Small

In Small v. U.S., No. 03-750 (April 16, 2005), the Court held that the phrase "convicted in any court" contained in the prohibition in 18 U.S.C. § 922(g)(1) on firearm possession by any person convicted in any court of a crime punishable by imprisonment exceeding one year encompassed only domestic, not foreign, convictions.
The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.

Paquantino

In Pasquantino v. U.S., No. 03-725 (April 26, 2005), the Court held that a plot to defraud the Canadian government of tax revenue violates the federal wire fraud statute, 18 U.S.C. § 1343. The plot involved the smuggling of large quantities of liquor from the United States to evade Canada's heavy alcohol import taxes..
The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.

Verbitskaya: Hobbs Act convictions affirmed

In U.S. v. Verbitskaya, No. 03-11870 (April 21, 2005), the Court affirmed convictions and sentences for defendants convicted of extortion in violation of the Hobbs Act.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant’s challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant’s connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel’s absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.

Raad: Alien smuggling mandatory minimum not cruel & unusual

In U.S. v. Raad, No. 03-15300 (April 21, 2005), the Court rejected a challenge to the imposition of a five-year mandatory minimum sentence for smuggling three or more aliens in violation of 8 U.S.C. § 1324(B)(2)(B)(iii). The Court rejected the argument that this punishmnent was "cruel and unusual" punishment under the Eighth Amendment. The Court noted that it had previously upheld mandatory minimums, and found that the five-year punishment was not "cruel and unusual" simply because it fell at the high end of the Guideline range.

Abreu: Fingerprint expert ok

In U.S. v. Abreu, No. 04-14376 (April 20, 2005), the Court affirmed a conviction for marihuana distribution, rejecting the defendant’s argument that the government’s fingerprint expert failed to satisfy the requirements of FRE 702.
The Court noted that other Circuits have found that fingerprint evidence is sufficiently reliable and meets the standards of FRE 702. Moreover, in view of the "broad latitude" of district courts in admitting evidence, the district court did not err in relying on the "general acceptance" of such evidence.

Rodriguez: rehearing en banc denied

In U.S. v. Rodriguez, No. 03-00217 (April 19, 2005) (no plain error under Booker where the defendant could not show he would get a lower sentence at resentencing), the 11th Circuit denied rehearing en banc. Judges Tjoflat and Barkett dissented at length from the denial of rehearing en banc, and Judge Carnes wrote a long opinion concurring in the result.

Day: Vulnerable victim enhancement

In U.S. v. Timothy Day, No. 04-10551 (April 15, 2005), the Court (Marcus, Fay & Siler b.d.) affirmed the convictions and sentences of defendants convicted of mail fraud.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.

Custer revisited

In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court (Tjoflat, Dubina, Marcus), on a petition for panel rehearing, the Court vacated Custer’s sentence and remanded for resentencing consistent with the Supreme Court’s opinion in Booker. The Court noted that its prior decision rejecting Custer’s challenge to his sentence came down shortly before the Supreme Court decided Booker. The Court noted that Custer had raised Booker-type challenges to his sentence in his initial brief, had preserved the issue in the district court, and not waived the issue in his plea agreement.

Orduno-Mireles: Almendarez-Torres still good law

In U.S. v. Orduno-Mireles, No. 04-12630 (April 6, 2005), the Court (Birch, Barkett, Marcus) rejected post-Booker challenges to a defendant’s 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A), after a conviction for illegal re-entry after being deported subsequent to an aggravated felony conviction.
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]

Paz: Booker error not Harmless

In U.S. v. Paz, 2005 WL 757876 (Apr. 5, 2005), the Court (Tjoflat, Anderson, Pryor), in its first post-Booker application of harmless error review of a sentence, vacated a sentence and remanded for resentencing because the district court at sentencing stated that, were the Guidelines not mandatory, it would impose a lesser sentence.

Johnson AEDPA requires due diligence

In Johnson v. U.S., No. 03-9865 (Apr. 4, 2005), the Supreme Court held that, in a case of a prisoner’s collateral attack on a federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated, the one-year statute of limitations of 28 U.S.C. § 2255 ¶ 6 begins to run when a prisoner receives notice of the order vacating the conviction, provided that the prisoner sought the vacatur with due diligence in state court after entry of the federal judgment with the enhanced sentence.
In so ruling, the Supreme Court rejected the Eleventh Circuit’s test, which had dismissed the prisoner’s claim on the ground that that the state court order did not start the limitations period. However, the Supreme Court ultimutely upheld the decision of the Eleventh Circuit, finding that Johnson had not acted with due diligence in seeking vacatur of his prior conviction, and therefore finding that his § 2255 petition was time-barred.

