the $ 2.5 million maximum amount authorized by the jury’s convictions – the fine was based on the loss amount under an alternative calculation by the district court, not submitted to the jury. Reviewing the issue for plain error, and applying a recent Supreme Court case, the Court held that fines are subject to Apprendi. The Court therefore found that the $3 million was “plain error.”

Rojas: Marriage Fraud Prosecution Barred by Statute of Limitations

In U.S. v. Rojas, No. 12-15364 (June 20, 2013), the Court held that a marriage fraud prosecution was barred by the five-year statute of limitation, because the indictment was filed more than five years after the date the couple married.




The government claimed that the crime was not complete until investigators interviewed the couple and “became aware of the fraud” and of the marriage’s unlawful purpose, or until the defendants took the additional step of filing for immigration benefits. Rejecting these arguments, the Court held that marriage fraud is not a “continuing offense,” but is complete once the couple “enters into” the marriage.

Valerio: Stop and frisk "well outside" Terry

In U.S. v. Valerio, No. 12-12235 (June 20, 2013), the Court held that a seizure of marihuana plants in a Deerfield Beach, Fla., warehouse was not authorized by the Fourth Amendment, and that this evidence therefore should have been suppressed.




Surveillance of Valerio, including a K-9 sniff outside a unit he rented at a warehouse, failed to find evidence that, as police suspected, he was involved in a marihuana grow operation. One week after this unsuccessful surveillance ended, police went to Valerio’s home, waited across the street until he emerged and entered his truck. At that point, the officers blocked his exit, approached him with gun drawn and pointed in his direction, ordering him out of his truck. Police conducted a full-body pat-down search of Valerio. Police then questioned Valerio, who eventually admitted to growing marihuana at the warehouse.



The Court noted that the constitutionality of Valerio’s seizure in his driveway turned on whether it was a valid warrantless “stop-and-frisk” under Terry v. Ohio. The Court noted that “[t]he investigative stop contemplated by Terry is not a policing tool that can be constitutionally deployed in any context in which law enforcement has reasonable suspicion that an individual is involved in criminal activity. Rather, it may be used only within the ‘rubric of police conduct’ addressed in Terry, for which the timing and circumstances surrounding the investigative stop matter.”



Here, the seizure was “well outside” Terry. It was “not responsive to the development of suspicion within a dynamic or urgent law enforcement environment. Rather, the officers went to Mr. Valerio’s home nearly a week after they had last observed him do anything.” In view of the lack of exigency, the officers should have acted in conformity with the Fourth Amendment. The Court vacated the denial of the motion to suppress and remanded the case to the district court, pointing out that evidence obtained as a result of an illegal seizure “is suppressible as fruit of the poisonous tree.”

Pacchioli: Jury read-back not needed when it would not 'clearly benefit" defendant

In U.S. v. Pacchioli, No. 12-12913 (June 19, 2013), the Court affirmed convictions of contractors convicted of paying kickbacks to hospital facility managers to obtain contracts with South Florida hospitals, in violation of 18 U.S.C. § 666(a)(2).




The Court rejected one defendant’s claim that the statute of limitations barred his conviction because he agreed to give a bribe more than five years before the filing of the indictment. The Court noted that the statute of limitations begins to run when the crime is “complete.” The Court pointed out that the bribery statute is phrased in the alternative, criminalizing the agreement to give a bribe, offering to give a bribe – or giving the bribe. Here, the government alleged, and the jury found, the giving of the bribe – the installation of free generators at the hospital facility manager’s home – within the five-year limitations period.



The Court rejected a challenge to the sufficiency of the evidence, pointing the “remarkable coincidence” that the defendant gave free goods and services to the three hospital facility managers who were awarding him contracts.



The Court also rejected the argument that the district court abused its discretion when it failed to allow defense cross-examination of a government witness regarding a statement that the witness’s lawyer had made earlier about the witness’s mild cognitive impairment. The Court noted that the witness was subject to extensive cross-examination, which gave the jury the opportunity to evaluate the witness. Thus, an error in excluding the testimony was “harmless.” The Court noted that the lawyer’s statement was not admissible under Fed. R. Evid. 801(d)(2), because this rule applies only to the agents of party opponents, and the government’s witness was not a party opponent.



The Court rejected the argument that the district court abused its discretion when, in response to a request from the jury, it declined to read back requested trial testimony. The Court noted that the requested testimony “did not clearly benefit” the defendant’s case, and the defendant therefore could not show prejudice.



Finally, the Court rejected one defendant’s claim that the indictment was deficient, noting that it was being raised for the first time on appeal. http://www.ca11.uscourts.gov/opinions/ops/201212913.pdf

Reaves: No prejudice in failing to present voluntary intoxication defense

In Reaves v. Sec., Fla. Dep’t of Corrections, No. 12-11044 (May 30, 2013), the Court reversed the grant of habeas relief to a Florida death row inmate, finding that the district court erred in determining that Reaves suffered “prejudice” as a result of his trial counsel’s failure to present a voluntary intoxication defense.


The Court noted that most of the expert testimony supporting a voluntary intoxication defense would have been inadmissible at Reaves’ retrial. The expert opinions were based not on cocaine use alone, but on years of chronic substance abuse – a factor that would not be relevant under Florida law. In addition, the Court pointed to evidence of premeditation, rejecting the argument that killing a police officer was so clearly ill advised: “people sometimes make bad decisions and do stupid things.”

The Court, however, rejected the State’s attempt to appeal the district court’s grant of an evidentiary hearing regarding ineffectiveness of counsel at the penalty phase. The Court held that this was an interlocutory non-appealable order.

Philidor: IRS verifies identifying information before issuing refunds

In U.S. v. Philidor, No. 13-13679 (May 29, 2013), the Court rejected the argument that the government failed to prove that the fraudulent tax return filing offense involved more than 250 victims and therefore qualified for a sentence enhancement under USSG § 2B1.1(b)(2)(C).




The Court noted that the defendants’ bank statements listed over 250 Social Security numbers of recipients of tax refunds. The district court could infer “based on common sense and ordinary human experience” that the Internal Revenue Service verifies identifying information, like Social Security numbers, before issuing a tax refund. Consequently, the refunds were associated with real people. In addition, the district court did not need to find that the persons were living, because the Guideline does not distinguish between living and deceased persons.

Whatley: In court identifications not subject to prescreening

In U.S. v. Whatley, No. 11-14151 (June 3, 2013), the Court affirmed bank robbery convictions and reversed an “abduction” sentence enhancement.

The Court rejected the argument that the admission of in-court identifications of Whatley by bank employees violated Due Process. The Court found that the recent decision in Perry v. New Hampshire, 132 S.Ct. 716 (2012), held that judicial pre-screening of reliability is not required to address identifications made in suggestive circumstance (for example, as Whatley claimed, in-court identifications made years after the incidents), unless the identifications were the result of improper police conduct. Here, the identifications were made in court, where Whatley was able to confront the eyewitnesses and highlight the frailties of their identifications.

The Court rejected the argument that the district court erroneously admitted under FRE 404(b) evidence that Whatley attempted another bank robbery. The Court found that the “similarities between the charged robberies and the uncharged bank robbery ... marked the crimes as the handiwork of Whatley.” They therefore suggested a modus operandi.

