In U.S. v. Ramirez, No. 06-16404 (Sept. 11, 2007), the Court held that when the government, after filing an original notice of intent to seek a mandatory life sentence, in accordance with 21 U.S.C. § 851(a)(1), thereafter filed a new information, but neglected to file a new § 851 notice, the omission did not prevent the imposition of a life-sentence.
The Court noted that in U.S. v. Thompson, 473 F.3d 1137 (11th Cir. 2006), the Court had held that an original § 851 notice sufficed, notwithstanding the failure to file a new notice after the government had filed a superseding indictment. Here, the government filed a new information, under a new case number. The Court held that, as in Thompson, "a second notice was unnecessary." The Court pointed out that Ramirez had notice of the government’s intent to seek the enhanced sentence. The Court cautioned that it might reach a different result if the § 851 notice related to a case "dismissed long ago."
Thursday, September 27, 2007
Friday, September 21, 2007
Fields: Knowledge of out of state residency of child is essential element
In U.S. v. Fields, No. 06-13784 (Sept. 21, 2007), the Court reversed the conviction of a defendant convicted of willfully failing to pay past due child support, in violation of 18 U.S.C. § 228(a)(1).
The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state. The defendant claimed that since his ex-wife, without his knowledge, moved with their child out of Florida, he, a Florida resident, lacked the willful mens rea of the statute as to the out-of-state status of his child. The district court rejected this argument, finding that the out-of-state status of the child was a mere jurisdictional hook, as to which no mental state was required. Reversing, the Court pointed out that since child support obligations always arose out of state court judgments, the federal duty to pay child support, violation of which can give rise to federal criminal liability, can only arise when the child resides out of state. Federal criminal statutes generally require proof of the defendant’s knowledge of the facts that give rise to a violation of the law, and here one of the facts was the child’s out-of-state residence. The removal of the child by the mother out of state is what made the defendant’s failure to pay child support criminal under federal law, and this event was hidden from the father by the mother. Thus, there was no "willful" violation of the statute. The Court therefore reversed the conviction.
The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state. The defendant claimed that since his ex-wife, without his knowledge, moved with their child out of Florida, he, a Florida resident, lacked the willful mens rea of the statute as to the out-of-state status of his child. The district court rejected this argument, finding that the out-of-state status of the child was a mere jurisdictional hook, as to which no mental state was required. Reversing, the Court pointed out that since child support obligations always arose out of state court judgments, the federal duty to pay child support, violation of which can give rise to federal criminal liability, can only arise when the child resides out of state. Federal criminal statutes generally require proof of the defendant’s knowledge of the facts that give rise to a violation of the law, and here one of the facts was the child’s out-of-state residence. The removal of the child by the mother out of state is what made the defendant’s failure to pay child support criminal under federal law, and this event was hidden from the father by the mother. Thus, there was no "willful" violation of the statute. The Court therefore reversed the conviction.
Thursday, September 20, 2007
Valdes: No reasons for extraordinary variance
In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.
The Court noted that if the district court intended to apply an upward departure under USSG 4A1.3, if failed to follow the requisite procedures, namely it failed to first consider the next criminal history category and make a determination whether its range was appropriate. The Court further noted that if the district court intended to rely on 18 U.S.C. § 3553(a) to vary upward from the Guidelines, the reasons discussed were inadequate to support an extraordinary variance. The Court noted that nothing extraordinary about the case justified the extreme variance, pointing out that even though the offense of conviction involved counterfeiting checks from the clerk of the District Court, this office was no different from any other fraud victim.
The Court noted that if the district court intended to apply an upward departure under USSG 4A1.3, if failed to follow the requisite procedures, namely it failed to first consider the next criminal history category and make a determination whether its range was appropriate. The Court further noted that if the district court intended to rely on 18 U.S.C. § 3553(a) to vary upward from the Guidelines, the reasons discussed were inadequate to support an extraordinary variance. The Court noted that nothing extraordinary about the case justified the extreme variance, pointing out that even though the offense of conviction involved counterfeiting checks from the clerk of the District Court, this office was no different from any other fraud victim.
