In U.S. v. Chirino-Alvarez, No. 09-11317 (Aug. 23, 2010), the Court rejected sufficiency of the evidence challenges to alien-smuggling convictions.
Citing the Ninth Circuit’s en banc decision in U.S. v. Lopez, the Court recognized that the evidence would be insufficient if Chirino-Alvarez’ participation in the alien-smuggling scheme occurred only after the aliens arrived in the United States. However, the Court found that based on the evidence, including admissions to an undercover agent, the jury could reasonably infer that Chirino-Alvarez “was involved in the scheme throughout.”
The Court declined to reach Chirino-Alvarez’ challenge to the Guideline computation of his sentence, noting that he was sentenced to a statutory mandatory minimum, and that any error in the Guideline calculation was therefore harmless.
Monday, August 23, 2010
Friday, August 20, 2010
Kottwitz: Good Faith Reliance Instruction Should Have Been Given
In U.S. v. Kottwitz, No 08-13740 (Aug. 19, 2010), the Court held that the evidence was insufficient to sustain some tax fraud charges, and that a new trial was required on others because the district court denied a special instruction regarding the defendants’ good faith reliance on their accountant’s advice.
The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.
As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.
The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.
As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.
Tuesday, August 17, 2010
Newman: Taking Child to Yemen Not "Otherwise Extensive" Offense
In U.S. v. Newman, No. 09-14557 (Aug. 17, 2010), the Court affirmed the imposition of a sentence enhancement under USSG § 2J1.2(b)(2) for “substantial interference with the administration of justice.” Newman was convicted of removing his child outside the United States with the intent to obstruct the other parent’s lawful exercise of parental rights. The enhancement was based on Newman’s “self-help” reaction in response to a state court custody order. The Court rejected the argument that this basis created a “per se rule” that the enhancement would apply in all custody cases where an order has issued. It is the nexus between Newman’s dissatisfaction with the custody determination and his intent to frustrate it, not the order itself, that renders the enhancement applicable.
The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”
The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”
The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”
The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”
Monday, August 16, 2010
Villarreal: 10-year delay not speedy trial violation
In U.S. v. Villarreal, No. 09-11348 (Aug. 13, 2009), the Court rejected a constitutional speedy trial right challenge to an indictment, and affirmed a 328-month sentence on a defendant convicted of trafficking in more than 10,000 kilograms of marijuana.
The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.
Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.
The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.
Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.
Monday, August 09, 2010
Jackson: 3582(c)(2) does not encompass safety-valve
In U.S. v. Jackson, No. 08-13645 (Aug. 9, 2010), the Court held that a defendant cannot obtain a safety-valve sentence reduction at a resentencing under 18 U.S.C. § 3582(c)(2).
The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”
The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.
The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”
The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.
Epps: Pillowcase not protected by Fourth Amendment
In U.S. v. Epps, No. 09-12285 (Aug. 6, 2010), the Court rejected a Fourth Amendment challenge to the police’s seizure of the contents of a pillow case.
The defendant was running away after a bank robbery, pointing a gun toward the police. A police officer in a police car stopped him by hitting him with the front of his patrol car. The defendant rolled off the car’s hood and the gun and pillow case he was holding “went flying.” The pillow case had some pink stains – suggestive of the dye pack that had stained cash stolen during a bank robbery. The police searched the pillow case and found, inter alia, currency marked with a red dye.
The Court found no Fourth Amendment violation in the search of the pillow case. The Court noted that the pink stains were indicative of an exploding dye pack. The Court found that the contents of the pillow case could be inferred from its outward appearance, and therefore fell outside the ambit of Fourth Amendment protection.
The Court found no improper vouching in the prosecutor’s statement during closing argument that “somebody else” – a witness who had not testified -- was present with the testifying police officer when Epps confessed to police.