The Court also rejected (2-1, Jordan, J., dissenting) the argument that the district court should have granted a new trial because it was discovered that a newspaper article about one of Whatley’s robberies was considered by the jury during deliberations, as the result of a computer glitch in the scanning of trial exhibits. The district court conducted a thorough examination of each juror, and found that the jurors did not consider the article “until the final hours of their deliberations” – a period during which they remained deadlocked. Finally, the government’s evidence on the one count of conviction decided after the jury saw the document was “overwhelming.”

Turning to sentencing, the Court held that a sentence enhancement for “abduction” pursuant to USSG § 2B3.1(b)(4)(A) was erroneously imposed based on Whatley’s herded the bank employees inside the bank. The Court noted that Whatley never took the employees outside the bank. The Court noted that the dictionary definition of “abduction” refers to “the act of leading someone away,” as in a kidnapping.

Diaz-Calderone: Prior plea colloquy qualifies defendant for "crime of violence"

In U.S. v. Diaz-Calderone, No. 12-12013 (May 23, 2013), the Court affirmed a finding that a defendant’s prior aggravated battery on a pregnant victim, in violation of Fla. Stat. § 784.045(1)(b) was a “crime of violence” for purposes of imposing a 16-level Guideline sentence enhancement on a deported alien who reentered the United States illegally.

The Court acknowledged ambiguity in the Florida statute regarding whether it constituted a “crime of violence,” because this statute encompasses both a mere “touching,” and a striking or the causing of bodily harm.

However, using the modified categorical approach, the district court correctly relied on the defendant’s plea colloquy, and not just the probable cause arrest affidavits (which would not have sufficed to determine whether the prior conviction was a “crime of violence.”).   The tape of the state judge’s acceptance of Diaz-Calderone’s nolo contendere plea indicated that Diaz-Calderone admitted to what the affidavit said he did, namely striking the pregnant victim.  Therefore, the district court correctly concluded that in his case the prior aggravated battery was a crime of violence.

Dupree v. Warden: Recommending Stricter Review of Unobjected to R&R Issue

In Dupree v. Warden, No. 11-12888 (May 7, 2013),


the Court vacated the denial of habeas relief because the district court failed to address all issues raised in a habeas petition, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) (district court must address all issues raised in a habeas petition, regardless of whether relief is granted or denied).

The Court noted, however, that the issue that the district court had failed to address was also not addressed by a Magistrate Judge in his Report and Recommendation, and that the habeas petitioner had failed to object in the district court to the Magistrate Judge’s failure to address this issue. The Court noted that in the Eleventh Circuit, the unobjected-to legal issue is nonetheless reviewed de novo by the Court of Appeals. The Court added a lengthy “recommendation,” urging the full court en banc, or by administrative rule-making, to change its standard of review. The Court noted that in a majority of Circuits a party’s failure to object to a Report and Recommendation results in waiver of that issue, with plain error review only when in the “interests of justice.” The Court advocated adoption of this stricter rule, noting that it prevents “sandbagging” the district court.

Hamilton: Crack Cocaine offender bears burden to show whether cocaine amount makes him eligible for reduction

In U.S. v. Hamilton, No. 12-10899 (April 23, 2013), the Court reversed the denial of a crack cocaine offender’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).


Based on Hamilton’s “relevant conduct” and the “reasonably foreseeable acts of others in furtherance of jointly undertaken criminal activity,” the district court at the initial sentencing held Hamilton accountable for “at least 1.5 kilograms” of crack cocaine. This established a base offense level of 38.

As a result of subsequent retroactive Guideline amendments, in order for a crack cocaine offense to subject a person to level 38, the offense would have to involve 8.4 kilograms of cocaine.

It was unclear whether, after the Guideline amendments, Hamilton was entitled to a Guideline sentence reduction, because an offense involving “at least 1.5 kilograms” of crack cocaine can involve more, or less, than 8.4 kilograms.

The Court therefore instructed the district court on remand to determine whether Hamilton was now accountable for 8.4 kilograms of crack cocaine. The Court instructed the district court not to consider any new evidence, and not to enter any finding inconsistent with an original finding. If the district court could not determine Hamilton’s drug quantity with “sufficient specificity,” the court should not lower the sentence, because Hamilton, as the § 3582(c)(2) movant, bore the burden of showing that he would have received a lower sentence under a lower Guidelines range.

Williams: Nonexistent precedent precludes habeas relief

In Williams v. Warden, No. 11-13306 (Apr. 11, 2013) (2-1), the Court held that the “savings clause” of 28 U.S.C. § 2255 did not authorize Williams to bring a habeas petition under 28 U.S.C. § 2241 challenging whether three violent felony predicate convictions supported his sentence enhancement under the Armed Career Criminal Act (ACCA). The Court reasoned that because Williams could and did raise this issue on direct appeal and in his first § 2255 motion, the savings clause does not apply.

The Court pointed out that § 2255's savings clause provides that once a court has denied a petitioner relief, a habeas remedy is not available unless the remedy was “inadequate or ineffective” to test his claim. This erects a “jurisdictional” barrier against habeas remedies.

The Court noted that the savings clause had to interpreted in a way that did not “swallow up” the limitations on second § 2255 motions. “If possible, we try to avoid interpreting a statute in such a way that any part of it becomes mere surplusage.”

The Court held that for a challenge to a sentence to pass muster under the savings clause, it must be based on a retroactively applicable Supreme Court decision, that overturned circuit precedent that had squarely foreclosed a claim.



Williams could not satisfy this test, because at the time of his initial motion, no Circuit precedent foreclosed his sentencing challenge, which relied on Begay, a Supreme Court decision decided after his appeal and his initial § 2255 motion.



[Dissenting. Judge Martin wrote that “prexistence or nonexistence of circuit precedent has no bearing” on whether a defendant is eligible for habeas relief. Martin reasoned that if Williams was never a career criminal in light of Begay, then his continued incarceration violates due process.]

Hall: Guideline definition of "Crime of Violence" is Binding

In U.S. v. Hall, No. 12-11343 (April 16, 2013), the Court held that Hall’s prior conviction for possession of an unregistered sawed-off shotgun in violation qualified as a "crime of violence" for purposes of the USSG § 2K2.1(a)(4)(A) enhancement. The Court pointed out that the commentary to the Guidelines that defines a "crime of violence" explicitly states that unlawfully possessing a sawed-off rifle is a crime of violence. The Court noted that this Guideline commentary is "binding." Consequently, the Court rejected Hall’s arguments, based on caselaw interpreting a "violent felony" under the Armed Career Criminal Act (ACCA), that possession of a sawed-off shotgun should not qualify as a "crime of violence." These arguments were unavailing in the face of the binding Guideline commentary.

Hinds: Post-FSA Sentencing qualifies for FSA lower minimums

In U.S. v. Hinds, No. 11-16048 (April 9, 2013), the Court held that the Fair Sentencing Act (FSA)’s lower mandatory minimum term applied to a defendant who was resentenced after the FSA took effect. The Court noted that it had not addressed whether the FSA applied to a defendant who was resentenced (as opposed to originally sentenced) post-FSA. Finding "no meaningful difference between an initial sentence and a resentencing post-Act," the Court held that the FSA applied to Hinds, and vacated Hinds’ sentence and remanded for resentencing.

Melson: Habeas Petitioner failed to Establish Reasonable Diligence

In Melson v. Comm’r, Ala. Dep’t of Corrections, No. 11-13512 (April 4, 2013), the Court affirmed the dismissal as time-barred of Melson’s federal habeas petition. The Court found no need to address whether the AEDPA one-year limitations period should equitably tolled based on Melson’s counsel’s failure to timely file a state post-conviction motion, because Melson’s himself repeatedly failed to pursue his federal habeas proceeding with reasonable diligence.