Tuesday, September 18, 2007
Otero: Counsel not ineffective for failing to appeal
In U.S. v. Otero, No. 06-15791 (Sept. 17, 2007), the Court held that Otero’s lawyer had no constitutional duty under the criteria of Roe v. Flores-Ortega, 528 U.S. 470 (2000) to consult Otero about an appeal, and therefore denied Otero’s § 2255 motion based on counsel’s failure to file an appeal.
Otero pled guilty to drug trafficking charges. He waived his right of appeal in his plea agreement. Consequently, he had no non-frivolous issues for appeal. Hence, no rational defendant in Otero’s position would have sought to appeal, and counsel therefore did not render ineffective assistance.
The Court also rejected Otero’s claim that he specifically instructed his lawyer to file an appeal. The Court adopted the district court’s credibility determinations that Otero never indicated a desire to appeal.
Otero pled guilty to drug trafficking charges. He waived his right of appeal in his plea agreement. Consequently, he had no non-frivolous issues for appeal. Hence, no rational defendant in Otero’s position would have sought to appeal, and counsel therefore did not render ineffective assistance.
The Court also rejected Otero’s claim that he specifically instructed his lawyer to file an appeal. The Court adopted the district court’s credibility determinations that Otero never indicated a desire to appeal.
Friday, September 14, 2007
Marzurky: Cap on Supervised Release
In U.S. v. Mazarky, No. 06-13316 (Sept. 12, 2007), the Court, adopting the view of all other Circuits to have construed the statute, held that a new term of supervised release imposed after two successive revocations of supervised release must be reduced from the statutory maximum by the aggregate length of imprisonment imposed in both revocations. The Court therefore vacated the sentence and remanded for resentencing.
The statutory maximum term of supervised release for Mazarky’s original offense of conviction was three years. After his first revocation of supervised release he was sentenced to 10 months imprisonment. After his second revocation of supervised release he was sentenced to 8 months imprisonment – and the district court also imposed a 28-month term of supervised release. Mazarky argued that the 28-month term was invalid, because the statute required that he be given credit for the aggregate 18 months prison sentence off the 36-month cap, resulting in a maximum of 18 months of supervised release. The Court agreed, noting the interpretations of the applicable statutes, 18 U.S.C. §§3583(e)(3) & (h), by other Circuits.
The Court rejected the government’s argument, first raised in this appeal, that the statutory supervised release maximum was greater than three years, because the drug trafficking offense of conviction carried a statutory maximum greater than the three years provided in the supervised release statute. The Court noted that Mazarky’s guilty plea was based on a three-year maximum for supervised release, and "in order to preserve notice to the defendant" it declined to consider this new argument.
The statutory maximum term of supervised release for Mazarky’s original offense of conviction was three years. After his first revocation of supervised release he was sentenced to 10 months imprisonment. After his second revocation of supervised release he was sentenced to 8 months imprisonment – and the district court also imposed a 28-month term of supervised release. Mazarky argued that the 28-month term was invalid, because the statute required that he be given credit for the aggregate 18 months prison sentence off the 36-month cap, resulting in a maximum of 18 months of supervised release. The Court agreed, noting the interpretations of the applicable statutes, 18 U.S.C. §§3583(e)(3) & (h), by other Circuits.
The Court rejected the government’s argument, first raised in this appeal, that the statutory supervised release maximum was greater than three years, because the drug trafficking offense of conviction carried a statutory maximum greater than the three years provided in the supervised release statute. The Court noted that Mazarky’s guilty plea was based on a three-year maximum for supervised release, and "in order to preserve notice to the defendant" it declined to consider this new argument.
Tuesday, September 11, 2007
Maturin: 15-year old conviction counts as aggravated felony
In U.S. v. Maturin, No. 07-10481 (Sept. 11, 2007), the Court held that a more than 15-year old conviction for drug trafficking qualified as an "aggravated felony" and therefore subjected Maturin to a 17-month sentence enhancement for his conviction for illegally reentering the United States after deportation.
The Court held that the plain meaning of the statutory phrase that limited convictions more than 15 years old from qualifying as aggravated felonies referred only to foreign, not domestic, convictions. The Court rejected Maturin’s contrary interpretation.
