In Marshall v. Sec., Dep’t of Corrections, No. 09-15419 (June 28, 2010), the Court denied habeas relief to a Florida death-row inmate convicted of a 1988 murder.
Marshall argued that when the Florida trial court overrode the jury’s recommendation of a life sentence, and sentenced him to death, it violated Florida’s rule limiting such overrides to cases where it was clear that virtually no reasonable person could differ. The Court pointed out that the evidence showed that Marshall did not act in self-defense when he killed another prison inmate. Further, on federal habeas review, the courts ought not “second-guess” a Florida court’s application of its jury-override ruling, but can only overturn if it was arbitrary or discriminatory. Nothing in the record so suggested.
Tuesday, June 29, 2010
Monday, June 28, 2010
Suggs: No Prejudice in Failure to Present Mental Deficit History
In Suggs v. McNeil, No. 09-12718 (June 24, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder.
The Court rejected the argument that the Florida Supreme Court unreasonably applied the prejudice prong of Strickland when it determined that counsel’s failure at the penalty phase to adequately present a defense based on Suggs’ mental health did not prejudice the outcome.
The Court rejected the argument that the Florida courts were not entitled to deference because they compartmentalized the different aspects of prejudice. The Court noted that the Florida Supreme Court stated that it had considered the penalty phase “as a whole.”
The Court recognized that the jury had split 7-5 in favor of death, but found that Suggs had not shown that new evidence of his mental deficit, along with new aggravating evidence, would not have caused a single new juror to vote for life and no new jurors to vote for death. Even in light of the closely divided jury, the evidence of Suggs’ mental deficit would not have changed the outcome, because of he fell “well within the normal range of general intellectual functioning,” and additional evidence of mental history would have opened the door for the State to present evidence of Suggs’ drug and alcohol use. Further, the State would have been able to paint Suggs as a violent, manipulative person.
The Court rejected the argument that the Florida Supreme Court unreasonably applied the prejudice prong of Strickland when it determined that counsel’s failure at the penalty phase to adequately present a defense based on Suggs’ mental health did not prejudice the outcome.
The Court rejected the argument that the Florida courts were not entitled to deference because they compartmentalized the different aspects of prejudice. The Court noted that the Florida Supreme Court stated that it had considered the penalty phase “as a whole.”
The Court recognized that the jury had split 7-5 in favor of death, but found that Suggs had not shown that new evidence of his mental deficit, along with new aggravating evidence, would not have caused a single new juror to vote for life and no new jurors to vote for death. Even in light of the closely divided jury, the evidence of Suggs’ mental deficit would not have changed the outcome, because of he fell “well within the normal range of general intellectual functioning,” and additional evidence of mental history would have opened the door for the State to present evidence of Suggs’ drug and alcohol use. Further, the State would have been able to paint Suggs as a violent, manipulative person.
Huff: Double-Recovery Victim Windfall Not Proper in Restitution
In U.S. v. Huff, No. 08-16272 (June 25, 2010), the Court rejected the argument that the government proved multiple hub-and-spoke conspiracies, not a single conspiracy, but vacated a restitution order.
Rejecting Huff’s conspiracy argument, the Court noted that the evidence showed that the defendants interacted with one another and with their co-conspirators. This was not a case where the conspirators were unaware of others’ activity. Thus, the evidence established a single conspiracy.
The court affirmed the calculation of an $86,938.03 loss amount for sentence enhancement purposes. The Court rejected the argument that the loss amount should be limited by the amount of the kickback the defendant received. The Court noted that the amount of the bribe a defendant receives can be the loss amount, but only if it is not possible to calculate the net benefit of the improper benefit garnered by the defendant. Here, the benefit resulting from the illegal scheme exceeded the amount of Huff’s kickbacks.
Turning to restitution, the Court noted that the district court imposed $86,938.03 in restitution – the same as the loss amount. However, a defendant’s culpability does not always equal the victim’s injury. Further, the district court did not adequately explain how it reached its restitution figure. The Court noted two major ambiguities in the record. First, while some orders placed by the victim were the subject of the fraud, other orders were actually filled – and these orders must be offset against the restitution amount. Second, the restitution amount might have intended to include the kickbacks received by another co-defendant. But restitution is limited to the amount wrongfully taken by the defendant. If restitution was ordered in the co-defendant’s case, this would result in a windfall double-recovery for the victim. The Court therefore remanded for a limited resentencing on the issue of restitution.
