Pugh: Five Years Probation Unreasonable for Child Pornography Possessor

In U.S. v. Pugh, No. 07-10183 (Jan. 31, 2008), in its first sentencing decision applying the Supreme Court’s recent Gall and Kimbrough holdings, the Court held that the district abused its discretionary by imposing a probationary sentence on a defendant convicted of possession of images of child pornography.
Despite a low-end recommended guideline range of 97 months, and supervised release, the district court sentenced Pugh to five years probation. The district court held two sentencing hearings, and concluded that Pugh had a low-risk of recidivism.
The Court faulted the sentencing court for relying on only one § 3553(a) sentencing factor – the history and characteristics of the defendant -- which suggested an unreasonable sentence because of the failure to consider "all" of the § 3553(a) factors. The Court faulted the sentencing court for not giving due emphasis to the fact that the some of the images were "grotesque," and for focusing on the defendant’s motivation, when his willfulness in committing the offense was undisputed.
Turning to the § 3553(a) factors, the Court found that the sentencing court had no adequately considered the "general deterrence," purpose of § 3553(a) – a factor particularly important in combating "the child pornography market." The Court also noted the "devastating" impact of child pornography on the children, and pointed out how Congress has progressively stiffened the penalties for child pornography. The district court’s sentence, therefore, "did not reflect the seriousness of the crime." The Court noted that the defendant himself was willing to submit to a lifetime of supervised release, a much greater period of supervision than five years of probation. This called into question whether adequate rehabilitation could be achieved.
The Court also noted that the sentence deviated sharply from the Guidelines sentence of 97 months at the low-end. This "major" departure was not supported by the sentencing court’s mere reliance on Pugh’s characteristics and motive. In addition, unlike the crack guidelines at issue in Kimbrough, the child pornography guidelines did not suffer from "criticisms." The Court also noted that its caselaw showed that offenders like Pugh typically receive much harsher sentences. Thus Pugh’s sentence created a disparity. The Court recognized that there might be cases where a non-custodial sentence would be reasonable for a child pornography offender, but this was not one of them.

Al-Arian: Promise not to Subpoena Must be Explicit in Plea Agreement

In U.S. v. Al-Arian, No. 06-16008 (Jan. 25, 2008), the Court held that when a plea agreement contains no agreement providing that a defendant is immune from a future grand jury subpoena, the plea agreement does not prevent the government from subpoenaing the defendant to testify before a grand jury.
The Court first addressed whether the appeal had become moot, because the district court judgment which had held Al-Arian in contempt for failure to comply with the subpoena, and pursuant to which he had been sentenced, had since been vacated. The Court noted that any time Al-Arian had served for the contempt would be credited toward the sentence he was serving on the guilty plea if the Court held that the district court erred by holding him in contempt. Hence the case was not moot.
The Court also held that it had subject matter jurisdiction. The Court held that a § 2255 motion can be used to enforce promises made in a plea agreement.
Al-Arian’s plea agreement contained no terms regarding whether he agreed to cooperate with the government in the future, or whether he could be required to do so. Al-Arian noted that the government agreed to omit the standard cooperation provision from the plea agreement, and argued that this removal of language in effect immunized him from having to give any future testimony. The Court rejected this argument. Looking only to the language of the plea agreement itself, which stated that no other promises were made other than those contained therein, the Court held that the plea agreement did not prevent the government from issuing a subpoena.

Masferrer: Bank CEO fraud conviction affirmed

In U.S. v. Masferrer, No. 06-14223 (Jan. 22, 2008), the Court affirmed the conviction and sentence of a bank CEO convicted of bank and securities fraud. The fraud arose out of Masferrer’s attempt to conceal bad bank investments in Russian assets.
The Court rejected the challenge to the technical violation of the recusal rules when the case was directly reassigned to another judge. The Court noted the failure to show any potential bias.
The Court also rejected the argument that evidence of the subsequent (higher) value of the assets – subsequent to the fraud – should have been admitted in Masferrer’s defense. The Court noted that the relevant time period was Masferrer’s belief and intent at the time of the fraud, not afterward.
Turning to sentencing, the Court rejected Masferrer’s challenge to the use of 2001 Guidelines, pointing out that these Guidelines predated the completion of the conspiracy and therefore presented no Ex Post Facto issue. The Court also rejected Masferrer’s challenge to the calculation of a loss between $20 and $40 million. The Court rejected the argument that $ 22 million should not have been included as a loss to the bank, because they represented Russian assets that were worthless before the fraud occurred, and the bank would have suffered that unrealized loss, and, in fact, did not do so as a result of his fraudulent conduct. "Masferrer may not have caused the Russian assets to decline in value, but his criminal activity did cause them to be sold when they were in fact worthless, and consequently, caused the $22 million to be realized by the bank."