Overstreet: Wife's Murder is valid basis for upward variance to 420 months

In U.S. v. Overstreet, No. 11-16031 (March 28, 2013), the Court affirmed a 420-month sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), finding that the variance above the Guideline range of 180-188 months was supported by the district court’s finding, by a preponderance of the evidence, that the defendant murdered his wife.




The Court noted the uncontradicted evidence pointing to Overstreet’s responsibility for his wife’s death. Although the murder was not connected to the offense of conviction, the district court had authority to consider it under its § 3553(a) discretion. In addition, the Court noted Overstreet’s “exceptionally violent and heinous” past criminal history, and that he committed the murder and the unlawful gun possession while on parole.

Coronado-Cura: Simple Vehicle Flight is Aggravated Felony

In U.S. v. Coronado-Cura, No. 12-12344 (March 26, 2013), the Court held that “simple vehicle flight” in violation of Fla. Stat. § 316.1935(2) qualifies as an “aggravated felony” for purposes of an 8-level Guideline sentence enhancement for a defendant convicted of illegally entering the United States.




The Court noted that vehicle flights create a risk of car crashes, and that the Guidelines definition of risk include the risk that force will be used against the person or property of another (regardless of whether that force comes directly from the fleeing offender or the pursuing police officers). The Court also noted its precedent in Petite which had held that simple vehicle flight qualified as a “violent felony” for purposes of the Armed Career Criminal Act.

Cruz: Target Cashier Abused Her Trust

In U.S. v. Cruz, No. 11-12568 (March 26, 2013), the Court, for an offense involving aggravated identity theft, upheld (1) the imposition of a sentence enhancement under U.S.S.G. § 2B1.10(b)(1) for the use of device-making equipment, and (2) a sentence enhancement under § 3B1.3 for abuse-of-trust.

The offense involved the fraudulent use of credit card numbers obtained through a waitress at a restaurant who used a credit card skimmer. Cruz claimed that he should not be subject to the § 2B1.10(b)(1) use-of-device-making-equipment enhancement, because another Guideline provided that this enhancement was inapplicable when a defendant, like Cruz, was already subject to the mandatory term of imprisonment under 18 U.S.C. § 1028A for aggravated identity theft. Rejecting this argument, the Court held that the Guideline only precluded an additional enhancement based on “the transfer, possession, or use of a means of identification,” not based on the use of device-making equipment.


The Court also rejected the argument of a cashier at a Target store that her position as a mere cashier did not create the kind of trust that triggered an “abuse of trust” sentence enhancement. The Court found that the cashier abused the authority of her position at Target to help co-conspirators use credit cards without authorization.

Carillo-Ayala: Firearms sales make drug trafficker safety-valve ineligible

In U.S. v. Carillo-Ayala, No. 11-14473 (March 22, 2013), the Court held that a defendant who sold drugs and firearms was not eligible for a “safety-valve” sentence reduction, because of the “connection” between the firearms and the drugs.




Defendants like Carillo-Avala, who are convicted of trafficking in certain quantities of drugs are subject to statutory mandatory minimum sentences – unless they qualify for the “safety-valve.” Carillo-Avala’s safety-valve eligibility turned on whether there was a “connection” between his drug trafficking offense and his possession of firearms, when his involvement with firearms was limited to his sale of firearms to a drug dealer.



The Court noted that only a “narrow class” of defendants are eligible for the safety-valve. Though rejecting the government’s argument that a “connection” between drugs and firearms existed simply because the firearms were part of the “relevant conduct” for the drug offense, the Court found that a “connection” requires less proof than a showing that firearms were possessed “in furtherance” of a drug offense. The “connection” is established if the defendant possesses a firearm “in close proximity” to drugs, or the firearm “facilitates” the drug offense by “emboldening” the defendant, or instills confidence in others, or helps the defendant avoid detection.



For Carillo-Ayala, the “connection” was established not because the firearms transactions created trust for the drug transactions – “greased” the drug transactions – but because he might have put the money from his firearms transactions to work in his drug enterprise, because the firearms he was selling to a drug dealer would help this drug dealer continue in the drug business and come back to Carillo-Ayala for more drugs, and because of the proximity of the firearms to the drugs. Carillo-Ayala did not bear his burden of showing that the firearms did not facilitate his drug transactions.

Adkins: Habeas relief for Batson violation

In Adkins v. Warden, No. 11-12389 (Feb. 27, 2013) (2-1), the Court granted habeas relief to an Alabama inmate sentenced to death for a 1988 murder, finding that the State exercised peremptory strikes to eliminate potential black jurors in violation of Batson v. Kentucky.




The Court found that the Alabama court failed to consider “all relevant circumstances” in determining whether the exclusion of black jurors resulted from “purposeful discrimination “ The State used peremptory strikes to exclude nine of eleven eligible black jurors. The prosecutor noted the race of every black veniremember, and only black veniremembers, on the jury list the prosecutor relied upon in striking the jury, marking each of them with a “BM” or “BF.” The prosecutor’s reasons for striking jurors were contradicted by the record. An ex parte affidavit prepared by the prosecution was relied on.



Reviewing the State’s use of peremptory challenges de novo, the Court found that the strikes were used in a discriminatory manner. The Court noted that the reasons the prosecutor gave for excluding black jurors were not the basis for excluding similarly-situated white jurors.

Hippolyte: Mandatory minimum Crack Offender Not Eligible for sentence reduction

In U.S. v. Hippolyte, No. 11-15933 (March 14, 2013), the Court held that a crack cocaine offender sentenced in 1996 to a statutory mandatory minimum sentence was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the recent Guideline Amendments.




The Court rejected the argument that the Guidelines’ new definition of the term “applicable guideline range” made Hippolyte eligible for a § 3582(c)(2) reduction, holding that it has “nothing to do with mandatory minimums.”



The Court also noted that the Fair Sentencing Act (FSA) does not apply retroactively to Hippolyte’s 1996 sentence. Hence, any Guideline reduction could not apply to Hippolyte because his sentence was based on an unchanged statutory mandatory minimum.

Nelson: Honest services statute not void-for-vagueness

In U.S. v. Nelson, No. 12-11066 (March 13, 2013) (2-1), the Court rejected a void-for vagueness challenge to the constitutionality of the honest-services mail fraud statute, and affirmed convictions of mail fraud and bribery of a former member of the Board of the Jacksonville, FL Port Authority.




The Court noted that although Nelson was not paid for his work as a JaxPort board member, he was indisputably a “public official.” He agreed to represent the interests of a private firm that had business with JaxPort in exchange for monthly payments routed through a middleman. This was a “classic” bribery and kickback scenario. Nelson could not complain about vagueness.



The Court also rejected Nelson’s challenge to jury instructions, finding that his counsel agreed to the wording of one instruction and therefore waived the issue, and that the other properly directed the jury to look to Nelson’s state of mind.



The Court also rejected the argument that the district erred, under Fed. R. Evid. 403, in admitting testimony that one year prior to the charged bribery, Nelson met with JaxPort’s CFO and asked that a contractor be terminated and noted that a rival contractor was “ready to go.” The Court noted that the evidence corroborated parts of the government’s case.

Kuhlman: Chiropractor's sentence "substantively unreasonable"

In U.S. v. Kuhlman, No. 11-15959 (March 8, 2013), on a government cross-appeal of a sentence, the Court held that a sentence of probation and community service was “substantively unreasonable,” for a chiroptractor convicted of health care fraud involving close to $ 3 million.