Rejecting Huff’s conspiracy argument, the Court noted that the evidence showed that the defendants interacted with one another and with their co-conspirators. This was not a case where the conspirators were unaware of others’ activity. Thus, the evidence established a single conspiracy.
The court affirmed the calculation of an $86,938.03 loss amount for sentence enhancement purposes. The Court rejected the argument that the loss amount should be limited by the amount of the kickback the defendant received. The Court noted that the amount of the bribe a defendant receives can be the loss amount, but only if it is not possible to calculate the net benefit of the improper benefit garnered by the defendant. Here, the benefit resulting from the illegal scheme exceeded the amount of Huff’s kickbacks.
Turning to restitution, the Court noted that the district court imposed $86,938.03 in restitution – the same as the loss amount. However, a defendant’s culpability does not always equal the victim’s injury. Further, the district court did not adequately explain how it reached its restitution figure. The Court noted two major ambiguities in the record. First, while some orders placed by the victim were the subject of the fraud, other orders were actually filled – and these orders must be offset against the restitution amount. Second, the restitution amount might have intended to include the kickbacks received by another co-defendant. But restitution is limited to the amount wrongfully taken by the defendant. If restitution was ordered in the co-defendant’s case, this would result in a windfall double-recovery for the victim. The Court therefore remanded for a limited resentencing on the issue of restitution.
Alexander: Firing Firearm from Vehicle is "Crime of Violence"
In U.S. v. Alexander, No. 08-17062 (June 25, 2010), the Court held that a prior conviction under Fla. Stat. § 790.15(2) fo discharging a firearm from a vehicle within 1,000 feet of another person qualified as a crime of violence under the career offender provisions of the Sentencing Guidelines. The Court also rejected Alexander’s challenge to the district court’s refusal to award credit for time served in state custody, noting that this issue must first be raised by administrative challenge to the Bureau of Prisons’ computation of his sentence.
After reviewing Begay and Chambers, the Court noted that courts must use a “categorical” approach to the “crime of violence” issue, looking to the elements of the offense. Here, the offense was more serious than the Florida misdemeanor of merely discharging a firearm in a public place, a distinction that “suggests that this provision targets violent and aggressive conduct, not the mere careless use of a firearm.” Further, the offense posed a serious potential risk of physical injury, because the firing of a weapon poses a risk that a bystander will be injured by a stray bullet. Further, like the enumerated offenses of burglary and arson, the conduct is “purposeful,” even if it does not involve “a specific intent to harm.” Firing a firearm “[m]ore often than not . . . is a violent and aggressive act.” “[A] person who discharges a firearm from a vehicle performs a deliberate act that poses an obvious risk of injury or death to innocent third parties.” The Court analogized the offense to fleeing at high speed or with wanton disregard for safety, conduct which it had held to qualify as a crime of violence in U.S. v. Harris, 586 F.3d 1283 (11th Cir. 2009).
After reviewing Begay and Chambers, the Court noted that courts must use a “categorical” approach to the “crime of violence” issue, looking to the elements of the offense. Here, the offense was more serious than the Florida misdemeanor of merely discharging a firearm in a public place, a distinction that “suggests that this provision targets violent and aggressive conduct, not the mere careless use of a firearm.” Further, the offense posed a serious potential risk of physical injury, because the firing of a weapon poses a risk that a bystander will be injured by a stray bullet. Further, like the enumerated offenses of burglary and arson, the conduct is “purposeful,” even if it does not involve “a specific intent to harm.” Firing a firearm “[m]ore often than not . . . is a violent and aggressive act.” “[A] person who discharges a firearm from a vehicle performs a deliberate act that poses an obvious risk of injury or death to innocent third parties.” The Court analogized the offense to fleeing at high speed or with wanton disregard for safety, conduct which it had held to qualify as a crime of violence in U.S. v. Harris, 586 F.3d 1283 (11th Cir. 2009).
DeYoung: No Habeas relief for 1993 murders
In DeYoung v. Schofield, (09-10964), the Court affirmed the denial of habeas relief to a Georgia death-row inmate for the 1993 murder of his parents and sister.
The Court rejected the argument that DeYoung’s counsel was deficient in failing to investigate his personal history, noting counsel’s investigation of potential witnesses. The Court also rejected the argument that counsel failed to adequately investigate Spencer’s mental health history, noting that Spencer himself had not disclosed to counsel any mental health information.
Finally, the Court noted that DeYoung would have been unable to show prejudice, because of the “carefully planned and premeditated” nature of his murders, and the “study in brutality” in his method of killing.