The defendant was running away after a bank robbery, pointing a gun toward the police. A police officer in a police car stopped him by hitting him with the front of his patrol car. The defendant rolled off the car’s hood and the gun and pillow case he was holding “went flying.” The pillow case had some pink stains – suggestive of the dye pack that had stained cash stolen during a bank robbery. The police searched the pillow case and found, inter alia, currency marked with a red dye.
The Court found no Fourth Amendment violation in the search of the pillow case. The Court noted that the pink stains were indicative of an exploding dye pack. The Court found that the contents of the pillow case could be inferred from its outward appearance, and therefore fell outside the ambit of Fourth Amendment protection.
The Court found no improper vouching in the prosecutor’s statement during closing argument that “somebody else” – a witness who had not testified -- was present with the testifying police officer when Epps confessed to police.
Thursday, August 05, 2010
Mills: Mandatory Minimum Crack Offenders Not Eligible for Crack Amendment Reductions
In U.S. v. Mills, No. 08-11760 (Aug. 5, 2010), the Court rejected the argument that defendants convicted of a crack cocaine offense who were originally subject to mandatory minimum sentences, but received substantial assistance sentence reductions below the mandatory minimums, could, in a proceeding for reduction of sentence under 18 U.S.C. § 3582(c)(2), get the benefit of the Sentencing Commission’s 2007 amendment to the crack cocaine Guidelines.
The Court reasoned that the defendants were ineligible for the Guideline amendments, because their original sentences were based on the statutory mandatory minimum. The Court noted that in U.S. v. Moore it had held that career offenders were categorically ineligible for the Guideline amendment reductions. Further, in U.S. v. Williams, it had held that a defendant was ineligible for the Guideline amendment reductions because he was sentenced to a mandatory minimum under the drug statute, based on his two prior convictions. The Court rejected concerns about the “arbitrariness” of its result: “To the extent that defendants believe that . . . the Guidelines led to ‘arbitrary’ results in their cases, their redress is with Congress and the mandatory minimum sentences for drug offenses it has set.”
The Court reasoned that the defendants were ineligible for the Guideline amendments, because their original sentences were based on the statutory mandatory minimum. The Court noted that in U.S. v. Moore it had held that career offenders were categorically ineligible for the Guideline amendment reductions. Further, in U.S. v. Williams, it had held that a defendant was ineligible for the Guideline amendment reductions because he was sentenced to a mandatory minimum under the drug statute, based on his two prior convictions. The Court rejected concerns about the “arbitrariness” of its result: “To the extent that defendants believe that . . . the Guidelines led to ‘arbitrary’ results in their cases, their redress is with Congress and the mandatory minimum sentences for drug offenses it has set.”
Monday, August 02, 2010
Irey: En Banc reversal of child molester sentence
In U.S. v. Irey, No. 08-10997 (July 29, 2010) (en banc), the Court reversed as substantively unreasonable a sentence of 210 months, below the Guidelines advisory sentence (and statutory maximum) of 360 months, because the district court failed to adequately punish a sex offender convicted of coercing minors to engage in sexually explicit conduct outside the United States, in violation of 18 U.S.C. § 2251(c).
The Court noted that, contrary to other Circuits, it found no “parsimony principle” in 18 U.S.C. § 3553(a)’s instruction to impose a sentence “sufficient, but not greater than necessary,” to achieve the listed sentencing purposes. The Court stated that the statute is “result neutral.”
The Court noted that the government did not appeal any of the district court’s findings of fact. The Court therefore assumed that these findings were correct. But if found a number of legal errors in the district court’s weighing of the sentencing factors.
The Court faulted the district court for stating that Irey was a “victim” when he was a predator. This finding “tainted its weighing of the § 3553(a) factors.”
The Court also faulted the district court for stating that pedophilia was an illness, noting that just as there is a line between alcoholism and driving under the influence, there is a line between pedophilia and child molestation. The district court erred in reducing Irey’s sentence because Irey’s offense was only partly volitional, and this error warranted “closer review” of the sentence.