. The advisory Guideline range was 57 to 71 months. After Kuhlman made full restitution of the close to $ 3 million he stole, and performed community service, the district court sentenced him to probation for time served. The Court found that this sentence failed to served the need for general deterrence, an important factor because health care “is so rampant that the government lacks the resources to reach it all.” The Court cited three of its precedents – Livesay, Martin and Crisp – which held that sentences for white collar defendants were too lenient and therefore “outside the range of reasonableness.” The Court added: “The Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status.”

Weeks: Judge may find "different occasions" ACCA enhancement

In U.S. v. Weeks, No. 12-11104 (Jan. 31, 2013), the Court affirmed the imposition of a mandatory minimum 180-month sentence under the Armed Career Criminal Act (“ACCA”), rejecting the argument that the sentencing court’s finding that the prior burglary offenses were not “committed on occasions different from one another” violated the Sixth Amendment, because this finding had to be made by a jury. The Court rejected Weeks’ reliance on dicta from Nijhawan v. Holder, 557 U.S. 29 (2009) that, in a criminal prosecution, “circumstance-specific” facts relating to a prior conviction would have to be found by a jury. The Court therefore held that it was bound by its prior holdings that district court may determine the factual nature of prior convictions, so long as they limit themselves to Shepard-approved sources.




Reviewing for “plain error,” the Court also rejected the argument that Weeks might only have been an accomplice for some robberies that others committed. The Court found no evidence in the charging documents that Weeks merely participated as an accomplice, and no Circuit or Supreme Court caselaw indicating that a charging document’s lack of specificity on this point mattered for ACCA classification purposes.

Hoffman: Mandatory Life Sentence Not Plainly Cruel and Unusual

In U.S. v. Hoffman, No. 12-11529 (Feb. 26, 2013), the Court rejected the argument that a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii) was “cruel and unusual” punishment in violation of the Eighth Amendment. Hoffman argued that his sentence violated the Eighth Amendment because he committed the two prior convictions that triggered the mandatory life sentence when the was a juvenile.




Reviewing the issue for “plain error” – Hoffman had not preserved the issue in the district court – the Court found no precedent that made the life sentence unconstitutional. The Court noted that Miller v. Alabama, 1232 S.Ct. 2455 (2012) involved a juvenile offender facing punishment for conduct committed when he was a juvenile. Here, Hoffman was an adult offender, not a juvenile.

Dell: Constitution does not require "innovative" defense counsel

In Dell v. U.S., No. 11-12904 (Feb. 27, 2013), the Court rejected a claim that defense counsel was constitutionally defective, under Strickland v. Washington, for failing to argue, either during sentencing or on direct appeal, for a downward variance based on the substantial disparity between the Sentencing Guidelines’ treat of crack and powder cocaine.




At the time of Dell’s direct appeal to the Eleventh Circuit, the Supreme Court had already decided Kimbrough, which held that a district court was authorized to grant a downward variance based on a policy disagreement with the crack guidelines. On appeal, Dell’s appellate counsel failed to seek a vacatur of the sentence based on Kimbrough. Dell’s co-defendants did press the issue, and ultimately, at resentencing, received lower sentences; Dell did not.



Since Dell’s counsel in the district court had also failed to raised a Kimbrough-type argument, the appeal could only have raised Kimbrough in a “plain error” argument.



The Court noted that competent counsel would have been able to show error, because under pre-Kimbrough law the district court treated the crack guideline as mandatory. The error would have been “plain” at the time of appeal. But appellate counsel would not have been able to show that the error affected his substantial rights. Nothing in the record in the district court at the original sentencing indicated that the district court would have imposed a lower sentence, even had a Kimbrough argument been made. Where the record does not provide any indication that there would have been a different sentence, the party with the burden of showing a difference loses. Thus, appellate counsel could not have shown that substantial rights would have been affected. Dell in turn did not receive ineffective appellate assistance of counsel, since he was not prejudiced by counsel’s performance.



The Court also held that trial counsel was not deficient at sentencing for failing to anticipate Kimbrough. The Court noted that it has never required counsel to anticipate future legal developments. Lawyers rarely, if ever, are required to be innovative to perform within the wide range of conduct that encompasses the reasonably effective representation mandated by the Constitution.



[Martin, J., concurring, questioned the Circuit’s rule that substantial rights are not affected when the Court cannot know whether the outcome would have been different. Martin noted that a sentencing hearing is not a forum for a judge “to air his list of grievances” about existing law. Martin noted that in view of a statement by the district court at a subsequent resentencing, Dell likely would have received a lesser sentence had his appellate counsel pressed the Kimbrough issue. Martin nonetheless stated she was bound by Circuit precedent to join the majority].

Gandy: Affirming ACCA sentence

In U.S. v. Gandy, No 11-15407 (Feb. 27 , 2013), the Court rejected a challenge to the determination that a defendant’s three prior convictions qualified as “violent felonies” for purposes of the mandatory 15-year sentence under the Armed Career Criminal Act (“ACCA”).




The Court rejected the argument that the information and certified judgment of conviction for one Florida prior offense cited only a sentence enhancement provision statute number, not the number of the substantive provision governing “aggravated assault.” The Court noted that the information quoted the text of the aggravated assault statute, and this sufficed.



Citing recent precedent, the Court rejected the argument that simple vehicle flight did not qualify as a “violent felony.” The Court also rejected the argument that the “residual clause” of ACCA is unconstitutionally vague.



The Court also rejected the argument that the sentence was invalid because Gandy was incorrectly advised at his plea hearing that the statutory maximum was 10 years, when in fact he was subject to a 15-year mandatory minimum. The Court noted that at sentencing the district court gave Gandy an opportunity to withdraw his plea, and he declined to do so.

Turner: No ACCA relief for 2255 movant

In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as “violent felonies” for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”).




The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”



The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”



The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”



The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.



[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]

Joseph: 30 year sentence for physician who dispense drugs unlawfully

In U.S. v. Joseph, No. 09-11984 (Feb. 21, 2013), the Court affirmed the convictions and sentences of a medical physician and his assistant convicted of dispensing controlled substances to drug abusers and pushers without a legitimate medical purpose and outside the usual course of professional conduct, in violation of 21 U.S.C. § 841(a).




The Court rejected the argument that a jury instruction erroneously instructed the jury to consider whether the defendants acted “in accordance with a standard of medical practice generally recognized and accepted in the United States.” The Court found that this instruction did not suggest that defendants’ actions be evaluated against a single national standard of practice. Instead it required the prosecution to prove that the actions were inconsistent with any accepted standard of professional practice.



The Court rejected the argument that there was no probable cause to support the issuance of a search warrant, pointing out that the 39-page affidavit provided substantial evidence that evidence of crimes would be found including evidence that the physician’s patients died from drugs after he prescribed them.



The Court also rejected a challenge to the admission of testimony that many of the patients either abused their drugs or sold their drugs, rejecting the argument that this evidence was unduly prejudicial.



The Court rejected a substantive reasonableness challenge to the physician’s 30-year sentence, noting that the district court could have imposed a “much more severe sentence.”

Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation

In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U.S.C. §§ 545 and 371, failed to state an offense. The Court therefore vacated all convictions and sentences.

The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.

The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.

Capers: Insufficient foundation for audio recording of drug buy

In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act.




The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.



The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.



The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.



The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.