The Court rejected the argument that DeYoung’s counsel was deficient in failing to investigate his personal history, noting counsel’s investigation of potential witnesses. The Court also rejected the argument that counsel failed to adequately investigate Spencer’s mental health history, noting that Spencer himself had not disclosed to counsel any mental health information.
Finally, the Court noted that DeYoung would have been unable to show prejudice, because of the “carefully planned and premeditated” nature of his murders, and the “study in brutality” in his method of killing.
Wednesday, June 23, 2010
Williams: Florida Battery does not Qualify for Career Offender
In U.S. v. Williams, No. 08-10184 (June 22, 2010), on remand from the United States Supreme Court in light of Johnson v. U.S., 130 S.Ct. 1265 (2010), the Court held that a prior Florida State conviction for battery on a law enforcement officer did not qualify as a crime of violence for career offender sentencing purposes. The Court noted that battery did not necessarily involve the requisite "physical force." Nor did the factual record so indicate. The Court therefore vacated the sentence and remanded for resentencing.
Gilbert: Career Offender Status Can be a Non-existent offense
In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.
At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.
The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”
At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.
The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”
Tuesday, June 01, 2010
Lall: Defendant's Statements Involuntary: Suppressed
In U.S. v. Lall, No. 09-10794 (May 28, 2010), the Court held that a defendant did not make a voluntary waiver of his Miranda rights, and that his statements were involuntary. Because the government’s uses at trial of the statements and of the evidence derived from the statements were not harmless, the Court reversed the defendant’s conviction.
After giving Lall his Miranda warnings, a police detective told him that any information he shared with police would not be used to prosecute him. Lall then showed the detective the equipment he used to commit identity theft and explained how each device worked. Later, Lall was asked to come to the police station, and told again that he was not going to be charged “with any of this.” Lall gave another incriminating statement.
The Court held that, even if Lall was not in “custody” for Miranda purposes, the statements he gave were involuntary because the police “explicitly assured Lall that anything he said would not be used to prosecute him.”
Turning to the second confession at the police station, the Court rejected the government’s claim that Lall had waived his objection to its admission, noting that the district court’s ruling to exclude it was “enough to preserve the issue.” The Court held that the second confession was also the product of “improper promises of non-prosecution.”
The Court ruled that the identity theft equipment should have been suppressed, because the police “did not have the slightest clue” that this equipment was incriminating until Lall said so.
The Court found that the error in admitting the evidence at trial was not harmless, citing the prosecution’s own concession during closing argument to the jury: “Folks, if none this [physical evidence] were here, none of this, and if Lall’s statements were not before you, I would tend to agree with defense counsel [that it’s] not a real strong case for the government.”
After giving Lall his Miranda warnings, a police detective told him that any information he shared with police would not be used to prosecute him. Lall then showed the detective the equipment he used to commit identity theft and explained how each device worked. Later, Lall was asked to come to the police station, and told again that he was not going to be charged “with any of this.” Lall gave another incriminating statement.
The Court held that, even if Lall was not in “custody” for Miranda purposes, the statements he gave were involuntary because the police “explicitly assured Lall that anything he said would not be used to prosecute him.”
Turning to the second confession at the police station, the Court rejected the government’s claim that Lall had waived his objection to its admission, noting that the district court’s ruling to exclude it was “enough to preserve the issue.” The Court held that the second confession was also the product of “improper promises of non-prosecution.”
The Court ruled that the identity theft equipment should have been suppressed, because the police “did not have the slightest clue” that this equipment was incriminating until Lall said so.
The Court found that the error in admitting the evidence at trial was not harmless, citing the prosecution’s own concession during closing argument to the jury: “Folks, if none this [physical evidence] were here, none of this, and if Lall’s statements were not before you, I would tend to agree with defense counsel [that it’s] not a real strong case for the government.”
Friday, May 28, 2010
Cunningham: Apprendi does not apply to supervised release revocation proceedings
In U.S. v. Cunningham, No. 09-13989 (May 28, 2010), the Court rejected a constitutional challenge to 18 U.S.C. § 3583(e)(3), the statute that authorizes a district court to revoke a term of supervised release and impose a sentence for all or part of the term of supervised release.
Citing Apprendi, Cunningham argued that the judge’s imposition of a sentence based on a revocation of supervised release violated his right to jury trial. The Court pointed out that supervised release is treated as part of the penalty for the initial offense. The Court noted that a person facing revocation of supervised release has already been convicted of a crime. Joining all other Circuits to have considered the question, the Court held that a defendant is not entitled to a jury trial at a supervised release revocation proceeding.