The Court also faulted the district court for relying on a finding that Irey was a good family man, and good to his community. The Court equated this to finding that Ted Bundy was a valuable member of his community, and that “but for his taste for human flesh and how he satisfied it, Jeffrey Dahmer was not so bad.” The Court noted that Irey’s family support for him, while admirable, was not supported by the record. The Court also faulted the district court for relying on Irey’s age, finding his age no different from those of other persons in middle age convicted of serious crimes.
The Court also noted the “horrific” nature of the multiple crimes, pointing out that the 210 months sentence would amount to only 4 months and a week punishment for each of the 50 children Irey raped, sodomized or tortured.
The Court pointed out that the 210 months was just 30 months more than Irey would have received had he been convicted of taking a single obscene photograph of a minor.
Turning to deterrence, the Court faulted the district court’s “idiosyncratic doubts” about whether pedophiles could be deterred from committing crimes. The Court noted these views conflicted with the policy judgments of Congress. The Court added that age, for this offense, did not reduce the risk of recidivism.
The Court noted that the district court imposed a lifetime of supervised release, but stated that supervised release does not offer the level of protection of incarceration.
The Court noted that the Guidelines sentence was life, reduced to 30 years on account of the statutory maximum. The Court further noted a number of Guideline provisions that counseled against sentence reductions based on some of the factors the district court cited, for example, the instruction not to depart downward on account of diminished capacity when the offense is violent. The Court found that the district court “ignored” the advisory Guidelines, contrary to § 3553(a) instruction that they be considered.
Turning to sentencing disparity, the Court reviewed a number of cases, and found that Irey’s sentence fell below sentences for other child sex offenders. The disparity resulted from the fact that Irey received a reduction that he should not have received.
The Court disagreed with the district court that its sentence would promote respect for the law. “Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”
The Court noted that, contrary to other Circuits, it found no “parsimony principle” in 18 U.S.C. § 3553(a)’s instruction to impose a sentence “sufficient, but not greater than necessary,” to achieve the listed sentencing purposes. The Court stated that the statute is “result neutral.”
The Court noted that the government did not appeal any of the district court’s findings of fact. The Court therefore assumed that these findings were correct. But if found a number of legal errors in the district court’s weighing of the sentencing factors.
The Court faulted the district court for stating that Irey was a “victim” when he was a predator. This finding “tainted its weighing of the § 3553(a) factors.”
The Court also faulted the district court for stating that pedophilia was an illness, noting that just as there is a line between alcoholism and driving under the influence, there is a line between pedophilia and child molestation. The district court erred in reducing Irey’s sentence because Irey’s offense was only partly volitional, and this error warranted “closer review” of the sentence.
The Court also faulted the district court for relying on a finding that Irey was a good family man, and good to his community. The Court equated this to finding that Ted Bundy was a valuable member of his community, and that “but for his taste for human flesh and how he satisfied it, Jeffrey Dahmer was not so bad.” The Court noted that Irey’s family support for him, while admirable, was not supported by the record. The Court also faulted the district court for relying on Irey’s age, finding his age no different from those of other persons in middle age convicted of serious crimes.
The Court also noted the “horrific” nature of the multiple crimes, pointing out that the 210 months sentence would amount to only 4 months and a week punishment for each of the 50 children Irey raped, sodomized or tortured.
The Court pointed out that the 210 months was just 30 months more than Irey would have received had he been convicted of taking a single obscene photograph of a minor.
Turning to deterrence, the Court faulted the district court’s “idiosyncratic doubts” about whether pedophiles could be deterred from committing crimes. The Court noted these views conflicted with the policy judgments of Congress. The Court added that age, for this offense, did not reduce the risk of recidivism.
The Court noted that the district court imposed a lifetime of supervised release, but stated that supervised release does not offer the level of protection of incarceration.
The Court noted that the Guidelines sentence was life, reduced to 30 years on account of the statutory maximum. The Court further noted a number of Guideline provisions that counseled against sentence reductions based on some of the factors the district court cited, for example, the instruction not to depart downward on account of diminished capacity when the offense is violent. The Court found that the district court “ignored” the advisory Guidelines, contrary to § 3553(a) instruction that they be considered.