Gibson: No Standing to challenge GPS-search of vehicle

In U.S. v. Gibson, No. 10-15629 (Feb. 14, 2013), the Court held that a defendant had standing to challenge the use of a GPS tracking device to locate a vehicle the defendant possessed – but only when the device was installed, not when the device was later used to seize incriminating evidence while the vehicle was being driven by another person


Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently. A GPS device was installed on the Avalanche without a warrant while it was parked in James Gibson’s driveway. Using the GPS, the police tracked the car making suspicious trips to Ocala, Florida, a “source city for narcotics.” The police stopped the vehicle for a traffic violation. Burton, not Gibson, was driving the Avalanche. Two kilos of cocaine were found inside.

The Court (2-1) held that Gibson lacked standing to challenge the search of Avalanche, because he was not the legal owner of this vehicle, he did not have exclusive custody or control over it, and he was neither a driver or passenger in it at the time it was searched.

Gibson had standing to challenge police testimony, based on the GPS, that Gibson was in a certain location while in possession of the Avalanche. But any error in admitting this evidence was harmless.

The Court rejected the argument that Double Jeopardy was not violated when the district court instructed the jury that it could convict a defendant for his renewed participation in a conspiracy for which he had already been convicted. The Court noted the defendant’s failure to object to this instruction, and the district court’s cautionary instruction to the jury that the defendant was not subject to multiple prosecutions for a single conspiracy. The district court instructed that the defendant liability was limited to acts performed after his first conviction, and this limitation ensured that he was not twice placed in jeopardy for the same conduct.

Darden: Conceding guilt not presumed to be ineffective

In Darden v. U.S., No. 10-16640 (Feb. 12, 2013), the Court held that U.S. v. Cronic (1984) does not require a court to presume that a defense counsel’s decision to concede guilt at trial on one of two robbery charges, without consulting the defendant, is ineffective assistance under the Sixth Amendment.




The Court noted that at trial “credibility must never be sacrificed.” This applies when the defendant “faces an unwinnable battle against one set of charges.” Here, Darden’s counsel conceded guilt as to one robbery “for the express purpose of preserving credibility with the jury to focus on” the other, contested, robbery. In addition, Darden vigorously stressed the lack of evidence as to the second robbery. This was not a case of counsel’s “betrayal of his client.”



The Court also found that the failure to consult with the defendant on the strategy of conceding guilt, “while certainly” among counsel’s duties, did not automatically prejudice the defendant.

Davis: Dismissal of juror "manifestly necessary"

In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013),



the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.




The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.



The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”

Slaughter: No Suppression of statement under Harris

In U.S. v. Slaughter, No. 11-15262 (Feb. 11, 2013), the Court affirmed convictions for use of the internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).




The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station. The Court held that the statement need not be suppressed as the fruit of a poisonous entry. The police had probable cause to arrest Slaughter, and gave him his Miranda warnings at the station house. Under these circumstances, New York v. Harris (1990) does not require suppression of the statement.



The Court also rejected the argument that the district court should have severed the count that charged Slaughter as a registered sex offender from the other count. The Court recognized that the evidence that Slaughter was a registered sex offender was “prejudicial,” but the jury had already heard substantial, sexually explicit evidence that he intended to engage in sexual activity with two underage girls, and planned to meet them at a hotel room.



Finally, the Court rejected the argument that Slaughter could not be guilty of committing a felony offense involving a “minor” while being a registered sex offender, because he was not dealing with actual minors, but government agents posing as minors. The Court noted that the statute criminalizes attempts to entice minors, which does not require an actual minor.

In Re Grand Jury Proceedings No. 4-10: Required Records Exemption applies

In In Re: Grand Jury Proceedings, No. 4-10, No. 12-13131 (Feb. 7, 2013), the Court rejected the argument by targets of a grand jury investigation that their Fifth Amendment privilege against self-incrimination shielded their records of foreign bank accounts from production to the government in compliance with a grand jury subpoena. The Court held that these records were exempt from the Fifth Amendment under the Required Records Exemption.

The Court found that, although the purpose of the Bank Secrecy Act and its implementing regulations, which required persons to keep and file reports regarding their relations with foreign financial agencies, was partly in aid of criminal law enforcement, it was “essentially regulatory.” The Court also found that such records are “customarily kept.” Finally, the Court found that the records had “public aspects” which render them analogous to public documents. Consequently, the Required Records Exemption applied, and the target could not invoke the Fifth Amendment as a ground for non-compliance with the grand jury’s subpoena of its records of its foreign bank accounts.

Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range

In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U.S.C. § 3582(c)(2).




Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.



The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.



The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.



The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.

Penney: 3.800 Motion not properly filed

In Penney v. Sec., Dep’t of Corrections, No. 10-14628 (Feb. 5, 2013), the Court held that a federal habeas petition was untimely because it was filed after the one-year limitations period under AEDPA.




The Court noted that the one-year period is tolled while a state prisoner has a “properly filed” state post-conviction motion pending in state court. Penney had filed a post-conviction motion under Fla. R. Crim. P. 3.800(c). The Court recognized that a Rule 3.800(c) motion might toll the AEDPA limitations period, but found that Penney had untimely filed this motion in Florida court, and it was therefore not “properly filed.” As a result, his federal petition was now untimely, because filed after the one-year AEDPA period expired.

Fordham:Skilling Not basis for invaliding bribe scheme

In Fordham v. U.S., No. 12-10299 (Jan. 31, 2013), the Court rejected a § 2255 challenge to convictions for defrauding a mental health center.




The defendants argued that their convictions should be vacated in light of Skilling v. U.S., 130 S.Ct. 2896 (2010), which limited “honest-services fraud” under 18 U.S.C. § 1346 to cases involving bribes and kickback schemes and not mere undisclosed self-dealing, or conflicts of interest.



The Court found that the defendants defaulted these claims by failing to raise them in the district court or on direct appeal of their convictions. The Court rejected the argument that the default could be cured because of “actual prejudice.” The Court found that the sporadic references at trial to “honest services,” and a single jury instruction on this now invalid theory, did not suffice to show prejudice. The record demonstrated that the jury was presented with evidence that they participated in a scheme involving the payment of bribes.



For the same reason, the Court rejected the argument that the defendants were “actually innocent.”

McGuire: Upholding Conviction and Sentence for firing at a helicopter

In U.S. v. McGuire, No. 11-12052 (Jan. 30, 2013), the Court rejected a sufficiency of the evidence challenge to a conviction for violating 18 U.S.C. § 32(a)(1) by firing a single shot from a handgun in the general direction of an airborne police helicopter.




McGuire admitted that a witness testified that he saw McGuire shoot a pistol skyward right toward the spotlight where a helicopter orbited. The Court noted McGuire’s argument that he was distraught over losing his girlfriend and his job, and wasn’t really aiming at the helicopter, but concluded that this was for the jury to decide.



The Court also held that a violation of 18 U.S.C. § 32(a)(1) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 924(c). The Court noted that even if the conduct was merely attempting to disable an aircraft, it “still involves an intentional act against another’s property that is calculated to cause damage and that is exacerbated by indifference to others’ wellbeing.”

Jimenez: Conflict of Interest alone is insufficient to misapply funds

In U.S. v. Jimenez, No. 11-15039 (Jan. 25, 2013), the Court held that the evidence was insufficient to support a conviction for violating 18 U.S.C. § 666 by intentionally misapplying $5,000 or more from an organization receiving federal funds.


Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida. During his tenure, the program paid $9,000 to the defendant’s wife to order 750 copies of her book entitled Travel Boy Helps Sebastian Trapping the Germs. It was not Jimenez, but Mason, Jimenez’s superior, who directed the payment of funds. Jimenez failed to complete the required “conflict of interest” disclosure form indicating that his wife had a contractual relationship with Head Start.