The Court held that the plain meaning of the statutory phrase that limited convictions more than 15 years old from qualifying as aggravated felonies referred only to foreign, not domestic, convictions. The Court rejected Maturin’s contrary interpretation.
Wednesday, September 05, 2007
Fleet: Federal Forfeiture Preempts Florida Homestead
In U.S. v. Fleet, No. 06-12454 (Sept. 5, 2007), the Court held that the provision of the federal criminal forfeiture statute, 21 U.S.C. § 853(p), which authorizes the forfeiture of a criminal defendant’s substitute property in the event moneys traceable to the crime cannot be located or have been transferred to a third-party, preempts Florida’s homestead exemption and property law governing tenancies by the entireties.
The Court recognized that unlike the general provision governing criminal forfeiture, which expressly preempts State law, the provision governing substitute property did not contain an express preemption provision. The Court noted, however, that the Supreme Court has stated that the inclusio unius est exclusio alterius logic does not apply to express/implied preemptions. The Court therefore turned to words of the forfeiture statute, which broadly authorized the courts to forfeit "any" substitute property. Further, the Court noted that its interpretation was consistent with the remedial purpose of forfeiture, which is to enforce the old adage that crime does not pay.
The Court recognized that unlike the general provision governing criminal forfeiture, which expressly preempts State law, the provision governing substitute property did not contain an express preemption provision. The Court noted, however, that the Supreme Court has stated that the inclusio unius est exclusio alterius logic does not apply to express/implied preemptions. The Court therefore turned to words of the forfeiture statute, which broadly authorized the courts to forfeit "any" substitute property. Further, the Court noted that its interpretation was consistent with the remedial purpose of forfeiture, which is to enforce the old adage that crime does not pay.
Friday, August 31, 2007
Dorsey: Failure to file 5K1.1 for going to trial can be vindictive
In U.S. v. Dorsey, No. 06-16698 (Aug. 31, 2007), the Court vacated a sentence based on the defendant’s claim that the government vindictively refused to file a USSG § 5K1.1 motion for reduction of sentence because he went to trial.
After his arrest, Dorsey provided information to law enforcement which immediately led to the arrest of a cocaine-trafficking accomplice. The government then promised him a 5K1.1 departure if he pled guilty. Dorsey elected to go to trial. He was convicted. The government then declined to move for a 5K1.1 departure, claiming that the assistance was "minimal" and that Dorsey started dealing drugs again.
The Court held that a vindictive refusal by the government to move for a 5K1.1 reduction based on a defendant’s exercise of his right to jury trial could be an unconstitutional motive. However, the defendant bears the burden of proving prosecutorial vindictiveness. In some cases, a defendant may rely on a presumption of vindictiveness, which can then be rebutted. In this case, the government had rebutted the presumption, by claiming that the assistance was minimal, and that Dorsey started dealing drugs again, thus proffering legitimate reasons for its failure to file a 5K1.1 motion.
Dorsey therefore had to establish actual vindictiveness. This would require more than showing that the government carried out a threat not to move for a 5K1.1 unless the defendant pled guilty. Because the record was not clear why the government failed to move for a § 5K1.1, the Court remanded the case to the district court for fact-finding at a new sentencing hearing.
After his arrest, Dorsey provided information to law enforcement which immediately led to the arrest of a cocaine-trafficking accomplice. The government then promised him a 5K1.1 departure if he pled guilty. Dorsey elected to go to trial. He was convicted. The government then declined to move for a 5K1.1 departure, claiming that the assistance was "minimal" and that Dorsey started dealing drugs again.
The Court held that a vindictive refusal by the government to move for a 5K1.1 reduction based on a defendant’s exercise of his right to jury trial could be an unconstitutional motive. However, the defendant bears the burden of proving prosecutorial vindictiveness. In some cases, a defendant may rely on a presumption of vindictiveness, which can then be rebutted. In this case, the government had rebutted the presumption, by claiming that the assistance was minimal, and that Dorsey started dealing drugs again, thus proffering legitimate reasons for its failure to file a 5K1.1 motion.
