In U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States.
The sentencing judge described the conduct as "horrific." The Guideline sentence was 360 months. The statutory maximum was also 360 months; the minimum was 180 months. The district court correctly computed the guideline sentence, and directly discussed the § 3553(a) factors on the record.
Affirming the sentence, the court noted that a 17-1/2 year sentence was not "a trifle." Further, the defendant was 50; thus the consequences of the sentence were "severe." A life term of "rigorous" supervised release was imposed. The sentence was "years beyond" the statutory minimum. The Court stated: "If we were responsible for sentencing Defendant in the first instance, we might have imposed a different sentence: we clearly believe that sentences other than the one actually imposed might also be appropriate. But we must respect the district court as the sentencer, and we accept that the sentence imposed by the district court is within the outside borders of reasonable sentences for this case. . . . The sentence must be affirmed."
Thursday, April 09, 2009
Monday, April 06, 2009
Seher: Money Laundering mens rea implicit in indictment
In U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.
The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses. The Court noted that the indictment cited specific subsections of the money laundering statutes. These subsections, in turn, contained mens rea elements. Thus, it was reasonable to infer that the grand jury found that the defendants had the intents to violate the laws.
The Court also rejected a duplicitous indictment challenge. The defendants argued that 18 U.S.C. § 1956(a)(3) contains three different offenses. Consequently, when certain counts of the indictment referenced different subsections of the same statute, they charged two different offenses in the same count. Although the defendants waived this challenge by failing to raise it pre-trial, the government itself waived the waiver on appeal, and the Court therefore considered the argument. The Court concluded that § 1956(a)(3) did not create separate offenses, but listed alternative mental states for a single offense.
Turning to the forfeiture order, the Court rejected the argument that the assets of the jewelry stores, and their bank accounts, should not have been forfeited, because they were not "involved" in the money laundering offenses. The Court found that one of the businesses was a "facade of legitimacy" for the money laundering enterprise. The other jewelry business, however, was unconnected to the unlawful laundering.
Finally, the Court that the record below was insufficient to determine whether the forfeiture of the jewelry business was an excessive fine in violation of the Eighth Amendment. The Court therefore remanded the entire forfeiture order for reconsideration of this issue.
The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses. The Court noted that the indictment cited specific subsections of the money laundering statutes. These subsections, in turn, contained mens rea elements. Thus, it was reasonable to infer that the grand jury found that the defendants had the intents to violate the laws.
The Court also rejected a duplicitous indictment challenge. The defendants argued that 18 U.S.C. § 1956(a)(3) contains three different offenses. Consequently, when certain counts of the indictment referenced different subsections of the same statute, they charged two different offenses in the same count. Although the defendants waived this challenge by failing to raise it pre-trial, the government itself waived the waiver on appeal, and the Court therefore considered the argument. The Court concluded that § 1956(a)(3) did not create separate offenses, but listed alternative mental states for a single offense.
Turning to the forfeiture order, the Court rejected the argument that the assets of the jewelry stores, and their bank accounts, should not have been forfeited, because they were not "involved" in the money laundering offenses. The Court found that one of the businesses was a "facade of legitimacy" for the money laundering enterprise. The other jewelry business, however, was unconnected to the unlawful laundering.
Finally, the Court that the record below was insufficient to determine whether the forfeiture of the jewelry business was an excessive fine in violation of the Eighth Amendment. The Court therefore remanded the entire forfeiture order for reconsideration of this issue.
Williams: Life Sentence Affirmed
In U.S. v. Williams, No. 08-10185 (March 31, 2009), the Court affirmed the district court’s re-imposition of a life sentence.
In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence. Upon remand, the district court provided reasons.
The Court noted that its limited mandate precluded the district court from re-examining the life sentence based on new considerations. The Court recognized that one exception to the mandate rule involved intervening changes in the law. Here, one prior conviction that qualified Williams as a "career offender" was a Florida state conviction for battery of a law enforcement. The Florida Supreme Court recently held that this offense was not a "forcible felony." Further, the Court’s precedent which held that federal, not state, law governs for career offender purposes is now up for review in the United States Supreme Court. Yet neither of these recent developments constituted an intervening change in law.