The government argued that Jimenez’s skirting of conflict of interest rules established a § 666 violation. The Court rejected this argument. The Court pointed out that the statute makes it unlawful to intentionally misapply funds. Here, it was not Jimenez, but his superior, Mason (who was also charged – and acquitted – of a § 666 violation), who directed the application of funds. The Court held that an undisclosed conflict of interest, standing alone, is insufficient to sustain a § 666 violation.

Grim: Statute adequately notifies defendants of death penalty aggravators

In Grim v. Sec. Fla. Dep’t of Corrections, No. 11-11890 (Jan. 22, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 1998 murder.




The Court rejected the argument that the indictment was defective because it failed to set forth the aggravating factor that was relied on as the basis for the imposition of a death sentence. The Court noted that the Fifth Amendment Indictment Clause is not applicable to the States.



The Court rejected the argument that the sentence was invalid because the jury was not required to find an aggravating factor beyond a reasonable doubt. The Court pointed out that the Florida Supreme Court had found that the jury unanimously found two aggravating factors, and recommended that the defendant be sentenced to death. The Court noted that it had recently held that a system of advisory jury verdicts does not violate the Sixth Amendment.



Finally, the Court rejected the argument that the indictment should have given the defendant notice of the aggravating factors it would rely on in obtaining the death penalty. The Court noted the Florida Supreme Court’s holding that the aggravating factors set forth in Florida’s death penalty statute notify defendants of the factors that support the death penalty, and no United States Supreme Court case has addressed this issue.

Hall: Transfer of identity is not "use"

In U.S. v. Hall, No. 11-14698 (Jan. 16, 2013), the Court held that the district court erroneously found that the offense involved more than 50 victims and therefore erroneously applied the four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B).


Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.

The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:

The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.


Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.

McIntosh: Indictment unnecessary to sustain sentence

In U.S. v. McIntosh, No. 10-15894 (Jan. 7, 2013),


the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).

The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”

The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.

Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”

Garcia-Sandobal: Disorderly Intoxication Counts as Criminal History

In U.S. v. Garcia-Sandobal, No. 11-12196 (Jan. 3, 2013), the Court held that a prior conviction for “disorderly intoxication,” in violation of Fla. Stat. § 856.011, counts for purposes of increasing a defendant’s criminal history category under the Sentencing Guidelines.

Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.

The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”

The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”

Petite: Any Intentional Vehicle Flight is a "Violent Felony"

In U.S. v. Petite, No. 11-14996 (Jan. 3, 2013), the Court, relying on Sykes v. U.S., 131 S.Ct. 2267 (2011) and overruling U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009), held that a prior conviction for intentional vehicular flight from an authorized law enforcement patrol car, in violation of Fla. Stat. § 316.1935(2), qualifies as a “violent felony” for purposes of the higher mandatory minimum punishment for convicted felons under the Armed Career Criminal Act (“ACCA”).
The Court noted that Sykes involved a “strikingly similar” Indiana vehicular flight statute, in which the Supreme Court held that because of the inherent risk in vehicular flight, the offense qualified as a “violent felony.” The Court noted that Sykes had “sharply curtailed” the reach of cases like Begay, by determining that the requirement of “purposeful, violent and aggressive” conduct “no longer applies to intentional crimes like vehicle flight.
The Court rejected the argument that Sykes could be distinguished because, unlike Florida, Indiana did not have a “gradient of penalties for different levels of vehicle flight.” Although Sykes left “for another day” the issue of how escalating tiers of punishment might affect the analysis, the Court found “little meaningful distinction” in the existence of a gradient of offenses. The Court found that any intentional flight “provokes a dangerous confrontational response” from police, which creates the “serious risk” of injury that qualifies an offense as a “violent felony” under ACCA.

Smith: No Abandonment by lawyers

In Smith v. Comm. Ala. Dep’t of Corrections, No. 11-13802 (Dec. 28, 2012) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder, finding his petition to be time-barred under AEDPA.



Smith filed for an application post-conviction relief in Alabama within the one-year period during which the filing for State post-conviction relief tolls the federal AEDPA statute of limitations. However, the lawyers who filed the application neglected to pay the filing fee, or to seek leave of court to proceed in forma pauperis. Consequently, the application was not “properly filed” under Alabama law – and, therefore, for purposes of tolling the AEDPA limitations period.



One of the lawyers had an ongoing history of substance abuse, and was charged with possessing a controlled substance – less than a month after Smith’s application was filed. The other lawyer was not admitted to the Alabama bar, and did not move for admission pro hac vice. The Court nonetheless found that Smith was not “abandoned” by his lawyers and therefore could not qualify for equitable tolling of the AEDPA limitations period. The mere fact of failing to pay a filing fee, or to move for pro hac vice status, does not constitute abandonment.

Pooler: No ineffectiveness of counsel

In Pooler v. Sec., Fla. Dep’t of Corrections, No. 12-12059 (Dec. 17, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1995 murder.




The Court rejected the argument that defense counsel was ineffective during the penalty phase of the case by failing to locate records that would show Pooler’s background. The Court noted the efforts counsel made, and the justifiable reliance on the information Pooler himself furnished.



The Court also found no ineffective assistance in counsel’s reliance on only two mental health experts, or the failure to highlight Pooler’s alcohol use on the day of the murder, which “may not have been mitigating in the jury’s eyes, and may well have opened the door not only to evidence of Pooler’s cavorting with a prostitute hours before he brutally killed his ex-girlfriend, but also to the abundant evidence of Pooler’s bad temper and propensity to violence when he was drunk.”



The Court also rejected Pooler’s attempt to rely on the Supreme Court’s decision in Porter v. McCollum, finding the ineffectiveness of counsel in that case distinguishable.

Thompson: Restoration of right to vote not sufficient for possession of firearm

In U.S. v. Thompson, No. 11-15122 (December 11, 2012), the Court held that although a defendant’s right to vote had been restored following an earlier Alabama assault conviction, this did not mean his civil rights had been restored for purposes of exempting him from being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).




The Court pointed out that the statute refers to the restoration of civil rights, in the plural. Only Thompson’s right to vote was restored. His right to serve on a jury, and to hold public office, were not restored.



The Court rejected the argument that “voting rights” encompasses several attendant rights, including the right to vote in federal elections, and state elections, and primaries. “[T]he fact remains that Thompson had only one of the three key civil rights restored: the right to vote.”

Laist: 25-day computer seizure not unreasonable

In U.S. v. Laist, No. 11-15531 (Dec. 11, 2012), the Court held that a government 25-day delay in submitting an application for a search warrant while holding a computer based on probable cause was not an unreasonable seizure under the Fourth Amendment.




The Court first rejected the argument that the six days during which the search warrant application was submitted to and under consideration by a federal magistrate judge should be counted, in addition the preceding 25 days, in determining the unreasonableness of the delay. The Court distinguished the deterrent effect of the exclusionary rule on law enforcement agents from its effect on magistrate judges.



Turning to the 25-day delay, the Court emphasized that the defendant had a “diminished” possessory interest his computer, because he had an opportunity, when the computers were seized, to copy or remove personal documents. Moreover, the defendant admitted to the presence of illicit child pornography images on his computer.