Turning to sentencing disparity, the Court reviewed a number of cases, and found that Irey’s sentence fell below sentences for other child sex offenders. The disparity resulted from the fact that Irey received a reduction that he should not have received.
The Court disagreed with the district court that its sentence would promote respect for the law. “Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”
Tuesday, July 27, 2010
Tome: One-year internet ban affirmed
In U.S. v. Tome, No. 09-16486 (July 27, 2010), on review of a revocation of supervised release, the Court upheld the imposition of a 24-month sentence and a one-year internet ban as a condition of additional supervised release.
The defendant, after admitting to possession of computer disks containing over 100,000 images of child pornography and being convicted of possessing child pornography, was released on supervised release. While on supervised release, Tome violated his conditions by, inter alia, sending a letter to an inmate graphically describing having sex with children, falsely denying internet usage, and associating with persons convicted of child pornography offenses. In addition, the probation officer stated that during his sex offender treatment sessions Tome was “lacking in motivation, defensive and arrogant.” The Court found that the district court acted within its discretion in imposing the maximum 24-month term, and in prohibiting Tome from using the internet for one year. The Court noted that Tome had not established that his “odd jobs” required internet usage.
The defendant, after admitting to possession of computer disks containing over 100,000 images of child pornography and being convicted of possessing child pornography, was released on supervised release. While on supervised release, Tome violated his conditions by, inter alia, sending a letter to an inmate graphically describing having sex with children, falsely denying internet usage, and associating with persons convicted of child pornography offenses. In addition, the probation officer stated that during his sex offender treatment sessions Tome was “lacking in motivation, defensive and arrogant.” The Court found that the district court acted within its discretion in imposing the maximum 24-month term, and in prohibiting Tome from using the internet for one year. The Court noted that Tome had not established that his “odd jobs” required internet usage.
Wednesday, July 21, 2010
Hall: Teenager's Confession Not Coerced
In Hall v. Thomas, No. 09-12729 (July 20, 2010), the Court denied habeas relief to an Alabama inmate sentenced to life imprisonment for robbery and kidnaping.
The Court found that Hall, a juvenile, gave a voluntary confession. The Court recognized that Hall’s father was not present when his son was questioned by police, and that Hall claimed his confession was coerced, but noted that Hall’s audiotaped statement showed that he waived his Miranda rights, and indicated no coercion.
The Court also rejected ineffective assistance of counsel claims, pointing out that Hall suffered no prejudice because of the evidence against him, which included his confession.
The Court found that Hall, a juvenile, gave a voluntary confession. The Court recognized that Hall’s father was not present when his son was questioned by police, and that Hall claimed his confession was coerced, but noted that Hall’s audiotaped statement showed that he waived his Miranda rights, and indicated no coercion.
The Court also rejected ineffective assistance of counsel claims, pointing out that Hall suffered no prejudice because of the evidence against him, which included his confession.
Belfast: Charles Taylor's son convictions affirmed
In U.S. v. Belfast, No. 09-10461 (July 15, 2010), in an 87-page opinion, the Court affirmed the torture convictions and 1,164-month sentence of the son of former Liberian President Charles Taylor.
The Court rejected the argument that the torture statute, 18 U.S.C. § 2340A, was unconstitutional because its definition of torture swept more broadly than the Convention Against Torture, which authorized the enactment of the statute. The Court noted that the Judiciary is deferential to other Branches on such issues, and found the differences between the definitions immaterial.
The Court also rejected the argument that § 2340A could not apply extraterritorially to acts in Liberia. The Court pointed out that Belfast was a United States citizen, that Congress has the power to regulate the extraterritorial acts of citizens, and that the statute was intended to apply extraterritorially. The Court also found that 18 U.S.C. § 924(c) could apply extraterritorially, because this is an ancillary statute that relies on a separate substantive crime, here the substantive crime of torture.