Flint: Shelton Not Extended

In Flint v. Jordan, No. 06-11897 (Jan. 22, 2008), the Court held that a § 2255 petition was untimely, even though the prior state conviction which the defendant challenged had been obtained without the assistance of counsel. The Court noted that the Supreme Court’s decision in Alabama v. Shelton, 535 U.S. 654 (2002) held that a "suspended sentence" that may end up in the deprivation of a person’s liberty may not be imposed if the defendant does not receive the assistance of counsel. Here, Flint challenged a conviction which resulted in a sentence of probation, not one which resulted in a suspended sentence. Thus, Flint was asking for an "extension" of Shelton, not a direct application of it – and he could not therefore claim that Shelton was retroactively applicable, and avoid the AEDPA bar on his untimely § 2255 motion.

Johnson: State extension of time does not create federal equitable tolling

In Johnson v. Fla. Dep’t of Corrections, No. 07-12115 (Jan. 17, 2008), the Court held that a Florida death row’s federal habeas petition was untimely.
The state inmate claimed that there was a delay in the appointment of his post-conviction lawyer in Florida state court. The Court held that this was not an excuse for untimeliness because prisoners in capital cases have no constitutional right to post-conviction counsel. The Court also rejected the claim that the unavailability of requested documents was an impediment to the § 2254 proceeding. Finally, the court found the "equitable tolling" doctrine inapplicable, because, even though Johnson was granted an extension of time to file for state post-conviction relief, this did not affect the timeliness of his federal petition.

Dorsey: Failure to File 5K1.1 can be unconstitutional

In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government’s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court’s downward departure based on the defendant’s cooperation, independent of a government motion.
The Court stated that unconstitutional vindictiveness could be established either by showing facts that gave rise to a presumption of vindictiveness, or by offering evidence of a prosecutor’s actual vindictiveness. Here, the government stated that it did not file a 5K1.1 because Dorsey’s assistance was not substantial and because he started dealing drugs, again. This overcame the presumption of vindictiveness. On remand, therefore, Dorsey would have to show "actual" vindictiveness. This showing is "exceedingly difficult." Dorsey would have to present evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government were pretextual.

Brown: Letters to parole board don't toll AEDPA

In Brown v. Barrow, No. 06-11004 (Jan. 11, 2008), the Court held that a Georgia inmate’s federal habeas petition challenging a denial of parole was time-barred by AEDPA’s one-year statute of limitations, when it was filed seven years later. The Court rejected the argument that the inmate’s letters to the parole board tolled the limitations period. The Court noted that Georgia has long provided that the sole means to attack a denial of parole was to file a writ of mandamus in state court, and Brown did not do this sufficiently early to avoid the one-year time-bar.

Snipes: No interlocutory appeal of venue

In U.S. v. Snipes, No. 08-10114 (Jan. 8, 2008), the Court dismissed a defendant’s interlocutory appeal. The defendant sought to appeal, prior to trial, the venue in his case. The Court noted that an order pertaining to venue is effectively reviewable after entry of judgment, citing U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006). Venue claims are unlike cases involving the right not to be subjected to double jeopardy and similar rights which would be lost by going to trial.

Palma: Facts Did not Support "Innocent Transitory Possession" Defense

In U.S. v. Palma, No. 06-14884 (Jan. 4, 2008), the Court rejected the defendant’s claim that, at his trial for being a felon in possession of a firearm and ammunition, the district court should have instructed the jury that a "transitory or temporary innocent possession" would be a defense to the charge. Without addressing whether this defense was valid generally, the Court noted that in Palma’s case the evidence that he entered a gun shop (with his then-girlfriend) twice, picked up the firearm, referred to it as "my gun," and requested, purchased and carried away ammunition for the firearm, did not support an "innocent transitory possession" instruction.