In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence. Upon remand, the district court provided reasons.
The Court noted that its limited mandate precluded the district court from re-examining the life sentence based on new considerations. The Court recognized that one exception to the mandate rule involved intervening changes in the law. Here, one prior conviction that qualified Williams as a "career offender" was a Florida state conviction for battery of a law enforcement. The Florida Supreme Court recently held that this offense was not a "forcible felony." Further, the Court’s precedent which held that federal, not state, law governs for career offender purposes is now up for review in the United States Supreme Court. Yet neither of these recent developments constituted an intervening change in law.
Bornscheuer: Extortion includes fear of economic loss
In U.S. v. Bornscheuer, No. 06-14607 (March 31, 2009), the Court affirmed Hobbs Act convictions arising out of extortion.
The Court rejected the argument that the "fear" that underlies an extortion conviction must relate only to fear of physical violence, not, as the jury was instructed to fear "of economic loss as well as fear of physical violence." The Court said both types of fears were contemplated by its precedent in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986).
The Court also rejected Confrontation Clause challenge to the admission of out-of-court statements, pointing out that the statement in question fell within the hearsay exception for a statement of a co-conspirator made in furtherance of a conspiracy.
The Court rejected the argument that the "fear" that underlies an extortion conviction must relate only to fear of physical violence, not, as the jury was instructed to fear "of economic loss as well as fear of physical violence." The Court said both types of fears were contemplated by its precedent in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986).
The Court also rejected Confrontation Clause challenge to the admission of out-of-court statements, pointing out that the statement in question fell within the hearsay exception for a statement of a co-conspirator made in furtherance of a conspiracy.
Wednesday, March 11, 2009
McGahee: Batson violation warrants habeas relief
In McGahee v. Alabama Dep’t of Corrections, No. 07-15602 (March 4, 2009), the Court granted a writ of habeas corpus to an Alabama death row inmate, finding that Alabama violated Batson v. Kentucky by using its peremptory strikes in a discriminatory manner at his trial for 1986 murders.
The Court found that the Alabama trial court, and the Alabama Court of Criminal Appeals, failed to properly apply Batson. The record indicated that one black juror had been struck because the State "did not want to leave him individually," a remark the Court interpreted as being because of the juror’s race. In addition, all black members of the venire were struck by the State, either for cause, or by the use of peremptory challenges. "There can be no clearer ‘pattern’ than the total removal of all African-American jurors from the venire by the State." Further, the State attempted to justify striking multiple African-American jurors because of their "low intelligence." There was no support for this finding in the record. "Furthermore, the State’s claim that several African-Americans were of ‘low intelligence’ is a particularly suspicious explanation given the role that the claim of ‘low intelligence’ has played in the history of racial discrimination from juries."
The Court called the removal of all African-American jurors from the venire "astounding." The Court found that race was a basis for striking specific black members of the venire, and a Batson violation therefore occurred.
The Court found that the Alabama trial court, and the Alabama Court of Criminal Appeals, failed to properly apply Batson. The record indicated that one black juror had been struck because the State "did not want to leave him individually," a remark the Court interpreted as being because of the juror’s race. In addition, all black members of the venire were struck by the State, either for cause, or by the use of peremptory challenges. "There can be no clearer ‘pattern’ than the total removal of all African-American jurors from the venire by the State." Further, the State attempted to justify striking multiple African-American jurors because of their "low intelligence." There was no support for this finding in the record. "Furthermore, the State’s claim that several African-Americans were of ‘low intelligence’ is a particularly suspicious explanation given the role that the claim of ‘low intelligence’ has played in the history of racial discrimination from juries."
The Court called the removal of all African-American jurors from the venire "astounding." The Court found that race was a basis for striking specific black members of the venire, and a Batson violation therefore occurred.
Willis: FEMA fraud sentenced up to maximum disbursement
In U.S. v. Willis, No. 08-10305 (March 3, 2009), the Court affirmed the Guideline loss amount imputed to a defendant convicted of defrauding FEMA by seeking fraudulent post-Hurricane Katrina aid.