Dorsey therefore had to establish actual vindictiveness. This would require more than showing that the government carried out a threat not to move for a 5K1.1 unless the defendant pled guilty. Because the record was not clear why the government failed to move for a § 5K1.1, the Court remanded the case to the district court for fact-finding at a new sentencing hearing.
Agbai: Cookie-cutter sentence ok
In U.S. v. Agbai, No. 06-15691 (Aug. 31, 2007), the Court affirmed the imposition of a 41-month sentence on a defendant convicted of use of a counterfeit device in connection with credit card fraud.
The Court rejected the argument that the district court erred when it treated the guidelines as "presumptively reasonable." Noting that Rita v. U.S., 127 S.Ct. 2456 (2007) stated that when a judge decides to follow the Guidelines in a particular case, and when the defendant does not argue that this Guideline is unsound generally, a lengthy explanation is not required.
The Court also rejected the argument that the 41-month sentence was unreasonable, noting the district court’s finding that Agbai’s offense presented a "cookie-cutter case."
The Court rejected the argument that the district court erred when it treated the guidelines as "presumptively reasonable." Noting that Rita v. U.S., 127 S.Ct. 2456 (2007) stated that when a judge decides to follow the Guidelines in a particular case, and when the defendant does not argue that this Guideline is unsound generally, a lengthy explanation is not required.
The Court also rejected the argument that the 41-month sentence was unreasonable, noting the district court’s finding that Agbai’s offense presented a "cookie-cutter case."
Wednesday, August 29, 2007
Taber: Use of Minor Enhancement
In U.S. v. Taber, No. 07-10973 (Aug. 29, 2007), the Court affirmed the imposition of a two-level sentence enhancement under USSG § 3B1.4 for use of a minor in the commission his theft of firearms.
USSG § 3B1.4 provides for a sentence enhancement if the defendant used a person less than 18 years old to commit the offense. The Court recognized that in this case the minor devised the crime, and invited Tabor to participate in the theft of firearms. Nonetheless, it rejected the argument that the § 3B1.4 enhancement should not apply. The Court found that Taber took affirmative acts to involve the minor, by encouraging and helping the minor steal the firearms. These subsequent affirmative acts warranted the § 3B1.4 enhancement.
USSG § 3B1.4 provides for a sentence enhancement if the defendant used a person less than 18 years old to commit the offense. The Court recognized that in this case the minor devised the crime, and invited Tabor to participate in the theft of firearms. Nonetheless, it rejected the argument that the § 3B1.4 enhancement should not apply. The Court found that Taber took affirmative acts to involve the minor, by encouraging and helping the minor steal the firearms. These subsequent affirmative acts warranted the § 3B1.4 enhancement.
Monday, August 27, 2007
Gordon: No ineffectiveness in failing to object to non-allocution
In Gordon v. U.S., No. 05-16703 (Aug. 23, 2007), the Court denied habeas relief to a federal inmate who claimed that his counsel was ineffective for failing to object to the district court’s failure to inform him of the charges to which he was pleading, and failure to address the defendant personally regarding his right to allocute.
The Court assumed that the district court erred when it did not advise Gordon of the charges to which he was pleading, but denied relief because this error did not affect Gordon’s substantial rights. The record showed that both defense counsel and the prosecutor had explained the charges to Gordon.
Because defense counsel might reasonably have decided, for strategic reasons, not to object to the absence of inquiry about Gordon’s right to allocute – because Gordon would have seemed even "less honest" if he had addressed the court – the Court found no ineffectiveness here as well.
The Court assumed that the district court erred when it did not advise Gordon of the charges to which he was pleading, but denied relief because this error did not affect Gordon’s substantial rights. The record showed that both defense counsel and the prosecutor had explained the charges to Gordon.
Because defense counsel might reasonably have decided, for strategic reasons, not to object to the absence of inquiry about Gordon’s right to allocute – because Gordon would have seemed even "less honest" if he had addressed the court – the Court found no ineffectiveness here as well.