Citing Apprendi, Cunningham argued that the judge’s imposition of a sentence based on a revocation of supervised release violated his right to jury trial. The Court pointed out that supervised release is treated as part of the penalty for the initial offense. The Court noted that a person facing revocation of supervised release has already been convicted of a crime. Joining all other Circuits to have considered the question, the Court held that a defendant is not entitled to a jury trial at a supervised release revocation proceeding.
Thomas v. Allen: Atkins Bars Execution of Mentally Retarded Offender
In Thomas v. Allen, No. 09-12869 (May 27, 2010), the Court affirmed the granting of habeas relief to an Alabama death row inmate based on a finding that he was mentally retarded and therefore ineligible for execution under Atkins v. Virginia.
The Court noted that Atkins is a new rule of constitutional law made retroactive to cases on collateral review, and therefore, contrary to the findings of the Alabama courts, could not be defaulted under state procedural rules.
Reviewing the numerous studies showing that Thomas’ IQ fell below the mental retardation threshold, and other evidence, the Court held that Alabama courts unreasonably applied Atkins when they found Thomas was not mentally retarded.
The Court noted that Atkins is a new rule of constitutional law made retroactive to cases on collateral review, and therefore, contrary to the findings of the Alabama courts, could not be defaulted under state procedural rules.
Reviewing the numerous studies showing that Thomas’ IQ fell below the mental retardation threshold, and other evidence, the Court held that Alabama courts unreasonably applied Atkins when they found Thomas was not mentally retarded.
Thursday, May 27, 2010
Boffil-Rivera: False Statement was Material
In U.S. v. Boffil-Rivera, No. 08-16098 (May 27, 2010), the Court rejected a sufficiency of the evidence challenge to a conviction for making a false statement of material fact in a matter within the jurisdiction of a government agency, in violation of 18 U.S.C. § 1001(a)(2).
Boffil-Rivera denied to federal immigration officials that he had anything to do with a gun that was found in the car in which he was a passenger. The Court found that there was sufficient evidence that this statement was false, that the denial was intended to mislead, and that it was material because, at the time, Boffil-Rivera was not permitted to possess a gun.
Boffil-Rivera denied to federal immigration officials that he had anything to do with a gun that was found in the car in which he was a passenger. The Court found that there was sufficient evidence that this statement was false, that the denial was intended to mislead, and that it was material because, at the time, Boffil-Rivera was not permitted to possess a gun.
Alfaro-Moncada: Ok to Border Search Cabin Without Reasonable Suspicion
In U.S. v. Alfaro-Moncada, No. 08-16442 (May 27, 2010), the Court held that a search of the cabin of a crew member of a foreign cargo vessel did not violate the Fourth Amendment, even though the Agricultural Enforcement Team that boarded the ship to inspect for prohibited agricultural materials had no reasonable suspicion regarding the contents of the cabin. The Court therefore affirmed the denial of a motion to suppress the child pornography DVDs that were found in the crew member’s cabin.
The Court noted that the search was a “border search” because the ship was docked after traveling three miles up the Miami River. The Court noted the heightened national interest in searching for agricultural contraband coming into the United States, citing the “extensive damage” caused by pests and diseases once they enter the country. The Court further stated that “any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country.”
The Court also rejected the argument that the admission of five still images of child pornography was unduly prejudicial, when Alfaro-Moncada had stipulated that the DVDs actually contained child pornography. The Court noted that the jury was shown only five images out of 4,650 on the DVDs.
The Court noted that the search was a “border search” because the ship was docked after traveling three miles up the Miami River. The Court noted the heightened national interest in searching for agricultural contraband coming into the United States, citing the “extensive damage” caused by pests and diseases once they enter the country. The Court further stated that “any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country.”
The Court also rejected the argument that the admission of five still images of child pornography was unduly prejudicial, when Alfaro-Moncada had stipulated that the DVDs actually contained child pornography. The Court noted that the jury was shown only five images out of 4,650 on the DVDs.
Wright: Community Control Revocation Counts Like Probation Revocation
In U.S. v. Wright, No. 09-12685 (May 26, 2010), the Court held that a Florida sentence of “community control” is “similar” to other forms of conditional release, like probation, and that a sentence for revocation of community control therefore counts for purposes of calculating criminal history points under USSG § 4A1.1(a). The Court noted the similarities between the purpose and operation of probation and community control.