Under the FEMA program, an applicant Hurricane victim was entitled to $4,358 automatically. The applicant could exceed this amount by making specific application therefor. The maximum aid amount was $26,200 per application.
Willis submitted numerous fraudulent applications, some in excess of the $4,358 automatic payment. Remarkably, she submitted one application after being indicted on for the fraud. The sentencing court held Willis accountable for $26,200, the maximum possible harm, for each FEMA application she submitted.
Rejecting Willis’ challenge to this determination, the Court held that Willis’ pattern of applying for funds beyond the $4,358 automatic disbursement supported an inference that she intended to pursue additional money from her other applications, and eventually intended to pursue the maximum disbursement for each application.
Under the FEMA program, an applicant Hurricane victim was entitled to $4,358 automatically. The applicant could exceed this amount by making specific application therefor. The maximum aid amount was $26,200 per application.
Willis submitted numerous fraudulent applications, some in excess of the $4,358 automatic payment. Remarkably, she submitted one application after being indicted on for the fraud. The sentencing court held Willis accountable for $26,200, the maximum possible harm, for each FEMA application she submitted.
Rejecting Willis’ challenge to this determination, the Court held that Willis’ pattern of applying for funds beyond the $4,358 automatic disbursement supported an inference that she intended to pursue additional money from her other applications, and eventually intended to pursue the maximum disbursement for each application.
Tuesday, March 10, 2009
Carmichael: Jury Pool Ok in Middle District of Alabama
In U.S. v. Carmichael, No. 07-11400 (March 5, 2009), the Court rejected the defendant’s challenge to the validity of his Alabama jury venire.
The Court recognized that as a result of errors and technical glitches, the Jury Administrator re-summoned more than 15% of previously deferred jurors, a court-imposed limit that was designed to prevent jury venires from being disproportionately white. However, these deferred jurors were not given a preferential position but were selected at random for venires. Thus, the violation was not substantial.
The Court also rejected a challenge to the voter list-based jury pool under the Jury Selection and Service Act, finding no requirement in this Act for voter list supplementation when they result in over- or under-representation of certain groups.
Finally, the Court rejected Carmichael’s Sixth Amendment "fair cross-section" challenge to the jury pool, finding that he had failed to establish a disparity of 10% or more between eligible and actual African American jurors in the local population.
The Court recognized that as a result of errors and technical glitches, the Jury Administrator re-summoned more than 15% of previously deferred jurors, a court-imposed limit that was designed to prevent jury venires from being disproportionately white. However, these deferred jurors were not given a preferential position but were selected at random for venires. Thus, the violation was not substantial.
The Court also rejected a challenge to the voter list-based jury pool under the Jury Selection and Service Act, finding no requirement in this Act for voter list supplementation when they result in over- or under-representation of certain groups.
Finally, the Court rejected Carmichael’s Sixth Amendment "fair cross-section" challenge to the jury pool, finding that he had failed to establish a disparity of 10% or more between eligible and actual African American jurors in the local population.
Ambert: SORNA is constitutional
In U.S. v. Ambert, No. 08-13139 (March 6, 2009), the Court rejected a defendant’s challenge to his conviction for failing to register under the Sex Offender Registration and Notification Act ("SORNA").
The Court rejected Ambert’s argument that his travel in interstate commerce occurred before the Attorney General determined that SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders, and therefore did not subject him to criminal liability for failing to register. First, he also traveled after February 28. Second, the violation consists of a failure to register, which accrued after February 28.
The Court rejected an ex post facto challenge to the SORNA statute, noting that the registration violation occurs after the effective date of the Attorney General’s retroactivity determination.
The Court also rejected a substantive due process to the SORNA statute, finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the Nation’s history, and, applying rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.
Overruling the district court decision in U.S. v. Myers, the Court rejected a Commerce Clause challenge. The Court found that "when a sex offender travels from one state to another, he is an instrumentality of interstate commerce, and by regulating these persons in SORNA, Congress has acted under its commerce clause power to regulate an instrumentality."