The Court also found that the FBI Agent promptly started preparing the search affidavit once it was needed, and included “very substantial amount information” as to the defendant’s conduct in pages 14-17 of the affidavit. The Court noted that the investigation of the case took roughly a year, and that the Agent worked in a two-person office that covered ten Georgia counties. “The government’s efforts here were sufficiently diligent to pass muster under the Fourth Amendment.” The Court distinguished U.S. v. Mitchell, in which the Court had found a 21-day delay to be unreasonable under the Fourth Amendment, finding the facts “readily distinguishable” – and pointing to Laist’s “diminished personal interest in his computer.”

Rozier: Johnson does not entitle 2255 movant to relief

In Rozier v. U.S., No. 11-13557 (Nov. 21, 2012) (2-1), the Court held that a movant pursuant to 28 U.S.C. § 2255 was not entitled to relief from his sentence based on the United States Supreme Court’s decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).




In 2001, Rozier was sentenced as a career offender. His career offender status was based in part on a prior conviction for battery on a police officer in violation of Fla. Stat. § 784.07(2)(b). Years after his sentence was affirmed on appeal, the Supreme Court decided Johnson, in which it held that, under the “elements clause” of the career offender guideline, a Florida felony battery did not qualify as a predicate offense. Johnson did not reach whether the offense qualified under the Guideline’s “residual clause.”



The Court recognized that Johnson is retroactively applicable. However, because Johnson did not reach whether a Florida battery qualified as a predicate offense under the “residual clause” of the Guideline, it was not a “change in controlling law” that would entitle Rozier to relief on a § 2255 claim. In its prior decision in Rozier’s appeal, the Eleventh Circuit had relied on the residual clause in affirming the sentence. Because there was no intervening decision contrary to its prior ruling, the Eleventh Circuit was bound by its earlier ruling.



[Dissenting, Judge Hill stated: “I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.”]

Berry: FSA does not apply to defendants sentenced pre-FSA

In U.S. v. Berry, No. 12-11150 (Nov. 14, 2012), the Court held that a defendant sentenced in 2002, prior to the effective date of the Fair Sentencing Act (FSA), was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).




Berry was subject to a statutory mandatory minimum life sentence. Consequently, the Court found, Amendment 750 had no effect on his Guideline range or sentence.



The Court recognized that the FSA, which became effective August 3, 2010, lowered the statutory minimum penalties for crack cocaine offenses. But noting that the FSA is not a Guidelines amendment but a statutory change by Congress, the Court held that the FSA cannot serve as a basis for a § 3582(c)(2) reduction.



The Court added that even assuming that an FSA claim could be brought in a § 3582(c)(2) motion, the claim still fails. The Court explained that the savings clause, 1 U.S.C. § 109, precludes extinguishment of the sentence Berry received in 2002. The Court distinguished the Supreme Court’s decision in Dorsey v. U.S., pointing out that it only held that defendants sentenced after the effective date of the FSA would be subject to the reduced mandatory minimums for crack cocaine offenders. Dorsey did not address defendants sentenced, like Berry, before the FSA took effect.

Burton: Client may have ultimate authority to call witnesses

In Burton v. Commissioner, Alabama Dep’t of Corrections, No. 10-12108 (Nov. 7, 2012), the Court denied habeas relief to an Alabama death row inmate.




At the penalty phase of Burton’s murder trial, contradicting the position of his defense counsel stated on the record, Burton asked the trial judge to have counsel call two of his accomplices. These two witnesses not only provided no mitigating evidence, but they opened the door for cross-examination that allowed the State to introduce aggravating evidence. The jury sentenced Burton to death, and the Alabama courts affirmed.



In federal habeas proceedings, Burton argued that the Alabama trial judge erred when he allowed Burton to override the decision of his own defense lawyer, and had the two witnesses testify in the penalty phase. The Court rejected this argument, noting that the United States Supreme Court has not yet decided whether the ultimate authority to call witnesses at trial belongs to counsel or the client. Consequently, the state trial judge’s ruling that the decision to call witnesses ultimately rests with the client did not contravene clearly established law as determined by the Supreme Court – the standard for habeas relief under AEDPA.

Bellaizac-Hurttado: Drug Trafficking Not a Violation of Customary International Law

In U.S. v. Bellaizac-Hurtado, No. 11-14049 (Nov. 6, 2012), the Court reversed convictions for cocaine trafficking offenses in violation of 46 U.S.C. §§ 70503(a), 70606; 21 U.S.C. § 960(b)(1)(B), that occurred in the territorial waters of Panama. The Court held that Congress cannot constitutionally proscribe such drug trafficking offenses under its Article I power to “define and punish . . . Offences against the Law of Nations.”




The Court explained that the power to “define” offenses does not give Congress the power to “create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.” The Court held that offenses against the law of nations means offenses under customary international law. The Court noted that it need not decide whether the power to “define” offenses changes with the evolution of customary international law, because drug trafficking was not a violation at the time of the Founding, and is not a violation today – noting that a number of countries’s economies are “dependent on the drug trade,”contrasting the international community’s treatment of genocide, and pointing out that the International Criminal Court does not have jurisdiction over drug trafficking.



[Judge Barkett, concurring, would have held that an offense is only “against the Law of Nations” if it is subject to “universal jurisdiction” – which, she found, drug trafficking is not].

Lawrence: Deference to Florida Competency determination

In Lawrence v. Sec. Dep’t of Corrections, No. 10-13862 (Oct. 30, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder. The Court held that, under AEDPA’s deferential standard of review, the Florida courts did not unreasonably determine that, despite suggestions that the defendant was experiencing "hallucinations" during the trial, he was competent to stand trial, pointing inter alia to evidence that the defendant was merely "having a bout with his conscience."

Evans: Florida death penalty procedure still constitutional

In Evans v. Sec., Fla. Dep’t of Corrections, No 11-14498 (Oct. 23, 2012), the Court, reversing the district court, held that Florida’s rules allowing the imposition of the death sentence by a judge, after giving “great weight” to a jury’s advisory sentence of death, did not violate the Sixth Amendment right to jury trial, and therefore was not a basis for a grant of habeas relief.




The Court noted that in Ring v. Arizona, the Supreme Court, though finding Arizona’s judge-only procedure of imposing the death penalty unconstitutional, described Florida’s system as a “hybrid,” because the jury renders an advisory verdict but the judge makes the ultimate sentencing determination. The Court interpreted the Supreme Court’s description of Florida’s procedure as a “hybrid” as having left open the issue of its constitutionality. The Court noted that the Supreme Court, in Hildwin v. Florida, a decision predating Ring, upheld the constitutionality of Florida’s procedure. Because only the Supreme Court can overrule one of its decisions, the Court found that Florida’s procedure was not unconstitutional.



The Court also rejected the argument that defense counsel was ineffective for failing to call seven potential witnesses at Evans’s trial, finding that the Florida Supreme Court did not unreasonably reject this claim.

Griffin: Questioning is not a Fourth Amendment event

In U.S. v. Griffin, No. 11-15558 (Oct. 2, 2012), the Court reversed the district court’s grant of a motion to suppress, finding that a constitutionally valid stop and frisk did not become unreasonable when the officer asked some brief questions unrelated to the reason for the stop and the purpose of the frisk.




Responding to a 911 call, a Jacksonville police officer arrived at a store. The security guard pointed to a man walking quickly away as a person who’d attempted to steal some clothing. The officer followed the person, Griffin, who continued to look over his shoulder and walk briskly away. The officer told him to stop. Griffin continued to walk away. The officer stopped Griffin, and frisked him to ensure his own safety.