The Court also rejected a constitutional challenge to 18 U.S.C. § 922(g), pointing out that the statute only requires a “minimal nexus” to interstate commerce, which was satisfied here because Wright’s firearms were manufactured outside Florida.
The Court also rejected a constitutional challenge to 18 U.S.C. § 922(g), pointing out that the statute only requires a “minimal nexus” to interstate commerce, which was satisfied here because Wright’s firearms were manufactured outside Florida.
Friday, May 21, 2010
Martinez: Court of Appeals Has Broad Power to Fashion Resentencing
In U.S. v. Martinez, No. 08-13846 (May 19, 2010), the Court, denying a motion for rehearing or rehearing en banc, the Court rejected the argument that its prior decision in U.S. v. Canty foreclosed the Court of Appeals, when it vacated a sentencing enhancement based on the defendant’s leadership role, to allow the government at resentencing to present new evidence in order to establish that the leadership enhancement was warranted.
The Court noted its broad appellate power under 28 U.S.C. § 2106. The Court further noted its precedent which in some cases when it reversed a sentence called for a de novo resentencing, while in other cases (as in Canty) providing for narrower relief. Thus, while in Canty it was appropriate to deny the government a “second bite at the battle” on resentencing because the government at the first sentencing had disclaimed reliance on other evidence, in Martinez’ cases, where defense counsel had not clearly objected to the leadership enhancement, it was fair on resentencing to allow the government to present new evidence regarding the defendant’s leadership role.
The Court noted its broad appellate power under 28 U.S.C. § 2106. The Court further noted its precedent which in some cases when it reversed a sentence called for a de novo resentencing, while in other cases (as in Canty) providing for narrower relief. Thus, while in Canty it was appropriate to deny the government a “second bite at the battle” on resentencing because the government at the first sentencing had disclaimed reliance on other evidence, in Martinez’ cases, where defense counsel had not clearly objected to the leadership enhancement, it was fair on resentencing to allow the government to present new evidence regarding the defendant’s leadership role.
Garcia: Defining Generic "Aggravated Assault"
In U.S. v. Garcia, No. 09-10534 (May 21, 2010), the Court rejected a statute of limitations challenge to an illegal re-entry conviction, but vacated a sentence because a prior Arizona aggravated assault conviction was incorrectly counted as a “crime of violence.”
Because the illegal re-entry statute provides no specific statute of limitations, the general five-year term applied to the charged offense. An illegal reentry offense is deemed complete, triggering the commencement of the five-year limitations period, when, with the exercise of diligence, law enforcement could have discovered the illegality of the defendant’s presence in the United States.
The Court rejected Garcia’s argument that law enforcement could have discovered his presence in the United States more than five years before the indictment, when his wife filed an application for his citizenship which disclosed his prior deportation. The Court found that immigration officials reasonably delayed an investigation of Garcia’s status until his application process was complete. The delay in the completion of the application process – which pushed the investigation and discovery of Garcia’s unlawful status within the limitations period – was attributable to incorrect information his wife had filled out. Hence, immigration officials were sufficiently diligent in investigating Garcia’s unlawful status.
Turning to sentencing, the Court rejected the government’s argument that it was unfeasible to define a generic offense of “aggravated assault,” and that any offense labeled “aggravated assault” should therefore qualify as a “crime of violence” for purposes the 16-level Guideline enhancement. The Court determined that the generic offense “involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” The Court found that Garcia’s prior Arizona offense was a “simple assault,” for which the only aggravating factor was the status of the victim: a law enforcement officer. The offense therefore did not qualify as a generic “aggravated assault” for Guideline purposes.
The Court further found that because recklessness was a sufficient mens rea to commit aggravated assault in Arizona, the offense did not qualify as a “crime of violence” because it did not involve the intentional use of physical force.
The Court therefore vacated the 16-level “crime of violence” enhancement.
Because the illegal re-entry statute provides no specific statute of limitations, the general five-year term applied to the charged offense. An illegal reentry offense is deemed complete, triggering the commencement of the five-year limitations period, when, with the exercise of diligence, law enforcement could have discovered the illegality of the defendant’s presence in the United States.
