Mangaroo: Probation Plain Error for 924(c) sentence

In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies.
The Court noted that at the conclusion of sentencing, the government only made generalized objections, such as "the government objects to the sentence." This did not suffice to preserve for appeal the error in the sentences, namely the fact that the district court imposed sentences of probation when the statute for the offense of conviction, 18 U.S.C. § 924(c), expressly excludes probation as a sentencing option. However, because this error was plain from the language of the statute, the error constituted "plain error," and grounds, therefore, for vacating the sentences.
The Court pointed out that at the original sentencing, the district court did not cite any assistance-related factors to justify its downward departures. The Court agreed with the government that, at resentencing, the downward departures based on the defendants’ cooperation must be limited to the nature of the "substantial assistance" they provided.

Moore: Rule 29 Motion in VA theft

In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court’s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf

Robison: CWA Convictions Reversed

In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.
The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v. U.S., 126 S.Ct. 2208 (2006). Though recognizing some confusion in the law regarding Rapanos’ definition of "navigable waters," the Court held that it involved a "significant nexus" between the waters affected by a defendant’s pollution and waters that are in fact "navigable." The instruction failed to convey this concept, and this error was not harmless, because there was no evidence that the creek into which the defendants dumped pollutants caused harm to the river into which the creek flowed.
Turning to the false statement conviction, a specific intent crime, the Court noted that the statement in question merely certified that reports had been prepared under the person’s supervision. This representation was true, and it did not establish that the person making the statement knew that the reports were false, or vouched for the accuracy of the reports. Hence the evidence was insufficient to sustain the false statement conviction.

Brown: Union officials convictions upheld

In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members.
The Court rejected the argument that there was insufficient evidence to support the Taft-Hartley counts. The defendants argued that employees of a firm that made payments to them belonged to another union, and therefore could not be considered persons who might be "admitted to membership" in defendants’ firm, a requirement for Taft-Hartley liability. But the Court found that because these employees could have been solicited to join the defendants’ union despite this roadblock.
Declining to follow a Second Circuit precedent, the Court found that despite the infirmity of certain predicate acts of RICO conspiracy, the jury’s general verdict was valid, because the "continuity: element could be inferred from the 2 valid predicate acts which the jury found. This continuity was provided by the fraudulent vouchers for reimbursement that were submitted over a six year period.
The Court also sustained the RICO conspiracy conviction, finding that evidence of Brown’s concealment of his receipt of funds showed the agreement on the overall objective of the conspiracy.
The Court further sustained the conviction for depriving the union of "honest services." The Court found that the payments Brown received, payments he concealed from the union, supported this count of conviction.
The Court found that, even assuming the district court erroneously failed to instruct the jury that the existence of employees, not supervisors, in a firm from which the defendant receives prohibited payments, were one element the Taft-Hartley violations, the error was harmless – the jury would still have convicted.
The Court rejected the argument that Brown should have been granted a severance from his assistant. Brown claimed that, had they been tried separately, he would have called his assistant as an exculpatory witness. The Court found no "compelling prejudice" in the denial of the severance.
Turning to the assistant’s appeal, the Court rejected the argument that a RICO "enterprise" can also be the victim of the RICO offense. The "enterprise" need not be the instrument "through which" the violation occurs. It can be the victim.
The Court found "ample evidence" that the assistant was aware of the overall purpose of the conspiracy, noting her "extraordinary control" over the union books, and her ability to enrich herself.
The Court upheld a jury instruction which stated that a "lower level" participant in an enterprise could be held criminally responsible for a RICO offense, finding it in accord with Circuit precedent.
Finally, turning to sentencing, the Court upheld an order of forfeiture in excess of $500,000. The Court upheld finding the assistant jointly liable for the total amount of the loss. Though this amount was not reasonably foreseeable, it was valid. The Court declined to follow contrary holdings in other circuits, noting the "punitive" character of forfeiture. The Court again cited the punitive character of forfeitures in declining to credit the assistant for moneys that she had returned to the union. The Court also rejected the argument that the forfeiture was unconstitutionally excessive.http://www.ca11.uscourts.gov/opinions/ops/200511137.pdf

Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive

In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There’s no need of sending any notes that you can’t agree, because you are going to stay here for a long time." Citing Jenkins v. United States, 380 U.S. 445 (1965), the Court held that the instructions were "impermissibly coercive."
The Court noted that there was sufficient evidence to convict, and therefore remanded the case for a new trial.

Delancy: Consensual search not fruit of poisonous tree

In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant’s girlfriend’s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual.
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."

Khanani: "Proceeds" are not proceeds of the labor

In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court’s entry of a judgment of acquittal on the money laundering counts. The case arose out of the defendant’s employment of illegal aliens in their jeans retail stores.
The Court found no error in the district court’s refusal to instruct the jury that "mere employment" of illegal aliens would not suffice to establish guilt of harboring illegal aliens. The Court found that the instructions that were given were already adequate to describe the offense, and that no further instruction was required.
The Court also rejected the argument that the search of the computers at the defendants businesses violated the Fourth Amendment. The Court noted that while the search warrant affidavit did not indicate that computer-generated forms were involved, a "common sense" interpretation of the affidavit gave rise to this inference.
The Court also found no abuse of discretion in denying a motion for a mistrial based on a juror’s statement that a person resembling the defendant had "locked eyes" with her and felt a "presence of danger." The Court noted that the district court investigated the matter and found no prejudice to the defendant.
The Court held that it was not error to admit, on the government’s cross-examination, a co-defendant’s testimony that the defendant's involvement in the offense "would not surprise him" . The Court noted that this question was relevant in light of the co-defendant’s direct testimony, and was not given for the truth of the matter but for impeachment purposes. Further, counsel had not sought an instruction limiting the statement to being admissible for impeachment purposes, in accordance with FRE 105, and thus waived this issue.
Finally, the Court, ruling against the government’s appeal, rejected the argument that, for purposes of determining whether "proceeds" of specified unlawful activity were laundered, the cost savings to the defendants from using illegal aliens in their retail jean sales could be considered "proceeds." The Court stated that it is "decidedly unnatural to say that the moneys one has received from the sale of a good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor used to produce the goods."
http://www.ca11.uscourts.gov/opinions/ops/200511689.pdf

Ramirez: Second 851 Notice Unnecessary

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."

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.