Finally, the Court rejected a non-delegation challenge, finding that Congress laid down an adequate "intelligible principle" to guide the Attorney General’s retroactivity determination for SORNA violators.
The Court rejected Ambert’s argument that his travel in interstate commerce occurred before the Attorney General determined that SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders, and therefore did not subject him to criminal liability for failing to register. First, he also traveled after February 28. Second, the violation consists of a failure to register, which accrued after February 28.
The Court rejected an ex post facto challenge to the SORNA statute, noting that the registration violation occurs after the effective date of the Attorney General’s retroactivity determination.
The Court also rejected a substantive due process to the SORNA statute, finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the Nation’s history, and, applying rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.
Overruling the district court decision in U.S. v. Myers, the Court rejected a Commerce Clause challenge. The Court found that "when a sex offender travels from one state to another, he is an instrumentality of interstate commerce, and by regulating these persons in SORNA, Congress has acted under its commerce clause power to regulate an instrumentality."
Finally, the Court rejected a non-delegation challenge, finding that Congress laid down an adequate "intelligible principle" to guide the Attorney General’s retroactivity determination for SORNA violators.
Monday, March 09, 2009
Siegelman: Governor's Bribery Convictions Affirmed
In U.S. v. Siegelman, No. 07-13163 (March 6, 2009), in a lengthy opinion, the Court reversed two bribery-related convictions of the former Governor of Alabama, but otherwise affirmed other convictions.
The Court rejected Siegelman’s argument that a jury instruction on bribery, in violation of 18 U.S.C. § 666(a)(1)(B), should instruct that the quid pro quo agreement must be express. The Court noted that the caselaw merely requires an "explicit" agreement, which can be achieved through winks and nods, if not through express words. Furthermore, an agreement can be implied from words and actions.
The Court also rejected Siegelman’s argument that there was insufficient evidence to support the bribery convictions, finding that the jury could have concluded that a quid pro quo existed to put Richard Scrushy on the Board of a Health Review Board in exchange for his money contribution to one of the Governor’s foundations.
The Court agreed with Siegelman’s argument that he should not have been convicted of honest services mail fraud based on Scrushy’s self-dealing once Scrushy became a Board member. The Court noted Siegelman’s lack of involvement in Scrushy’s self-dealing, or any agreement between the two on this point.
Citing U.S. v. Ramirez, 324 F.3d 1225 (11th Cir. 2003), the Court rejected Siegelman’s statute of limitations challenge, noting that he failed to raise until a motion for judgment of acquittal under Fed. R. Crim. P. 29(c), post-verdict. If a defendant fails to raise the statute of limitations defense at trial, the defense is waived.
The Court rejected the argument that a statement of a co-conspirator bragging about the successful result of the bribery could be admitted under Fed. R. Evid. 801(d)(2)(E). Bragging informs co-conspirators that "their plan had worked."
The Court rejected new trial arguments based on juror misconduct in having looked at news articles and materials on the internet. The trial court conducted a hearing on this matter and determined that the extrinsic materials related only to the process of deliberation, not the substantive issues in the trial. There was no reasonable possibility of prejudice. The Court reached a similar conclusion regarding jury exposure to an unredacted second superseding indictment. The Court rejected other challenges to improper premature communications among the jury during deliberations, noting that Fed. R. Evid. 606(b) shields jurors from such post-trial inquiries.
Finally, the court; affirmed an upward sentencing departure based on the fact that the Governor's conduct had seriously undermined public confidence in the executive Branch of Alabama government.
The Court rejected Siegelman’s argument that a jury instruction on bribery, in violation of 18 U.S.C. § 666(a)(1)(B), should instruct that the quid pro quo agreement must be express. The Court noted that the caselaw merely requires an "explicit" agreement, which can be achieved through winks and nods, if not through express words. Furthermore, an agreement can be implied from words and actions.