The Court rejected Garcia’s argument that law enforcement could have discovered his presence in the United States more than five years before the indictment, when his wife filed an application for his citizenship which disclosed his prior deportation. The Court found that immigration officials reasonably delayed an investigation of Garcia’s status until his application process was complete. The delay in the completion of the application process – which pushed the investigation and discovery of Garcia’s unlawful status within the limitations period – was attributable to incorrect information his wife had filled out. Hence, immigration officials were sufficiently diligent in investigating Garcia’s unlawful status.
Turning to sentencing, the Court rejected the government’s argument that it was unfeasible to define a generic offense of “aggravated assault,” and that any offense labeled “aggravated assault” should therefore qualify as a “crime of violence” for purposes the 16-level Guideline enhancement. The Court determined that the generic offense “involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” The Court found that Garcia’s prior Arizona offense was a “simple assault,” for which the only aggravating factor was the status of the victim: a law enforcement officer. The offense therefore did not qualify as a generic “aggravated assault” for Guideline purposes.
The Court further found that because recklessness was a sufficient mens rea to commit aggravated assault in Arizona, the offense did not qualify as a “crime of violence” because it did not involve the intentional use of physical force.
The Court therefore vacated the 16-level “crime of violence” enhancement.
Monday, May 17, 2010
Frazier: False statement is material to firearm sale
In U.S. v. Frazier, No. 08-11655 (May 14, 2010), the Court affirmed false statement firearm convictions, and reversed a sentence because it was incorrectly calculated.
Turning first to a jurisdictional question, the Court recognized that the defendant filed his notice after the expiration of the 10-day deadline for filing a notice of appeal. However, because the government voluntarily forfeited its objection to the untimeliness of the notice, the Court had jurisdiction.
The Court rejected the argument that the evidence was insufficient to sustain the false statement convictions. The defendant argued that the false statement relating to the purchaser of the firearm was immaterial, because neither the real purchaser, nor the straw purchaser of the firearm, was a convicted felon; both were eligible to purchase the firearm. The Court noted that while the lawfulness of the sale may depend on the identity of the purchaser, the identity of the purchaser remains material to the sale itself. Therefore, the false statements relating to the identity of the purchaser were material to the sale, regardless of whether the buyers were all eligible to punish a firearm.
The Court also found sufficient evidence to sustain a money laundering conviction. Although the facts did not establish a direct link between drug proceeds and moneys, there was ample circumstantial evidence from which an inference could be drawn that a connection existed.
Finally, the Court vacated the sentence on account of the district court miscalculation of the Guideline offense level.
Turning first to a jurisdictional question, the Court recognized that the defendant filed his notice after the expiration of the 10-day deadline for filing a notice of appeal. However, because the government voluntarily forfeited its objection to the untimeliness of the notice, the Court had jurisdiction.
The Court rejected the argument that the evidence was insufficient to sustain the false statement convictions. The defendant argued that the false statement relating to the purchaser of the firearm was immaterial, because neither the real purchaser, nor the straw purchaser of the firearm, was a convicted felon; both were eligible to purchase the firearm. The Court noted that while the lawfulness of the sale may depend on the identity of the purchaser, the identity of the purchaser remains material to the sale itself. Therefore, the false statements relating to the identity of the purchaser were material to the sale, regardless of whether the buyers were all eligible to punish a firearm.
The Court also found sufficient evidence to sustain a money laundering conviction. Although the facts did not establish a direct link between drug proceeds and moneys, there was ample circumstantial evidence from which an inference could be drawn that a connection existed.
Finally, the Court vacated the sentence on account of the district court miscalculation of the Guideline offense level.
Gomez-Castro: 1028(a)(1): Jury Can Use Its Common Sense
In U.S. v. Gomez-Castro, No. 09-12557 (May 13, 2010), the Court held that the government presented sufficient evidence to sustain a conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The Court rejected the argument that there was insufficient evidence to establish that Gomez-Castro knew that she had used the identity of a real person. Pointing out that such knowledge can be established with circumstantial evidence, the Court noted that the evidence included proof that Gomez-Castro paid $2,500 for a fake birth certificate and social security card, had tested their authenticity repeatedly before using them to obtain a passport, and that the jury could use its common sense to know that Gomez-Castro knew that the government used verification procedures to verify the identity she was stealing.
McNair: Alabama Sewer Bribery Convictions Upheld
In U.S. v. McNair, No. 07-11476 (May 12, 2010), in a 167-page opinion, the Court affirmed multiple bribery convictions of government officials and private contractors involved in sewer projects in Jefferson County, Alabama.