Thursday, August 23, 2007
Jones: No Unequivocal Request to Proceed Pro Se
In Jones v. Walker, No. 04-13562 (Aug. 27, 2007), the Court granted habeas relief to a Georgia state inmate on the ground that the state erroneously deprived him of the right to counsel in circumstances where the defendant, though unhappy with his trial counsel, had not unequivocally assert a desire to waive counsel and to represent himself, yet was ordered to proceed pro se. The Court found that the state courts erroneously found that trial counsel had advised the defendant of the "dangers" of self-representation, when in fact she had not. The Court further found that the defendant’s complaints about the incompetence of his court-appointed lawyer did not amount to a clear and unequivocal request to proceed pro se. The Count noted that the legal standard governing this issue is now before it en banc in U.S. v. Garey.
Monday, August 13, 2007
Mattern: Habeas Claim not Moot re: prior conviction
In Mattern v. Sec. Dep’t of Corrections, No. 05-15161 (Aug. 7, 2007), the Court reversed the denial of a habeas petition by a state inmate.
After being convicted for aggravated battery, and being sentenced to probation, Mattern’s probation was revoked. At his probation revocation hearing he argued, correctly, that his prior conviction should have been for simple battery, not aggravated battery. This argument failed, and, after exhausting his state post-conviction remedies, he brought this claim in a federal habeas proceeding. By then, he had been released from incarceration – but arrested on another battery charge, for which the prior aggravating battery conviction would increase his potential sentence. The district court dismissed the petition on mootness grounds.
Reversing, the Court noted that because Mattern had been arrested at the time he brought his federal habeas claim, and the prior conviction was used to enhance his punishment for this latest crime, his challenge to this conviction was not moot.
The Court noted the remaining question of whether Mattern had exercised due diligence in timely asserting his challenge to the prior aggravated battery conviction, and remanded the case for an evidentiary hearing on this issue.
After being convicted for aggravated battery, and being sentenced to probation, Mattern’s probation was revoked. At his probation revocation hearing he argued, correctly, that his prior conviction should have been for simple battery, not aggravated battery. This argument failed, and, after exhausting his state post-conviction remedies, he brought this claim in a federal habeas proceeding. By then, he had been released from incarceration – but arrested on another battery charge, for which the prior aggravating battery conviction would increase his potential sentence. The district court dismissed the petition on mootness grounds.
Reversing, the Court noted that because Mattern had been arrested at the time he brought his federal habeas claim, and the prior conviction was used to enhance his punishment for this latest crime, his challenge to this conviction was not moot.
The Court noted the remaining question of whether Mattern had exercised due diligence in timely asserting his challenge to the prior aggravated battery conviction, and remanded the case for an evidentiary hearing on this issue.
Gaskin: Death row inmate habeas denied
In Gaskin v. Sec. Dep’t Corrections, No. 06-12351 (Aug. 3, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the claim that defense counsel was ineffective for failing to present mitigation evidence. The Court found that defense counsel made a defensible strategic decision in view of the damaging evidence that would have come out had the defendant’s personal history become an issue.
The Court also rejected Gaskin’s challenge to the failure to grant his change of venue motion, based on pretrial publicity. The Court found that he failed to show the kind of saturated publicity that would allow the Court to presume prejudice.
The Court rejected the claim that defense counsel was ineffective for failing to present mitigation evidence. The Court found that defense counsel made a defensible strategic decision in view of the damaging evidence that would have come out had the defendant’s personal history become an issue.
The Court also rejected Gaskin’s challenge to the failure to grant his change of venue motion, based on pretrial publicity. The Court found that he failed to show the kind of saturated publicity that would allow the Court to presume prejudice.
Vance: Enhancements for Unlawful Travel for Sex with Minor
In U.S. v. Vance, No. 06-13035 (Aug. 3, 2007), the Court affirmed the conviction and sentence of a defendant for attempting to travel in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor.
The Court found no plain error in the district court’s exclusion, on hearsay grounds, of a defense witness’ statement that the defendant claimed would have been a "prior consistent statement," admissible to counter the government’s claim of recent fabrication. The Court noted defense counsel’s failure to proffer any basis for the statement’s admission at trial, and the district court’s judgment that the statement might have been part of the fabrication.
The Court also affirmed a sentence enhancement for unduly influencing a minor, despite the fact that the only person with whom the defendant communicated was an undercover police officer, not a minor. The Court held that by employing the undercover officer as an intermediary to effectuate his influence, he unduly influenced a minor. The focus is on the defendant’s state of mind, regardless of whether the victim is fictitious.