McBride: No Clear Error in 84-month sentence for child pornography distributor

In U.S. v. McBride, No. 06-16544 (Dec. 28, 2007) (2-1) (Dubina, J., dissenting), on a government appeal, the Court affirmed an 84-month sentence – below the 151-188 months guideline range – and a ten-year term of supervised release – below the Guideline recommended life term – for a defendant convicted of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B).
The Court rejected the government’s claim that the sentence was substantively unreasonable. The Court noted that it would reverse a sentence only if left with the definite and firm conviction that a clear error occurred in weighing the § 3553(a) factors. The Court cited the length of the 84 month sentence, as well as the district court’s reliance on the defendant’s history of abuse as a child, as bases for affirming the sentence.

King: No Reasonable Expectation of Privacy in Shared Computer Files

In U.S. v. King, No. 07-11808 (Dec. 14, 2007), the Court rejected Fourth Amendment challenges to a computer search of a defendant convicted of possessing child pornography, and, ruling against the government’s sentencing appeal, affirmed the district court’s ruling that King’s contemporaneous conviction for transporting child pornography did not count as a "prior conviction" for the purpose of imposing a mandatory ten years’ sentence.
The defendant’s computer flies at an army base were "shared" over the entire base network, and everyone on the network had access to all his files and could observe them. Thus, the search of his computer was akin to a search of the entire network. The contents of his computer were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public, and King therefore had no reasonable expectation of privacy in them.
Turning to the sentencing issue, the Court noted that the child pornography statute provides for a ten-year mandatory minimum if the defendant has a "prior conviction under this chapter." King’s convictions for possessing and for transporting child pornography were entered at the same time. The Court concluded therefore that the transporting conviction did not qualify as a "prior" conviction – distinguishing Deal v. U.S..

Straub: No Subject Matter Jurisdiction needed for Criminal Contempt

In U.S. v. Straub, No. 06-14354 (Nov. 29, 2007), the Court affirmed the criminal contempt conviction of a defendant who violated a court order to not be present during the removal of property from specific premises.
The defendant claimed that the district court lacked jurisdiction to hold him in criminal contempt, because the court later determined that it lacked subject matter jurisdiction over the case. Rejecting this argument, the Court analogized criminal contempt to sanctions under Rule 11 of the Federal Rules of Civil Procedure – which can be imposed regardless of whether a court lacks subject matter jurisdiction. Willy v. Coastal Corp., 503 U.S. 131 (1992). The Court distinguished contrary dicta in its caselaw as "inapposite."
The Court also concluded that the order that Straub was charged with violating was "reasonably specific," and further rejected Straub’s claim that his conduct was not "willful."

Dohan: No Improper Vouching

In U.S. v. Dohan, No. 06-14320 (Nov. 28, 2007), the Court affirmed the conviction of a defendant charged with fraud and money-laundering.
Reviewing for "plain error," the Court rejected the argument that the government should have corrected a cooperating witness testimony that he was testifying of his own volition, when he was in fact still subject to supervised release. The Court noted that the issue involved the witness’ beliefs, and that the witness had been subject to vigorous cross-examination.
The Court also rejected the argument that the government improperly vouched for credibility of the witness’ credibility by suggesting that he had been "checked" by the prosecutor, and also by the judge earlier in reducing the witness’ sentence for giving substantial assistance. The Court found no error and no prejudice. The Court also found no error in the witness’ testimony that he was a "moral, Christian man."
Finally, the Court rejected the argument that the district court erred in giving a "specific intent" jury instruction, as provided in the Eleventh Circuit Model Jury Instructions, as being the mens rea of the laundering offense. The Court noted that its own caselaw no longer required specific intent, but mere knowing and voluntary participation in the conspiracy. The caselaw trumped the old Model Instruction.