The Court also rejected Siegelman’s argument that there was insufficient evidence to support the bribery convictions, finding that the jury could have concluded that a quid pro quo existed to put Richard Scrushy on the Board of a Health Review Board in exchange for his money contribution to one of the Governor’s foundations.
The Court agreed with Siegelman’s argument that he should not have been convicted of honest services mail fraud based on Scrushy’s self-dealing once Scrushy became a Board member. The Court noted Siegelman’s lack of involvement in Scrushy’s self-dealing, or any agreement between the two on this point.
Citing U.S. v. Ramirez, 324 F.3d 1225 (11th Cir. 2003), the Court rejected Siegelman’s statute of limitations challenge, noting that he failed to raise until a motion for judgment of acquittal under Fed. R. Crim. P. 29(c), post-verdict. If a defendant fails to raise the statute of limitations defense at trial, the defense is waived.
The Court rejected the argument that a statement of a co-conspirator bragging about the successful result of the bribery could be admitted under Fed. R. Evid. 801(d)(2)(E). Bragging informs co-conspirators that "their plan had worked."
The Court rejected new trial arguments based on juror misconduct in having looked at news articles and materials on the internet. The trial court conducted a hearing on this matter and determined that the extrinsic materials related only to the process of deliberation, not the substantive issues in the trial. There was no reasonable possibility of prejudice. The Court reached a similar conclusion regarding jury exposure to an unredacted second superseding indictment. The Court rejected other challenges to improper premature communications among the jury during deliberations, noting that Fed. R. Evid. 606(b) shields jurors from such post-trial inquiries.
Finally, the court; affirmed an upward sentencing departure based on the fact that the Governor's conduct had seriously undermined public confidence in the executive Branch of Alabama government.
Friday, March 06, 2009
Shaw: Variance to Statutory Maximum Not Unreasonable
In U.S. v. Shaw, No. 07-14693 (Mar. 3, 2009), the Court affirmed an upward variance from a guideline range of 30-37 months to the statutory maximum of 120 months, for an offender convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Court agreed with the district court’s assessment that, in light of Shaw’s past criminal history, he was "just a step or two away from violent crime." "The public should not wait until he takes those last steps before the district court can provide it with the maximum protection the law allows."
The Court rejected the argument that the district court failed to support its prediction of Shaw’ future violence with any "empirical" study. The Court noted that district courts have "wide latitude" in applying what they have learned from other cases. Here, moreover, Shaw was arrested with ski masks in his possession, headed toward a drug hole to rob it, vindicating the district court’s assessment. The Court also rejected Shaw’s reliance on lesser punishments imposed in like cases.
The Court rejected the argument that the district court failed to support its prediction of Shaw’ future violence with any "empirical" study. The Court noted that district courts have "wide latitude" in applying what they have learned from other cases. Here, moreover, Shaw was arrested with ski masks in his possession, headed toward a drug hole to rob it, vindicating the district court’s assessment. The Court also rejected Shaw’s reliance on lesser punishments imposed in like cases.
Friday, February 20, 2009
Guzman: ok to require address in Mexico on supervised release
In U.S. v. Guzman, No. 08-14077 (Feb. 18, 2009), the Court held that the district court did not exceed its authority when it imposed a special condition of supervised release, requiring Guzman to inform the probation officer in writing of his address in Mexico within 72 hours of his deportation from the United States. The Court found that the purpose of such a condition fell within the purposes of 18 U.S.C. § 3553(a). "Ensuring that Guzman remained in Mexico was strongly related to his unlawful re-entry offense, was specifically designed to deter him from unlawfully re-entering again, and, in this respect, would help protect the public from any future attempt by Guzman to unlawfully re-enter the country."
Harrision: Fleeing Police Lights & Siren not "Violent Felony"
In U.S. v. Harrison, No. 08-12636 (Feb. 19, 2009), the Court (Hull, Wilson, Hill, JJ.) held that a violation of subsection 2 of Florida’s willful fleeing statute, Fla. Stat. § 316.1935(2) is not a "violent felony" for purposes of the 15-year mandatory minimum of 18 U.S.C. § 924(e), applicable to offenders who are convicted under 18 U.S.C. § 922(g) of being felons in unlawful possession of a firearm and who have three prior convictions for violent felonies.