The Court rejected a challenge to the jury instructions’ failure to instruct that a bribery conviction requires a showing of a quid pro quo, i.e., that a specific thing was exchanged for a specific act. The Court noted that the bribery statute, 18 U.S.C. § 666, does not contain the expression “quid pro quo. Further, the statute’s requirement of a “corrupt” mens rea suffices to circumscribe criminal liability, as it requires a dishonest goal, or unlawful means. Because the statute applies not only to specific actual acts, but to possible future acts, “the quo need not be specific at the time of the quid.” An instruction that requires a “corrupt” state of mind sufficiently excludes the possibility that the exchange was legitimately designed to foster “goodwill.”
The Court rejected sufficiency of the evidence challenges to the convictions, pointing out that the contractors’ provision of free construction work on the homes and offices of the government officials coincided with the award of sewer contracts, and noting the pains to which the defendants went to cover up their conduct.
The Court also rejected a challenge, under Fed. R. Evid. 404(b) to the admission against one government official of evidence of bribery by the same contractor of another government official. The Court pointed out that evidence of multiple bribery recipients undercut the defense that the payments were made to one out of “friendship.”
The Court rejected the argument that the prosecution knowingly put on false testimony of a government witness, finding that the testimony may not have been false, and that the government did not know it was false – and that even if knowingly false, it did not affect the jury’s evaluation of the credibility of the witness.
As to a single count of conspiracy under 18 U.S.C. § 371, the Court overturned a conviction it was barred by the statute of limitations. The count was based on non-conspirator’s receipt of money from another non-conspirator, pursuant to an agreement between conspirators that was made at a time outside the statute of limitations. Although the receipt of illicit payment can qualify as an overt act for purposes of a conspiracy, and although this receipt of payment occurred within the statute of limitations, it involved non-conspirators, and there was no evidence that the conspirators who agreed on the payment knew the timing of the payment.
The Court rejected the argument that Wharton’s Rule, which precludes punishment for a substantive offense and of a conspiracy offense if the substantive offense itself requires the participation of two persons. The Court found no Congressional intent to preclude cumulative punishment for bribery and for conspiracy to commit bribery.
Turning to sentencing, the Court affirmed a $851,927 restitution, an amount which corresponded to the bribes paid. The Court rejected the argument that the government failed to show that the County lost this amount, noting the betrayal of the public trust, and that companies expect to recoup bribes in the cost of doing business. The Court recognized that because one defendant was 84 years old, the record did not show that he could repay the restitution in his lifetime; however, the Court found no plain error, because the County was entitled to recover restitution payments “for as long as they are made.”
The Court vacated the imposition of a $250,000 fine on one defendant, finding it was unable to glean from the record the basis for this specific amount. However, the Court affirmed the imposition of a $19.4 million fine on another defendant, noting that it was well below the Guideline range.
The Court rejected a challenge to the jury instructions’ failure to instruct that a bribery conviction requires a showing of a quid pro quo, i.e., that a specific thing was exchanged for a specific act. The Court noted that the bribery statute, 18 U.S.C. § 666, does not contain the expression “quid pro quo. Further, the statute’s requirement of a “corrupt” mens rea suffices to circumscribe criminal liability, as it requires a dishonest goal, or unlawful means. Because the statute applies not only to specific actual acts, but to possible future acts, “the quo need not be specific at the time of the quid.” An instruction that requires a “corrupt” state of mind sufficiently excludes the possibility that the exchange was legitimately designed to foster “goodwill.”
The Court rejected sufficiency of the evidence challenges to the convictions, pointing out that the contractors’ provision of free construction work on the homes and offices of the government officials coincided with the award of sewer contracts, and noting the pains to which the defendants went to cover up their conduct.
The Court also rejected a challenge, under Fed. R. Evid. 404(b) to the admission against one government official of evidence of bribery by the same contractor of another government official. The Court pointed out that evidence of multiple bribery recipients undercut the defense that the payments were made to one out of “friendship.”
The Court rejected the argument that the prosecution knowingly put on false testimony of a government witness, finding that the testimony may not have been false, and that the government did not know it was false – and that even if knowingly false, it did not affect the jury’s evaluation of the credibility of the witness.
As to a single count of conspiracy under 18 U.S.C. § 371, the Court overturned a conviction it was barred by the statute of limitations. The count was based on non-conspirator’s receipt of money from another non-conspirator, pursuant to an agreement between conspirators that was made at a time outside the statute of limitations. Although the receipt of illicit payment can qualify as an overt act for purposes of a conspiracy, and although this receipt of payment occurred within the statute of limitations, it involved non-conspirators, and there was no evidence that the conspirators who agreed on the payment knew the timing of the payment.