Turning to evidentiary issues, the Court rejected the argument that a torture victim’s statements were hearsay, finding them admissible both as prior consistent statements offered to rebut a claim of fabrication, or as excited utterances.
The Court found no error in the admission of unredacted medical records containing statements that the victims suffered “abuse” or “torture,” noting that these were statements of “causation” that did not assign fault for the abuse or torture.
The Court found no error in the admission of rap lyrics found in a notebook in the defendant’s suitcase, noting that they were adequately authenticated, and probative of the defendant’s commission of atrocities.
The Court rejected the argument that the government should have been compelled to produce then-classified Justice Department “Torture Memos.” The Court found these documents “irrelevant” to the defense, since the acts charged in the case were not similar to those described in the Torture Memos.
Turning to the sentence, the Court found that the kidnaping and murder enhancements were supported by the evidence, and that the district court was authorized to consider this evidence.
The Court rejected the argument that the torture statute, 18 U.S.C. § 2340A, was unconstitutional because its definition of torture swept more broadly than the Convention Against Torture, which authorized the enactment of the statute. The Court noted that the Judiciary is deferential to other Branches on such issues, and found the differences between the definitions immaterial.
The Court also rejected the argument that § 2340A could not apply extraterritorially to acts in Liberia. The Court pointed out that Belfast was a United States citizen, that Congress has the power to regulate the extraterritorial acts of citizens, and that the statute was intended to apply extraterritorially. The Court also found that 18 U.S.C. § 924(c) could apply extraterritorially, because this is an ancillary statute that relies on a separate substantive crime, here the substantive crime of torture.
Turning to evidentiary issues, the Court rejected the argument that a torture victim’s statements were hearsay, finding them admissible both as prior consistent statements offered to rebut a claim of fabrication, or as excited utterances.
The Court found no error in the admission of unredacted medical records containing statements that the victims suffered “abuse” or “torture,” noting that these were statements of “causation” that did not assign fault for the abuse or torture.
The Court found no error in the admission of rap lyrics found in a notebook in the defendant’s suitcase, noting that they were adequately authenticated, and probative of the defendant’s commission of atrocities.
The Court rejected the argument that the government should have been compelled to produce then-classified Justice Department “Torture Memos.” The Court found these documents “irrelevant” to the defense, since the acts charged in the case were not similar to those described in the Torture Memos.
Turning to the sentence, the Court found that the kidnaping and murder enhancements were supported by the evidence, and that the district court was authorized to consider this evidence.
Tuesday, July 20, 2010
Snipes: Tax Evasion Convictions and Sentence Affirmed
In U.S. v. Snipes, No. 08-12402 (July 16, 2010), the Court affirmed tax evasion convictions and a three-year sentence.
The district court’s denied a venue transfer motion pursuant to 18 U.S.C. § 3237(b), because the motion was filed after this statute’s 20-day deadline. The Court rejected the argument that Fed. R. Crim. P. 12(c), which authorizes district courts to set deadlines for pretrial motions, supersedes § 3237(b)’s deadline.
The Court rejected the argument that the district court should have held a hearing to decide whether venue was proper. The Court noted that venue is an element of a charge, which must be decided by a jury, not a district court. The Court rejected the argument that constitutional rights were at stake in the venue question, and therefore should be resolved pre-trial, pointing out that, unlike exclusionary rule rights, the Sixth Amendment right to have venue proven as an element of the offense “is safeguarded by integrating it into the trial.”
The Court affirmed the district court’s refusal to instruct the jury regarding Snipes “good faith reliance on the Fifth Amendment.” The Court noted that the district court gave adequate instructions regarding good faith, and pointed out that the Fifth Amendment reliance was not related to the counts of which Snipes stood convicted.
Turning to sentencing, the Court rejected the argument that USSG § 2T1.1 is invalid because a misdemeanor is a less serious offense. The Court noted that the Guidelines provide graduated tax evasion penalties, depending on the amount of the tax loss, recognizing that major tax evasions are “more serious.”