Byrd: Defendant can't testify after govt rebuttal

In U.S. v. Byrd, No. 04-12188 (March 25, 2005), the Court (Carnes, Hull, Wilson), affirmed convictions for armed bank robbery, use of a firearm during the commission of a bank robbery, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 2113(a), (d), 924(c) & 922(g).
The Court held that the trial court did not abuse its discretion when it refused to allow the defendant to testify after the close of the government’s rebuttal case, and the defendant voluntarily waived his right to testify in his defense (but later changed his mind and wanted to testify. The Court agreed with other Circuits to have considered the issue, and noted that "reasonable rules" must govern trial proceedings. The Court recognized that Byrd asked to testify before closing arguments, and that his testimony was of "inherent significance." However, allowing Byrd to testify could have prejudiced the prosecution, because he should not have been able to take the stand and "say whatever he wanted to without much fear of anybody being around to rebut it." Moreover, having heard the rebuttal witnesses, Byrd could manufacture explanations, "smoothing over to some extent the discrepancies between the testimony of his alibi witnesses and the government’s rebuttal witness."
Finally, the only explanation Byrd gave was that he changed his mind. This was not a valid reason for not testifying at the proper time.
The Court summarily rejected Byrd’s challenge to the sufficiency of the evidence, noting, among other things: "The robber took $4,680 from the bank, and the police found $4,650 in a box under Byrd’s bed."

Peters: Sale of firearm to convicted felon

In U.S. v. Peters, No. 04-11658 (March 24, 2005), the Court (Marcus, Fay, Siler b.d.) affirmed a convcition for sale of a firearm and ammunition to a convicted felon, in violation of 18 U.S.C. § 922(d)(1).
The Court rejected a sufficiency of the evidence challenge. The Court found that, based on the exchanges between the seller and a confidential informant, the seller was told by the buyer of the firearms that the buyer was a convicted felon. This constituted sufficient evidence from which a jury could find that Peters had reasonable cause to believe that his buyer had a prior felony conviction.
The Court also rejected a Commerce Clause challenge to the federal statute which criminalizes the sale of a firearm to a convicted felon. The Court noted that the sale of a firearm is "economic activity," and therefore fell within Congress’ Commerce Clause power. Further, just as the Court had held that a felon’s possession of a firearm can be made a federal crime, likewise the sale of a firearm to a convicted felon can be a federal crime.

Adams: 10-year window of prior criminal conviction

In U.S. v. Adams, No. 03-15111 (March 23, 2005), the Court (Marcus, Fay, Siler b.d.) held that a prior conviction was within the 10-year window of USSG § 4A1.2(e)(2) for purposes of assessing a criminal history point, even though the prior conviction was based on an offense which occurred more than 10 years before the commencement of the offense of conviction. The Court noted that the Guidelines provide that the 10 year window goes back to the date of sentencing, not the date of the offense. Further, it did not matter that the sentencing was postponed because of a court backlog. The plain language of the Guideline did not recognize such an exception.

Lyons: possessing 4 bullets gets 235 month sentence

In U.S. v. Lyons, No. 03-15073 (March 23, 2005), the Court affirmed the conviction and sentence of a defendant convicted of possession of four Remington .22 caliber bullets, in violation of 18 U.S.C. sections §§ 922(g)(1) and 924(e), and sentenced to 235 months’ incarceration as an armed career offender pursuant to USSG § 4B1.4(b).
The Court rejected the argument that there was no probable cause for the search of Lyons which uncovered the four bullets, because he searched for his "disorderly conduct," and was ultimately acquitted of this charge. The Court noted that the acquittal does not affect the inquiry into whether the police had probable cause to arrest. Here, under the circumstances – Lyons’ unruly conduct while the police were trying to control an unruly Ft. Myers crowd – the police had probable cause to arrest him for disorderly conduct in violation of Fla. Stat. § 877.03.
The Court also rejected the argument that Lyons should have been to introduce evidence of his acquittal for disorderly conduct in order to show the bias of the police officer who testified against him at the federal trial on ammunition possession. The Court found that the trial court did not abuse its discretion in holding this evidence "irrelevant."
Finally, the Court rejected the claim that the 235-month sentence violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court noted that Lyons’ recidivism justified his classification as an armed career criminal, and the corresponding level VI criminal history category and heightened offense level. "The length of his sentence was the result of his extensive criminal history and it is well-settled that a longer sentence may be imposed on a recidivist, based on his criminal history, even if the offense of conviction is relatively minor in nature."