The Court discussed at length how the Supreme Court’s decisions in Begay, James and Chambers had changed the legal landscape. The Court noted that Chambers has already spawned a reconsideration of circuit precedent involving escape crimes.
The Court emphasized that subsection 2 of the Florida statute – unlike subsection 3 – did not contemplate that the offender had any wanton disregard for the safety of persons. Rather, it only involved fleeing after a police vehicle had activated its lights and sirens. This kind of offender did not have the propensity for future violent conduct that the statute contemplated when it triggered a 15-year minimum for those who have three prior "violent felonies."
The Court discussed at length how the Supreme Court’s decisions in Begay, James and Chambers had changed the legal landscape. The Court noted that Chambers has already spawned a reconsideration of circuit precedent involving escape crimes.
The Court emphasized that subsection 2 of the Florida statute – unlike subsection 3 – did not contemplate that the offender had any wanton disregard for the safety of persons. Rather, it only involved fleeing after a police vehicle had activated its lights and sirens. This kind of offender did not have the propensity for future violent conduct that the statute contemplated when it triggered a 15-year minimum for those who have three prior "violent felonies."
Friday, February 13, 2009
Vasquez: No Authority to Vary from Career Offender Guidelines
In U.S. v. Vasquez, No. 08-10671 (Feb. 12, 2009), the Court held that a sentencing court lacks the authority to vary from the Guidelines’ career offender provision on the ground of a "disagreement" with this Guideline.
The Court first held that the appeal waiver provision of Vasquez’ plea agreement did not waive his appeal of his sentence. The provision provided that there was no waiver if the government appealed the sentence. The government did appeal Vasquez’ original sentence, but not the second sentence imposed on resentencing. Viewing the appeal waiver provision as ambiguous in this situation, the Court decided it did not operate to waive Vasquez’ appeal.
The Court noted that its prior decision in U.S. v. Williams, 456 F.3d 1353 (11th Cir. 2006) held that the career offender Guidelines "encapsulate" the congressional policy articulated in 28 U.S.C. § 994(h). Thus, it was impermissible for a sentencing court to vary from the career offender guidelines. Williams also held that it was impermissible to depart from the crack offender guidelines, and this portion of Williams was overruled by Kimbrough. But Kimbrough, stated that crack guidelines were different from career offender guidelines, because the career offender guidelines arose out of a separate statute. Therefore, the career offender portion of Williams remained binding law in the Eleventh Circuit. The Court relied on U.S. v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008) (2-1, Barkett, J., dissenting), which had held that the fast-track program disparity issue was unaffected by Kimbrough.
[Vasquez appears to conflict with U.S. v. Sanchez, 517 F.3d 651 (2d Cir. 2008), which held that a district court has authority to vary from the career offender guidelines].
The Court first held that the appeal waiver provision of Vasquez’ plea agreement did not waive his appeal of his sentence. The provision provided that there was no waiver if the government appealed the sentence. The government did appeal Vasquez’ original sentence, but not the second sentence imposed on resentencing. Viewing the appeal waiver provision as ambiguous in this situation, the Court decided it did not operate to waive Vasquez’ appeal.
The Court noted that its prior decision in U.S. v. Williams, 456 F.3d 1353 (11th Cir. 2006) held that the career offender Guidelines "encapsulate" the congressional policy articulated in 28 U.S.C. § 994(h). Thus, it was impermissible for a sentencing court to vary from the career offender guidelines. Williams also held that it was impermissible to depart from the crack offender guidelines, and this portion of Williams was overruled by Kimbrough. But Kimbrough, stated that crack guidelines were different from career offender guidelines, because the career offender guidelines arose out of a separate statute. Therefore, the career offender portion of Williams remained binding law in the Eleventh Circuit. The Court relied on U.S. v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008) (2-1, Barkett, J., dissenting), which had held that the fast-track program disparity issue was unaffected by Kimbrough.