The Court also rejected the argument that § 2T1.1 was invalid because it was not the product of empirical research. The Court noted that the lack of a empirical research, while a “factor” that can justify a district court’s departure from the Guidelines, does not require wholesale invalidation of a Guideline. Further, § 2T1.1 was created after empirical analysis of sentences for white-collar crimes.
The Court upheld an obstruction of justice Guideline enhancement. The Court found sufficient evidence that Snipes threateningly instructed an employee not to respond to a grand jury subpoena.
Finally, the Court upheld the 36-month sentence’s reasonableness.
The district court’s denied a venue transfer motion pursuant to 18 U.S.C. § 3237(b), because the motion was filed after this statute’s 20-day deadline. The Court rejected the argument that Fed. R. Crim. P. 12(c), which authorizes district courts to set deadlines for pretrial motions, supersedes § 3237(b)’s deadline.
The Court rejected the argument that the district court should have held a hearing to decide whether venue was proper. The Court noted that venue is an element of a charge, which must be decided by a jury, not a district court. The Court rejected the argument that constitutional rights were at stake in the venue question, and therefore should be resolved pre-trial, pointing out that, unlike exclusionary rule rights, the Sixth Amendment right to have venue proven as an element of the offense “is safeguarded by integrating it into the trial.”
The Court affirmed the district court’s refusal to instruct the jury regarding Snipes “good faith reliance on the Fifth Amendment.” The Court noted that the district court gave adequate instructions regarding good faith, and pointed out that the Fifth Amendment reliance was not related to the counts of which Snipes stood convicted.
Turning to sentencing, the Court rejected the argument that USSG § 2T1.1 is invalid because a misdemeanor is a less serious offense. The Court noted that the Guidelines provide graduated tax evasion penalties, depending on the amount of the tax loss, recognizing that major tax evasions are “more serious.”
The Court also rejected the argument that § 2T1.1 was invalid because it was not the product of empirical research. The Court noted that the lack of a empirical research, while a “factor” that can justify a district court’s departure from the Guidelines, does not require wholesale invalidation of a Guideline. Further, § 2T1.1 was created after empirical analysis of sentences for white-collar crimes.
The Court upheld an obstruction of justice Guideline enhancement. The Court found sufficient evidence that Snipes threateningly instructed an employee not to respond to a grand jury subpoena.
Finally, the Court upheld the 36-month sentence’s reasonableness.
Thursday, July 15, 2010
Allen: Defendant Can Blame Counsel for His Own Litigation Decision
In Allen v. Sec. Fla. Dep’t of Corrections, No. 09-13217 (July 14, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1991 murder.
The Court rejected Allen’s argument that the Florida state courts incorrectly failed to consider the errors in his trial cumulatively. The Court noted that the cumulative error issue was briefed in the Florida courts, and Florida law requires courts to consider the cumulative impact of errors.
The Court also rejected Allen’s argument that counsel was ineffective in failing to put on mitigating evidence at the penalty phase of his trial. The Court pointed out that Allen specifically instructed counsel not to present mitigating evidence. “Allen . . . does not have the right to escape the consequences of his own decision not to present any mitigating circumstances evidence by shifting the blame for it to someone else.”
The Court rejected Allen’s argument that the Florida state courts incorrectly failed to consider the errors in his trial cumulatively. The Court noted that the cumulative error issue was briefed in the Florida courts, and Florida law requires courts to consider the cumulative impact of errors.
The Court also rejected Allen’s argument that counsel was ineffective in failing to put on mitigating evidence at the penalty phase of his trial. The Court pointed out that Allen specifically instructed counsel not to present mitigating evidence. “Allen . . . does not have the right to escape the consequences of his own decision not to present any mitigating circumstances evidence by shifting the blame for it to someone else.”
Wednesday, July 14, 2010
Walker: No Clearly Established Crawford Rights In Civil Commitments
In Walker v. Hadi, No. 09-15701 (June 4, 2010), the Court held that, in a habeas proceeding challenging a Florida civil commitment order classifying Walker as a sexually violent predator, Walker could not show error based on the violation of his right to cross- examine witnesses, under Crawford v. Washington, because it is not “clearly established” that Crawford rights exist in civil commitment proceedings.