During the frisk, the officer felt what he believed were C-cell batteries in Griffin’s back pocket. He did not reach into the pocket but asked “Hey, what’s in your pockets? Why do you have batteries.” Griffin responded that the items were shotgun shells and not batteries. The officer asked Griffin if he had ever been to prison. Griffin answered: “yes.” After the officer informed him that it was illegal for felons to possess weapons or ammunition, Griffin began to flee. The officer arrested him. Griffin was charged with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).



The Court noted that the initial stop of Griffin was permissible, because the officer reasonably suspected that Griffin had attempted to steal some clothing.



The Court rejected the argument that the frisk was unjustified. The Court noted that the officer was alone, in a high crime area, had not been told anything about Griffin other than he tried to steal some item of clothing. Griffin acted evasively and refused to obey the command that he stop. The officer had not finished investigating the alleged attempted theft. For these reasons, the frisk was consistent with Terry v. Ohio and its progeny. The frisk did not violate Minnesota v. Dickerson, because the officer did not continue an exploration of the pocket after feeling the items in the pocket. The officer did not reach into the pocket, but instead asked Griffin why he was carrying batteries.



The Court rejected the district court’s conclusion that the questioning of Griffin about the items in his back pocket violated the Fourth Amendment because it was not reasonably related to the circumstances that justified the stop. The Court stated that “unrelated questions posed during a valid Terry s top do not create a Fourth Amendment problem unless they measurably extend the duration of the stop. This is because such questions, absent a prolonged detention, do not constitute a discrete Fourth Amendment event.”



The Court found that the exchange between the officer and Griffin did not last more than 30 seconds. This “brief” questioning did not transform the stop into an unconstitutionally prolonged seizure.

Holsey: Affirming denial of habeas relief where postconviction evidence was largely cumulative

In Holsey v. Warden, No. 09-14257 (Sept. 13, 2012), the Court (2-1) (Barkett, J., dissenting) denied habeas relief to a Georgia death row inmate convicted of a 1995 murder.




The Court rejected the argument that the Georgia Supreme Court unreasonably determined that the additional mitigating circumstances presented at post-conviction proceedings were “largely cumulative” of the evidence presented at trial. The Court found that at his initial trial, Holsey put mitigating evidence of his own “limited intelligence.” Although in collateral proceedings he later put on evidence of “borderline mental retardation,” most of the evidence in the proceedings was cumulative of earlier-presented evidence. Similarly, while Holsey presented more details of his abusive childhood at his collateral proceedings, the jury at the original sentencing “had heard about his troubled, abusive upbringing too.”

Duboc: Treaty does not create rights for private persons

In U.S. v. Duboc, No. 11-15133 (Sept. 11, 2012), the Court affirmed the amendment of an existing criminal forfeiture order that ordered the forfeiture of two condos in Thailand in 2011, 12 years after the initial order of forfeiture.
The Court rejected Duboc’s argument that the government failed to prove that he used the proceeds of illegal activity to purchase the Thailand condos. Duboc argued that only 2.4% of the proceeds of his drug trafficking involved importation into the United States. The Court stated that even assuming this was accurate, it does not show that the Thailand condos were not purchased with the proceeds of the crimes of conviction.
The Court also rejected Duboc’s statute of limitations argument, ruling that because the properties were outside the United States, the limitations period had not begin to run. The Court also rejected Duboc’s laches argument, pointing out that the forfeiture statute allows amendment "at any time."
The Court also rejected the argument that the delay in the government’s enforcement of its rights against the Thai condos violated Due Process, noting that Duboc made no showing of prejudice. The Court also rejected Duboc’s attempt to rely on the Mutual Legal Assistance Treaty between Thailand and the United States, holding that this treaty, which involved mutual assistance in law enforcement, did not create rights for private persons.

Dortch: No plain error in constructive amendment

In U.S. v. Dortch, No. 10-14772 (Sept. 11, 2012), the Court affirmed convictions for unlawful possession of firearms by a convicted felon, possession of marijuana with intent to distribute, and use of a firearm during a drug-trafficking offense.
During the trial, the district court did not allow the government to introduce evidence of some of Dortch’s prior convictions, because they were too old or too prejudicial. However, for deliberations, the jury was given an unredacted copy of the indictment, which listed the prior offenses. The Court held that the error was harmless, because Dortch stipulated that he was a convicted felon, and the evidence supporting the convictions was "overwhelming." In addition, the district court instructed the jury that the indictment was not evidence.
On plain error review, the Court rejected the argument that the district court committed reversible error because it constructively amended the indictment when it instructed the jury that it could convict Dortch of firearm possession without specifying that it must find that he possessed the specific firearms identified in the indictment. The Court noted that there was no Supreme Court or Eleventh Circuit precedent holding that a constructive amendment occurs when a district court instructs the jury that it may convict for possession of any firearm. The Court therefore found that it "need not address whether a constructive amendment amounts to per se reversible error when the defendant fails to object at trial, because even if we assume the district court erred, the error was not plain."

Finally, the Court rejected the argument that the district court abused its discretion when it excluded evidence that Dortch was acquitted of state charges relating to the same drug transactions at issue. "Judgments of acquittal are hearsay."

Johnson: Passenger must direct risk to be enhanced for driver's recklessness

In U.S. v. Johnson, No. 11-13621 (Sept. 10, 2012), the Court reversed and remanded for resentencing a sentence enhancement under U.S.S.G. 3C1.2, which provides for a two-level enhancement if the defendant "recklessly created a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer."
The defendants participated in the armed robbery of a CVS pharmacy in Atlanta. Police arrived during the robbery. Two defendants hopped into a stolen 1995 Honda, one the driver, the other the passenger. They fled police, ignoring traffic signals, and causing other cars to make evasive maneuvers to avoid being hit. Police backed off pursuit because of safety concerns. Both defendants were ultimately apprehended and convicted.
The Court held that the district court erred in imposing the § 3C1.2 enhancement on the passenger of Honda based on a mere finding that the risk created by the driver was "reasonably foreseeable" to the passenger. The Court noted that a district court must find that a defendant "actively caused or procured the reckless behavior at issue."
The Court rejected the government’s argument that one could infer a plan of escape from the premeditation of the robbery. "It is likely that [the two defendants] did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way."
The Court noted the government’s argument that the passenger must have been aware of the need to "ram a police car to escape" from the fact that police were on the scene when he got in the getaway car. But the district court did not rely on this fact in its § 3C1.2 determination.
The Court rejected the government’s argument that the fact that Johnson fled on foot once the car crashed into a pole shows that he sought to escape during the high-speed chase. The Court noted that the flight on foot did not indicate whether the passenger played any active supporting role in the reckless car-flight.
The Court remanded and instructed for the district to "reopen the record" and "turn its eye to the robbery scene" when the defendants exited the CVS store, considering where the police and their cars were situated.

Franklin: Exigent circumstances justifies search

In U.S. v. Franklin, No. 11-10555 (Sept. 7, 2012), the Court held that because of exigent circumstances, law enforcement did not violate a person’s Fourth Amendment rights when they entered his home without a warrant and seized rifles and sawed off shotguns.
After responding to a request from a Florida Probation Officer to assist him at Franklin’s home, a deputy sheriff went to the back of the house and saw several firearms in plain view through a rear window. There was another person in the house. Franklin ultimately emerged from the house to surrender. The police entered the house where they seized the rifles and shotguns.
The Court held that the law enforcement agents could reasonably have believed that the person inside the home could remove the rifles and shotguns before a search warrant could be obtained. Therefore, there was no Fourth Amendment violation.