Foley: Sentencing Court abdicated responsibility

In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.
The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes. The Court noted that forfeiture and loss are distinct, and require distinct calculations. Loss takes account of "relevant conduct." The sentencing court therefore "abdicated its responsibility" to make independent Guideline findings.
The Court also found that the district court erred, when calculating the number of victims, in relying on the number of persons who had responded to a probation office questionnaire. The Court noted that these responses did not "establish how many people sustained the loss."
The Court further found that the district court erred when it abdicated its responsibility to determine whether the defendant obstructed justice.
The Court noted that these cumulative errors were not harmless, since they resulted in a sentence 250 months below the bottom of the otherwise potentially applicable Guidelines range – a factor the district court must still consider.
The Court rejected all of Foley’s arguments on cross-appeal. The Court noted that the restitution statute now defined a "victim" more broadly than before, therefore making Foley liable to "any victim" of his fraud scheme. The Court rejected all of Foley’s remaining arguments as meritless.

Hurtado: Misuse of Identification Does not require theft

In U.S. v. Hurtado, No. 07-11138 (Nov. 21, 2007), the Court affirmed the conviction of a defendant convicted of unlawfully using another person’s identification, in violation of 18 U.S.C. § 1028A(a)(1).
The Court rejected the argument that the conviction should be vacated because proof that the defendant "stole" the identification of another, and proof that the defendant knew that the identification was of an "actual person," were elements of the offense, which the government failed to prove. The Court explained that the statute criminalizes use of identification "without lawful authority," and this definition encompasses situations other than theft of the identification. The Court further explained that knowledge of that there is an actual person is not an element of the offense, because this is not required to avoid convicting the defendant of non-culpable conduct.

Drury: Denial of rehearing not AEDPA limitations start point

In Drury v. U.S., No. 07-12130 (Nov. 13, 2007), the Court held that, for purposes of determining the starting point for AEDPA’s one-year statute of limitations for § 2255 claims, the period begins to run when the Supreme Court denies certiorari, not thereafter, when the Supreme Court denies a motion to rehear the denial of certiorari. The Court joined other circuits to have so held, and noted that under the Supreme Court rules, a motion to rehear the denial of certiorari does not suspend the order of denial.

Davis v. Jones: Appearance of Impartiality not required by due process

In Davis v. Jones, No. 06-15530 (Nov. 8, 2007), the Court denied habeas relief to an Alabama inmate who claimed that the fact that the State’s attorney was the brother of the Alabama judge who presided over certain pre-trial proceedings created an appearance of impartiality that violated Due Process.
The Court noted that, under Supreme Court caselaw, only actual bias, not the appearance of bias, rises to a Due Process violation. Although the federal recusal rules would have required recusal in these circumstances, Due Process did not so require. Hence, the Alabama proceedings did not violate Due Process.

Jackson: Physical evidence resulting from un-Mirandized statement

In U.S. v. Jackson, No. 06-15186 (Nov. 9, 2007), the Court affirmed the denial of a Miranda-based motion to suppress.
The defendant gave an un-Mirandized statement to police, as a result of which the police found a firearm and ammunition in his home. The statement itself was voluntary, and the defendant was not seeking to suppress the statement, but the fruit of the search based on the statement. Citing the narrowest grounds for the decision in United States v. Patane, 542 U.S. 630 (2004), the Court held that a Miranda violation that produces a voluntary statement does not entail suppression of the physical evidence found as a result of the un-Mirandized statement.

Mintmire: Lawyer Obstruction Conviction Upheld

In U.S. v. Mintmire, No. 06-11212 (Nov. 13, 2007), the Court affirmed the convictions of a Florida lawyer charged with attempting to obstruct a grand jury investigation into a stock sale.
The Court rejected a challenge to the sufficiency of the evidence. The Court found ample evidence that Mintmire had attempted to coach a witness to give false testimony before the grand jury.
The Court also rejected a challenge to the jury instructions, finding that the trial court properly instructed the jury on the affirmative defense that Mintmire was acting as a lawyer and giving bona fide legal representation at the time he committed the charged conduct.
Finally, the Court found no prejudicial spillover in the fact that Mintmire was prosecuted in a single trial for two separate obstruction counts.

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.