[Vasquez appears to conflict with U.S. v. Sanchez, 517 F.3d 651 (2d Cir. 2008), which held that a district court has authority to vary from the career offender guidelines].
Williams: Failure to file anything with Magistrate Judge can be fatal
In Williams v. McNeil, No. 08-11259 (Feb. 10, 2009), the Court affirmed the denial of habeas relief. After the issue of the timeliness of his habeas petition was assigned to a Magistrate Judge, Williams neglected to file any memorandum on this issue with the Magistrate Judge. The Magistrate Issue ruled that McNeil’s petition was untimely. Williams then sought to challenge this ruling in the district court. The district court declined to reach Williams’ arguments, because he had failed to brief the issue before the Magistrate Judge. The district court denied habeas relief.
Affirming, the Court of Appeals joined the majority of circuits to have considered the issue, and ruled that when a party fails to brief an issue before a Magistrate Judge, the district court has the discretion to simply adopt the Magistrate Judge’s report and recommendation on the basis of this waiver.
Affirming, the Court of Appeals joined the majority of circuits to have considered the issue, and ruled that when a party fails to brief an issue before a Magistrate Judge, the district court has the discretion to simply adopt the Magistrate Judge’s report and recommendation on the basis of this waiver.
Williams: 3582(c)(2) judgment reversed for failure to consider 3553(a) factors
In U.S. v. Williams, No. 08-11361 (Feb. 9, 2009), the Court reversed the denial of an 18 U.S.C. § 3582(c)(2) sentence reduction to a Georgia crack cocaine offender, because the district court at resentencing, in reducing sentence by less than the two-level offense level reduction authorized by the crack cocaine sentence reduction Amendment, failed to address the 18 U.S.C. § 3553(a) factors. The Court noted that the Guideline commentary required the Court to consider the factors in § 3553(a). So did Eleventh Circuit precedent. Accordingly, the Court vacated the judgment and remanded for resentencing.
Tompkins: No Certificate of Appealability for Death-Row Inmate
In Tompkins v. Sec., Dep’t of Corrections, No. 09-10022 (Feb. 9, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for a 25-year old murder.
Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v. Quaterman’s 2007 holding that a death-row inmate’s claim that he was incompetent for execution did not trigger the "second or successive" bar, because this claim was not ripe until the inmate was subject to execution. Tompkins sought to extent Panetti to situations, like his, where a habeas claim rested on evidence that was newly discovered after trial but before execution. The Court rejected this argument. The Court noted that the statute expressly provides for "newly discovered" evidence claims. Consequently, Tompkins did not qualify for a certificate of appealability
The Court also rejected the argument that Tompkins’ claim that his execution was cruel and unusual because the length of his stay on death row. The Court noted that Circuit precedent squarely foreclosed such an Eight Amendment claim. Therefore no certificate of appealability could issue on this claim too.
Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v. Quaterman’s 2007 holding that a death-row inmate’s claim that he was incompetent for execution did not trigger the "second or successive" bar, because this claim was not ripe until the inmate was subject to execution. Tompkins sought to extent Panetti to situations, like his, where a habeas claim rested on evidence that was newly discovered after trial but before execution. The Court rejected this argument. The Court noted that the statute expressly provides for "newly discovered" evidence claims. Consequently, Tompkins did not qualify for a certificate of appealability
The Court also rejected the argument that Tompkins’ claim that his execution was cruel and unusual because the length of his stay on death row. The Court noted that Circuit precedent squarely foreclosed such an Eight Amendment claim. Therefore no certificate of appealability could issue on this claim too.
Tuesday, February 10, 2009
Whisenant: No Actual Bias of Judge
In Whisenhant v. Allen, No. 04-15810 (Feb. 3, 2009), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of a 1976 murder.
The Court rejected the argument that counsel was ineffective for failing to present an insanity defense. In the circumstances, counsel made a "strategic" choice.
The Court also rejected the argument that a Brady violation occurred, concluding that the suppressed documents were not material. The Court noted that the marginal value added of the reports at issue was insufficient.