The Court also affirmed the imposition of an enhancement for use of a computer, rejecting the defendant’s argument that the officer, not him, did the "soliciting." The Court noted that the defendant used a computer to communicate with someone he believed had custody of a minor.
The Court found no plain error in the district court’s exclusion, on hearsay grounds, of a defense witness’ statement that the defendant claimed would have been a "prior consistent statement," admissible to counter the government’s claim of recent fabrication. The Court noted defense counsel’s failure to proffer any basis for the statement’s admission at trial, and the district court’s judgment that the statement might have been part of the fabrication.
The Court also affirmed a sentence enhancement for unduly influencing a minor, despite the fact that the only person with whom the defendant communicated was an undercover police officer, not a minor. The Court held that by employing the undercover officer as an intermediary to effectuate his influence, he unduly influenced a minor. The focus is on the defendant’s state of mind, regardless of whether the victim is fictitious.
The Court also affirmed the imposition of an enhancement for use of a computer, rejecting the defendant’s argument that the officer, not him, did the "soliciting." The Court noted that the defendant used a computer to communicate with someone he believed had custody of a minor.
Ferreira: Habeas Petition Timely Filed after Resentencing
In Ferreira v. Sec. Dept. of Corrections, No. 04-15761 (Aug. 7, 2007), the Court held that Burton v. Stewart, __U.S. __, 127 S.Ct. 793 (2007) effectively overruled Rainey v. Sec’y for the Dep’t of Corr., 443 F.3d 1323 (11th Cir. 2006), and therefore, on remand from the United States Supreme Court, it reinstated as timely Ferreira’s federal habeas petition.
Ferreira filed a federal habeas petition within the one-year statute of limitations after he had been resentenced on a state conviction, but after the expiration of the limitations period after the original judgment of conviction. The Court noted that the Supreme Court in Burton made clear that the limitations provisions of AEDPA are focused on the judgment which holds the petitioner in confinement. Therefore, the statute of limitations period begins to run from the date both the conviction and the sentence the petitioner is serving become final. Hence, Ferreira’s federal habeas petition was timely, because filed within the limitations period that followed his resentencing.
Ferreira filed a federal habeas petition within the one-year statute of limitations after he had been resentenced on a state conviction, but after the expiration of the limitations period after the original judgment of conviction. The Court noted that the Supreme Court in Burton made clear that the limitations provisions of AEDPA are focused on the judgment which holds the petitioner in confinement. Therefore, the statute of limitations period begins to run from the date both the conviction and the sentence the petitioner is serving become final. Hence, Ferreira’s federal habeas petition was timely, because filed within the limitations period that followed his resentencing.
Haun: False Coast Guard Distress Call
In U.S. v. Haun, No. 06-14556 (Aug. 6, 2007), the Court affirmed a conviction for causing the Coast Guard to attempt to save his life, when no help was needed, in violation of 14 U.S.C. § 88(c). The defendant allegedly faked his disappearance while out on a boating trip off of Panama City, Florida. A Coast Guard search for him ensued.
Haun claimed that he did not violate the statute, because a state agency, not Haun himself, nor even the persons on the boat from which he disappeared, placed the distress call to the Coast Guard. Citing the legislative history of the statute, the Court noted that Congress meant to punish not just those who send a false distress message, but also those who, indirectly, by their conduct, cause the Coast Guard to attempt to save life when no help is needed. Here, Haun’s actions were done intentionally, with a bad purpose. He faked his disappearance to avoid a court date, and knew that his disappearance would be reported to authorities.
Haun claimed that he did not violate the statute, because a state agency, not Haun himself, nor even the persons on the boat from which he disappeared, placed the distress call to the Coast Guard. Citing the legislative history of the statute, the Court noted that Congress meant to punish not just those who send a false distress message, but also those who, indirectly, by their conduct, cause the Coast Guard to attempt to save life when no help is needed. Here, Haun’s actions were done intentionally, with a bad purpose. He faked his disappearance to avoid a court date, and knew that his disappearance would be reported to authorities.