Dowling: Booker waiver -- and no plain error

In U.S. v. Dowling, No. 04-10464 (March 23, 2005), the Court (Anderson, Pryor & Hill) affirmed a conviction and 240-month sentence for conspiracy to distribute cocaine.
The Court rejected a sufficiency of the evidence challenge, noting that there was "more than sufficient evidence" to support the jury’s verdict.
Turning to the challenge to the sentence, the Court found that no Booker error was preserved in the district court, because counsel did not preserve a "constitutional objection." The Court noted that counsel had noted that the jury’s special verdict only convicted the defendant of a 500 gram cocaine conspiracy. Counsel objected at sentencing that the jury verdict "under the unique facts and circumstances of this case, must be respected." The Court noted that the "unique facts and circumstances" had to do with the defendant’s statute of limitations defense, and that there was no reference to the Sixth Amendment, or citation to Apprendi, or challenge to the judge’s fact-finding authority. The Court noted that Fed. R. Crim. P. 51(b) requires a party to inform the judge not only of the action it wishes but the "grounds therefor."
Reviewing the issue for "plain error," the Court noted that "nothing in the record indicates that the judge might have imposed a different sentence in the new advisory regime." The Court recognized that the district judge expressed "some concern and an intellectual difficulty" with applying one Guideline enhancement – a cross-reference enhancement for murder – but pointed out that this enhancement made no difference in Dowling’s case, because the drug quantity and other enhancements would already have justified a sentence above the 120-month statutory maximum that was imposed. [Note : In Dowling, even though defense counsel at sentencing objected that a longer sentence shouldn’t be imposed because the jury’s special verdict on drug quantity "must be respected," the 11th Circuit found that the error in imposing sentence above the special verdict quantity wasn’t preserved, because counsel didn’t say something like "based on the Sixth Amendment," or "based on Apprendi." Yet, at the time of sentencing (pre-Booker, indeed, pre-Blakely) neither the Sixth Amendment nor Apprendi applied to Guideline enhancements. So the district judge would have been powerless to agree with a "Sixth Amendment" or "Apprendi" objection, even if it had been raised with the greatest clarity. One wonders if Dowling isn’t elevating form over substance. ]

Mesa: Handcuff detention ok

In Muehler v. Mena, No. 03-1423 (March 22, 2005), the Supreme Court held that the detention in handcuffs of an occupant of premises which were being search for weapons and evidence of gang membership did not violate the Fourth Amendment and therefore could not give rise to a suit under 42 U.S.C. § 1983.
The Court noted that under Michigan v. Summers, police has the authority to detain occupants of premises while a proper search is being conducted. The use of force in the form of handcuffs to detain Mena was reasonable here because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
The Court also found no Fourth Amendment violation in the questioning of Mesa about her immigration status. Mere police questioning does not constitute a "seizure."
The Court remanded the case for consideration of Mesa’s argument that the length of her detention violated the Fourth Amendment.

Brown v. Payton

In Brown v. Payton, No. 03-1029 (March 22, 2005), the Supreme Court held that, under the deferential AEDPA standard for federal review of state decisions, the California Supreme Court did not render a decision contrary to, or unreasonably applying, federal law, when it declined to find a constitutional violation in the prosecutor’s incorrect statement in closing argument in the death phase of the trial that a jury could not take account in mitigation of anything that happened after the crime, i.e, the defendant’s post-offense rehabilitation. The trial court gave a standard § (k) instruction that "any other" extenuating factor could be considered.
The Court noted that in Boyde v. California, it had upheld the § k instruction, and that the California Supreme Court had relied on Boyde in affirming the defendant’s sentence. The found that the California Supreme Court had applied Boyde to a different set of facts and could not therefore, under AEDPA, be found to be contrary to established federal law.