The Court rejected the argument that Wharton’s Rule, which precludes punishment for a substantive offense and of a conspiracy offense if the substantive offense itself requires the participation of two persons. The Court found no Congressional intent to preclude cumulative punishment for bribery and for conspiracy to commit bribery.
Turning to sentencing, the Court affirmed a $851,927 restitution, an amount which corresponded to the bribes paid. The Court rejected the argument that the government failed to show that the County lost this amount, noting the betrayal of the public trust, and that companies expect to recoup bribes in the cost of doing business. The Court recognized that because one defendant was 84 years old, the record did not show that he could repay the restitution in his lifetime; however, the Court found no plain error, because the County was entitled to recover restitution payments “for as long as they are made.”
The Court vacated the imposition of a $250,000 fine on one defendant, finding it was unable to glean from the record the basis for this specific amount. However, the Court affirmed the imposition of a $19.4 million fine on another defendant, noting that it was well below the Guideline range.
Wednesday, May 12, 2010
Mason: Confrontation Clause Error Harmless
In Mason v. Allen, No. 09-12195 (May 11, 2010), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder.
The Court found that the State committed error when it deprived Mason of the opportunity to cross-examine the informant on whose hearsay testimony it relied at trial. The State also committed error when the prosecutor stated in closing argument at the penalty phase that, “like all of the modern-day criminals,” the defendant intended to write a book – when there was no evidence to support this. However, the errors were harmless. The defendant confessed to the murder. The murder weapon was found in his car.
The Court found that the defendant had defaulted his argument that his confession was coerced.
Stone v. Powell foreclosed his argument that the State courts incorrectly decided his motion to suppress based on a Fourth Amendment violation
The Court found that the State committed error when it deprived Mason of the opportunity to cross-examine the informant on whose hearsay testimony it relied at trial. The State also committed error when the prosecutor stated in closing argument at the penalty phase that, “like all of the modern-day criminals,” the defendant intended to write a book – when there was no evidence to support this. However, the errors were harmless. The defendant confessed to the murder. The murder weapon was found in his car.
The Court found that the defendant had defaulted his argument that his confession was coerced.
Stone v. Powell foreclosed his argument that the State courts incorrectly decided his motion to suppress based on a Fourth Amendment violation
Monday, May 10, 2010
Phaknikone: MySpace Evidence Not Admissible Under 404(b)
In U.S. v. Phaknikone, No. 09-10084 (May 10, 2010), the Court found that the district court violated Fed. R. Evid. 404(b) when it admitted evidence from the defendant’s MySpace account, but held that the error was harmless in light of the overwhelming evidence of guilt, and affirmed bank robbery convictions.
The MySpace evidence consisted, inter alia, of a photograph posted on Phaknikone’s profile page that showed him holding a gun, and of his nickname, “Trigga.” The Court rejected the government’s argument that the photograph was properly admitted under Rule 404(b) as proof of modus operandi. “Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.” The Court found that the government improperly introduced photographs because it wanted the jury to infer that Phaknikone “is a gangster who is likely to rob banks.”
However, the error in admitting the evidence was harmless in light of Phaknikone’s confession to four bank robberies, the fact that stolen money was found at the scene of his arrest, and witness identification evidence. In addition, the government presented other modus operandi evidence.
Turning to sentencing, the district court rejected Phaknikone’s argument that his sentence of 2,005 months for seven bank robberies was greater than necessary. The sentence was based in part on a 25-year mandatory punishment under 18 U.S.C. § 924(c).
The MySpace evidence consisted, inter alia, of a photograph posted on Phaknikone’s profile page that showed him holding a gun, and of his nickname, “Trigga.” The Court rejected the government’s argument that the photograph was properly admitted under Rule 404(b) as proof of modus operandi. “Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.” The Court found that the government improperly introduced photographs because it wanted the jury to infer that Phaknikone “is a gangster who is likely to rob banks.”
However, the error in admitting the evidence was harmless in light of Phaknikone’s confession to four bank robberies, the fact that stolen money was found at the scene of his arrest, and witness identification evidence. In addition, the government presented other modus operandi evidence.
Turning to sentencing, the district court rejected Phaknikone’s argument that his sentence of 2,005 months for seven bank robberies was greater than necessary. The sentence was based in part on a 25-year mandatory punishment under 18 U.S.C. § 924(c).
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