The Court noted that AEDPA bars relief for habeas petitioners unless they can show an unreasonable application of “clearly established” law as determined by the Supreme Court. However, to date the Supreme Court has not addressed whether Crawford protections, which exist in criminal proceedings, also exist in civil commitment proceedings. Thus, the state court which denied Walker Crawford protections did not violate “clearly established” law.
The Court noted that AEDPA bars relief for habeas petitioners unless they can show an unreasonable application of “clearly established” law as determined by the Supreme Court. However, to date the Supreme Court has not addressed whether Crawford protections, which exist in criminal proceedings, also exist in civil commitment proceedings. Thus, the state court which denied Walker Crawford protections did not violate “clearly established” law.
Fontenot: Government Need Only Prove Federal Investigative Jurisdiction
In U.S. v. Fontenot, No. 08-12266 (July 13, 2010), the Court, on plain error review, held that it was not erroneous, in a prosecution for making a false entry in a document with the intent to impede an investigation within the jurisdiction of a United States agency, in violation of 18 U.S.C. § 1519, to instruct the jury that the government is not required to prove that the defendant knew that his conduct would obstruct a federal investigation.
Fontenot was a corrections officer who falsified information in a report regarding an assault on an inmate.
The Court noted that there can be no “plain” error if there is no precedent from the Supreme Court or the Eleventh Circuit resolving the issue. Here, no such precedent addressed the issue whether the government is required that the defendant knew that his conduct would obstruct a federal investigation. Thus, Fontenot could not show that any error was “plain.” The Court noted legislative history for § 1519 which indicated that the government is only required to prove that the investigation in question fell within federal jurisdiction.
Fontenot was a corrections officer who falsified information in a report regarding an assault on an inmate.
The Court noted that there can be no “plain” error if there is no precedent from the Supreme Court or the Eleventh Circuit resolving the issue. Here, no such precedent addressed the issue whether the government is required that the defendant knew that his conduct would obstruct a federal investigation. Thus, Fontenot could not show that any error was “plain.” The Court noted legislative history for § 1519 which indicated that the government is only required to prove that the investigation in question fell within federal jurisdiction.
Friday, July 09, 2010
Thompson: Manifest Injustice Standard applies to nonpreserved sufficiency challenge
In U.S. v. Thompson, No. 08-13658 (July 8, 2010), the Court rejected sufficiency of the evidence challenges to multiple convictions of robberies and for using firearms in the course of those offenses.
The Court noted that because, as to certain counts, the defendant failed to move at the close of the government’s case for judgments of acquittal, on appeal the challenge to the sufficiency of the evidence supporting the convictions on those counts was not reviewed de novo, but only for “manifest miscarriage of justice.”
The Court found that the evidence was sufficient, citing the testimony of witnesses who identified the defendant, his gun, and his getaway vehicle.
The Court noted that because, as to certain counts, the defendant failed to move at the close of the government’s case for judgments of acquittal, on appeal the challenge to the sufficiency of the evidence supporting the convictions on those counts was not reviewed de novo, but only for “manifest miscarriage of justice.”
The Court found that the evidence was sufficient, citing the testimony of witnesses who identified the defendant, his gun, and his getaway vehicle.
Tuesday, June 29, 2010
Garcia-Cordero: "Bring and Present" Requirement does not violate Privilege
In U.S. v. Garcia-Cordero, No. 09-10292 (June 29, 2010), the Court held that 8 U.S.C. § 1324(a)(2)(B)(iii), which imposes a duty on individuals transporting international passengers to “bring and present” those passengers to appropriate immigration officers at a designated point of entry immediately upon arrival into the country, does not violate a defendant’s privilege against self-incrimination.