The Court further rejected a claim of prosecutorial misconduct, finding that the closing argument did not misrepresent the testimony.
The Court also rejected claims of actual bias on the part of the state judge who presided over the trial.
The Court rejected the argument that counsel was ineffective for failing to present an insanity defense. In the circumstances, counsel made a "strategic" choice.
The Court also rejected the argument that a Brady violation occurred, concluding that the suppressed documents were not material. The Court noted that the marginal value added of the reports at issue was insufficient.
The Court further rejected a claim of prosecutorial misconduct, finding that the closing argument did not misrepresent the testimony.
The Court also rejected claims of actual bias on the part of the state judge who presided over the trial.
Farias-Gonzalez: Identity Not Suppressible
In U.S. v. Farias-Gonzalez, No. 08-10508 (Feb. 3, 2009), the Court held that "identity-related evidence," i.e., evidence of who the defendant is, obtained after an unconstitutional search and seizure, is not suppressible in a criminal prosecution.
The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks. The Court noted, however, that applying the cost-benefit analysis of the exclusionary rule, the exclusion of identity-related evidence is not justified, because the deterrence benefits do not outweigh the social costs.
Permitting a defendant to hide who he is would undermine the administration of the criminal justice system, and preclude sentence enhancements based on prior criminal history. Moreover, the deterrent effect of preclusion is minimal, because there is little point in deterring the police from asking a suspect to identify himself, and the identity evidence can be obtained by other means, that is, without implicating the Fourth Amendment. For the same reason, the Court denied the defendant’s motion to suppress his alien file.
The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks. The Court noted, however, that applying the cost-benefit analysis of the exclusionary rule, the exclusion of identity-related evidence is not justified, because the deterrence benefits do not outweigh the social costs.
Permitting a defendant to hide who he is would undermine the administration of the criminal justice system, and preclude sentence enhancements based on prior criminal history. Moreover, the deterrent effect of preclusion is minimal, because there is little point in deterring the police from asking a suspect to identify himself, and the identity evidence can be obtained by other means, that is, without implicating the Fourth Amendment. For the same reason, the Court denied the defendant’s motion to suppress his alien file.
Pace: Failure to Investigate Crack Addiction Not Ineffective
In Pace v. McNeil, No. 07-15528 (Feb. 3, 2008), the Court affirmed the denial of habeas relief to a Florida death-row inmate convicted of a 1988 murder.
The Court rejected Pace’s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace’s addiction to crack cocaine. The Court noted that Pace told defense counsel that he was not under the influence of crack cocaine at the time he committed the murder. Further, a "crack cocaine" defense was a double-edged sword.
The Court rejected Pace’s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace’s addiction to crack cocaine. The Court noted that Pace told defense counsel that he was not under the influence of crack cocaine at the time he committed the murder. Further, a "crack cocaine" defense was a double-edged sword.
Svete: Brown Overruled; Fraud Aimed at Gullible is Actionable
In U.S. v. Svete, No. 05-13809 (Feb. 2, 2009) (en banc), the Court, reversing U.S. v. Brown, 79 F.3d 1550 (11th Cir. 1996), held that proof of mail fraud does not require proof that a scheme is capable of deceiving a reasonably prudent person. Schemes aimed at the gullible or improvident are also prohibited.
The Court relied on the settled understanding of the reach of the mail fraud statute (which was broader than the common law fraud prohibition), on Neder v. U.S.’s discussion of materiality, and on the fact that Brown’s "ordinary prudence" element was rejected by all other circuits.
Consequently, the district court did not err when it declined to give the jury the requested Brown instruction regarding the requirement of ordinary prudence on the part of the victim. The Court upheld the fraud convictions.
The Court relied on the settled understanding of the reach of the mail fraud statute (which was broader than the common law fraud prohibition), on Neder v. U.S.’s discussion of materiality, and on the fact that Brown’s "ordinary prudence" element was rejected by all other circuits.
Consequently, the district court did not err when it declined to give the jury the requested Brown instruction regarding the requirement of ordinary prudence on the part of the victim. The Court upheld the fraud convictions.
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