Friday, July 27, 2007
Lopez-Vanegas: Drug Trafficking Outside US not Crime in US
In U.S. v. Lopez-Vanegas, No. 05-15021 (July 26, 2007), the Court reversed drug trafficking convictions, finding that mere discussions within the United States related to trafficking controlled substances outside the United States was not a crime.
The Court recognized that in prior cases, courts have given extraterritorial application to 21 U.S.C. § 841 & 846, the drug trafficking offenses. However, in those cases "defendants either possessed or conspired to possess drug substances within the United States, or intended to distribute controlled substances within the United States." Here, the evidence only showed an intent to possess outside the United States, and to distribute outside the United States. Congress showed no intent to criminalize this conduct. Accordingly, the Court vacated the convictions.
The Court recognized that in prior cases, courts have given extraterritorial application to 21 U.S.C. § 841 & 846, the drug trafficking offenses. However, in those cases "defendants either possessed or conspired to possess drug substances within the United States, or intended to distribute controlled substances within the United States." Here, the evidence only showed an intent to possess outside the United States, and to distribute outside the United States. Congress showed no intent to criminalize this conduct. Accordingly, the Court vacated the convictions.
Tampas: YMCA Embezzlement Fraud Conviction Affirmed
In U.S. v. Tampas, No. 06-12051 (July 26, 2007), the Court reversed the restitution order but affirmed the convictions of a defendant convicted of defrauding the Valdosta-Lowndes County, Georgia, YMCA – of which he was President and Executive Director. The scheme involved using YMCA moneys to pay for extensive renovations at Tampas’ home.
The Court rejected a sufficiency of the evidence challenge to the convictions, pointing to the handwritten time slips the contractor used in lieu of invoices. The Court also noted that the YMCA Board did not approve the use of the YMCA American Express for Tampas’ personal expenses. The Court also affirmed the conviction for misleading conduct in violation of 18 U.S.C. § 1512(b), pointing out that Tampas asked an employee to prepare fraudulent spreadsheets to hide the fraudulent work.
The Court rejected Tampas’ indictment "constructive amendment" argument. Tampas claimed that he was convicted for much smaller dollar amounts than those listed in the indictment. The jury instructions did not change the elements of the offenses charged in the indictment, and did not have to specify the exact amounts involved.
The Court also rejected Tampas challenge to the admission, as unduly prejudicial, of evidence that the YMCA had a large amount of unpaid taxes. The Court noted that this evidence was not admitted to prove Tampas’ culpability, and that, in any event, he was aware of the failure to remit taxes.
The Court also rejected challenges to improper prosecutor statements, finding them to have been cured by the court’s instructions. The Court also rejected a challenge to the trial court’s statement "Why can’t the defendant testify about that?," noting that the court offered a curative instruction and that this question had no effect on the jury.
Turning to the sentence, the Court affirmed the obstruction of justice enhancement based on the creation of misleading spreadsheets. The Court also found no error in the loss amount computation in view the district court’s stated intent to impose its sentence under § 3553(a).
For restitution, however, the Court reversed the order which required Tampas to pay YMCA the amount of its unpaid payroll taxes. The Court noted that the government never proved that Tampas’ embezzlement caused the YMCA to fail to pay payroll taxes. The Court noted Tampas preference that the case not be remanded to the district court for resentencing, so that the government could prove other losses to the YMCA, but rejected this request, noting his failure to cite caselaw supporting his "no two bites at the apple" sentencing argument.
The Court rejected a sufficiency of the evidence challenge to the convictions, pointing to the handwritten time slips the contractor used in lieu of invoices. The Court also noted that the YMCA Board did not approve the use of the YMCA American Express for Tampas’ personal expenses. The Court also affirmed the conviction for misleading conduct in violation of 18 U.S.C. § 1512(b), pointing out that Tampas asked an employee to prepare fraudulent spreadsheets to hide the fraudulent work.
The Court rejected Tampas’ indictment "constructive amendment" argument. Tampas claimed that he was convicted for much smaller dollar amounts than those listed in the indictment. The jury instructions did not change the elements of the offenses charged in the indictment, and did not have to specify the exact amounts involved.