The Court noted that the “regulatory regime” doctrine permits the government to compel conduct without violating the privilege against self-incrimination. The Court noted that drivers involved in accidents are required to exchange names and addresses with the drivers of other vehicles, and that persons are required to file income tax returns, even when doing so may expose them to criminal charges.
The Court noted that immigration law is properly classified as regulatory rather than criminal. The “bring and present” requirement is part of the federal regulatory scheme through which the government controls the national borders. The requirement therefore did not run afoul of the caselaw that prohibits invasions of privilege when imposed on “highly selective groups.”
The Court noted that the “regulatory regime” doctrine permits the government to compel conduct without violating the privilege against self-incrimination. The Court noted that drivers involved in accidents are required to exchange names and addresses with the drivers of other vehicles, and that persons are required to file income tax returns, even when doing so may expose them to criminal charges.
The Court noted that immigration law is properly classified as regulatory rather than criminal. The “bring and present” requirement is part of the federal regulatory scheme through which the government controls the national borders. The requirement therefore did not run afoul of the caselaw that prohibits invasions of privilege when imposed on “highly selective groups.”
Rothenberg: Online chats are basis for sentence enhancements
In U.S. v. Rothenberg, No. 08-17106 (June 29, 2010), the Court affirmed the sentence of a defendant who pled guilty to using a computer to induce an individual under 18 to engage in criminal sexual activity, and to possessing child pornography.
The defendant argued that online chats in which he discussed with adults possible sexual acts with minors should not have been the basis for a sentence enhancement under the Guidelines. The Court found that “a sexually solicitous communication” could constitute a substantial step toward commission of an offense, and therefore qualified for the enhancement. “Rothenberg’s chats were specific instructions to adults with influence over young children; these graphic guides to sexual exploitation showed the adults both how, physically, to molest the children and how, emotionally, to persuade the children to comply with the abuse.”
The defendant argued that online chats in which he discussed with adults possible sexual acts with minors should not have been the basis for a sentence enhancement under the Guidelines. The Court found that “a sexually solicitous communication” could constitute a substantial step toward commission of an offense, and therefore qualified for the enhancement. “Rothenberg’s chats were specific instructions to adults with influence over young children; these graphic guides to sexual exploitation showed the adults both how, physically, to molest the children and how, emotionally, to persuade the children to comply with the abuse.”
Vining: Judge's Consultation of Extra-Record Evidence Not Prejudicial
In Vining v. Sec. Dep’t of Corrections, No. 07-15681 (June 28, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for a 1987 murder.
The Court rejected Vining’s argument that he was denied a fair trial because the state trial court considered extra-record information. Applying Brecht v. Abrahamson’s standard of review, the Court determined that any error did not have a substantial effect on the jury’s verdict. The Court noted that none of the extra-record materials that the judge reviewed were presented to the jury, which reached a verdict independent of the judge’s investigation. The Court also noted that the trial judge’s familiarity with hypnosis was irrelevant because of independent evidence that showed that prosecution witnesses were not hypnotized. Finally, at the penalty phase, the jury recommended death, and the judge’s consultation of extra-record information did not affect his decision to impose the jury’s recommended sentence.
The Court also rejected Vining’s ineffective assistance of counsel claims, noting that no reasonable probability existed that the trial would have come out differently.
The Court rejected Vining’s argument that he was denied a fair trial because the state trial court considered extra-record information. Applying Brecht v. Abrahamson’s standard of review, the Court determined that any error did not have a substantial effect on the jury’s verdict. The Court noted that none of the extra-record materials that the judge reviewed were presented to the jury, which reached a verdict independent of the judge’s investigation. The Court also noted that the trial judge’s familiarity with hypnosis was irrelevant because of independent evidence that showed that prosecution witnesses were not hypnotized. Finally, at the penalty phase, the jury recommended death, and the judge’s consultation of extra-record information did not affect his decision to impose the jury’s recommended sentence.
The Court also rejected Vining’s ineffective assistance of counsel claims, noting that no reasonable probability existed that the trial would have come out differently.
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