Garcia: Convictions affirmed; somes sentences vacated

In U.S. v. Garcia, No. 03-10350 (March 22, 2005), the Court (Edmondson, Wilson, Restani b.d.) affirmed convictions for conspiracy to manufacture marijuana plants, and for maintaining a place for the purpose of manufacturing marijuana, in violation of 21 U.S.C. §§ 846 & 856(a)(1).
The Court rejected sufficiency of the evidence challenges. The Court noted that credibility determinations regarding the testifying co-conspirators were the exclusive province of the jury. The Court further found other evidence sufficient evidence.
The Court also rejected one defendant’s argument that evidence should not have been admitted because it pertained to the other defendants, not to him. The Court noted that the evidence was clearly relevant to the co-defendants, that the jury was instructed to consider each charge separately, and that the jury was able to do so because it acquitted on some counts.
The Court further rejected the argument that prejudicial argument of co-counsel during closing should have been the basis for a mistrial. The Court noted that the jury was instructed that the arguments of counsel were not evidence. Further, considering all the evidence, the comments did not prevent the jury from making a reliable judgment.
The Court also rejected the argument that an "accessory after the fact" jury instruction should have been given, because one defendant’s conduct consisted only in dismantling a grow house. The Court noted this did not prejudice the defense, which was free to argue, and did argue, that dismantling a grow house does not prove manufacture of marijuana or maintenance of a grow house.
The Court noted the district court refused to consider granting a defendant a "safety-valve’ sentence reduction below the mandatory minimum solely because the defendant had not been completely debriefed prior to sentencing, and even though the defendant asked for a continuance of the sentencing in order to be able to be debriefed and qualify for safety valve. The Court rejected the government’s argument that U.S. v. Brownlee, 204 F.3d 1302 (11th Cir. 2000) established a jurisdictional rule that precludes consideration of safety-valve if the proffer is presented after the commencement of the sentencing hearing. The Court found the language in Brownlee to be dicta. Further, the defendant’s failure to be fully debriefed "was due to a misunderstanding." In these circumstances, the district court had discretion to continue the sentencing to allow a debriefing, and the case was remanded for the district court to consider the safety valve request.
Finally, the Court recognized that the sentencing enhancement based on the number of marijuana plants violated Booker, because the jury specifically found in a special interrogatory verdict that a defendant was not responsible for more than 100 plants, but the judge at sentencing nonetheless fond this number by a preponderance of the evidence. This sentence was therefore vacated and remanded for resentencing.

Smith: Plain Maxwell Commerce Clause Error

In U.S. v. Smith, No. 03-13639 (March 18, 2005), the Court (Tjoflat, Roney, Hill) reversed the conviction of a defendant convicted of producing child pornography, and possessing child pornography, in violation of 18 U.S.C. §§ 2251(a) & 2252A(a)(5)(B) on the ground that, as applied, the statutes exceeded Congress’ Commerce Clause power.
The Court noted that the only connection to interstate commerce was the fact that the paper on which the photos were printed was received from out of state. Citing U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (vacating child pornography conviction where the only interstate commerce nexus was the fact that the disks on which the images were stored had traveled, when blank, in interstate commerce), the Court held that the defendant’s conviction was "plain error."
The Court recognized that, notwithstanding Maxwell, the defendant would have waived the Commerce Clause issue if he had failed to raise it in his initial brief, under U.S. v. Levy, but, liberally construing an initial brief which never mentioned Commerce Clause caselaw but made a Commerce Clause argument, the Court held that the issue was not waived. Plain error applied because the issue was waived in the district court, because trial counsel merely argued that the statute should not be interpreted to extend to Smith’s conduct, not that the statute was unconstitutional as applied to Smith’s conduct.
Applying the Maxwell Commerce Clause analysis, the Court found that there was nothing "commercial or economic" about Smith’s conduct of taking pornographic photos of minors, an activity the Court found distinct from the wheat production at issue in Wiockard v. Filburn, 317 U.S. 111 (1942). The Court rejected the argument that the statute’s "jurisdictional hook" sufficed to satisfy the Commerce Clause, noting that the hook, which required a showing that materials had been shipped in interstate commerce, encompassed every case imaginable.
Applying "plain error" analysis, the Court found that the error in convicting Smith met all four of the "plain error" criteria, noting that it would harm the public reputation of the criminal justice system to brush aside the limits the Constitution places on the Federal Government.