The Court also rejected Tampas challenge to the admission, as unduly prejudicial, of evidence that the YMCA had a large amount of unpaid taxes. The Court noted that this evidence was not admitted to prove Tampas’ culpability, and that, in any event, he was aware of the failure to remit taxes.
The Court also rejected challenges to improper prosecutor statements, finding them to have been cured by the court’s instructions. The Court also rejected a challenge to the trial court’s statement "Why can’t the defendant testify about that?," noting that the court offered a curative instruction and that this question had no effect on the jury.
Turning to the sentence, the Court affirmed the obstruction of justice enhancement based on the creation of misleading spreadsheets. The Court also found no error in the loss amount computation in view the district court’s stated intent to impose its sentence under § 3553(a).
For restitution, however, the Court reversed the order which required Tampas to pay YMCA the amount of its unpaid payroll taxes. The Court noted that the government never proved that Tampas’ embezzlement caused the YMCA to fail to pay payroll taxes. The Court noted Tampas preference that the case not be remanded to the district court for resentencing, so that the government could prove other losses to the YMCA, but rejected this request, noting his failure to cite caselaw supporting his "no two bites at the apple" sentencing argument.
Robertson: Lawsuit Settlement not part of Restitution Owed
In U.S. v. Roberston, No. 06-13267 (July 27, 2007), the Court affirmed fraud convictions but reversed a portion of the restitution order.
The defendant purchased software from Novell, a software manufacturer, at discount prices, fraudulently claiming to be an education institution. He then resold the software to a Novell distributor, Network Systems, who itself was not authorized to purchase software from another firm than Novell.
The Court rejected Robertson’s challenge to the sufficiency of the evidence, pointing to the circumstantial evidence of fax transmissions.
The Court also affirmed the imposition of a sentence enhancement based on the use of "sophisticated means." The Court pointed to Robertson use of fictional entities to take advantage of discounted prices.
The Court also affirmed a restitution calculation, for payment to Novell, based on the wholesale prices of all the software Robertson purchased, minus the amount Novell obtained in a settlement of a lawsuit against Network Systems arising out of Network Systems’ sales of Robertson-supplied software. The Court noted that Robertson received a benefit when wholesale, not retail, prices were used. The Court also rejected as "baseless" the argument that the software was "unique," not "fungible" goods, for which replacement cost might be the right measure.
The Court, however, agreed with Robertson that he should not have been ordered to pay $125,000 in restitution to Network Systems. This amount represented the amount Network Systems paid Novell to settle a lawsuit brought by Novell against Network Systems for Network Systems’ unauthorized sales of Robertson-bought software. The Court found that too little was known about the nature of the lawsuit for this settlement to be deemed "reasonably foreseeable" to Robertson and thus owed in restitution.
The defendant purchased software from Novell, a software manufacturer, at discount prices, fraudulently claiming to be an education institution. He then resold the software to a Novell distributor, Network Systems, who itself was not authorized to purchase software from another firm than Novell.
The Court rejected Robertson’s challenge to the sufficiency of the evidence, pointing to the circumstantial evidence of fax transmissions.
The Court also affirmed the imposition of a sentence enhancement based on the use of "sophisticated means." The Court pointed to Robertson use of fictional entities to take advantage of discounted prices.
The Court also affirmed a restitution calculation, for payment to Novell, based on the wholesale prices of all the software Robertson purchased, minus the amount Novell obtained in a settlement of a lawsuit against Network Systems arising out of Network Systems’ sales of Robertson-supplied software. The Court noted that Robertson received a benefit when wholesale, not retail, prices were used. The Court also rejected as "baseless" the argument that the software was "unique," not "fungible" goods, for which replacement cost might be the right measure.
The Court, however, agreed with Robertson that he should not have been ordered to pay $125,000 in restitution to Network Systems. This amount represented the amount Network Systems paid Novell to settle a lawsuit brought by Novell against Network Systems for Network Systems’ unauthorized sales of Robertson-bought software. The Court found that too little was known about the nature of the lawsuit for this settlement to be deemed "reasonably foreseeable" to Robertson and thus owed in restitution.
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