Faris: Proposed Guideline Amendment does not affect binding Circuit precedent

In U.S. v. Faris, No. 08-16336 (Sept. 23, 2009), the Court upheld the conviction and sentence of a defendant convicted of possession of child pornography, and enticing a minor to engage in sexual activity.
The Court rejected Faris’ argument that his prosecution violated the Commerce Clause. The Court pointed out that Faris used the internet, and the internet is an instrumentality of interstate commerce.
The Court also rejected Faris’ argument that the Necessary and Proper Clause did not confer authority to prosecute him. The Court noted that Congress has "substantial leeway" in how to regulate purely intrastate activity that it deems can, in the aggregate, frustrate the broader regulation of interstate economic activity.
Turning to sentencing, the Court rejected Faris’ argument that his sentence should not have been enhanced for having "influenced" a "minor," because the "minor" in his case was a law enforcement officer. The Court recognized that the applicable Guideline is scheduled to be amended on November 1, 2009, to provide that the enhancement does not apply in a case where the only minor is a law enforcement officer. However, the precedent of the Eleventh Circuit, which is contrary to this amendment, remains binding, and the Guideline amendment has no force until adopted.

Rhode: No ineffective investigation of mitigation

In Rhode v. Hall, No. 08-16960 (Sept. 17, 2009), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders.
The Court rejected all of Rhode’s ineffective assistance of counsel claims. The Court found that counsel adequately investigated mitigation evidence, having, inter alia, traveled out of state to interview ten possible mitigation witnesses.
The Court also rejected a challenge to the presentation of mitigation evidence, pointing out that defense counsel called nine witnesses during the penalty phase. Counsel could not be faulted for not calling witnesses that counsel viewed as cumulative, or for presenting evidence that the jury might have viewed as aggravating, not mitigating.
The Court distinguished cases where counsel had failed to investigate voluminous mitigating evidence, or failed to examine the files that the prosecutor had warned would be used at trial.

Segarra: 924(c) means consecutive sentences in all cases

In U.S. v. Segarra, No. 08-17181 (Sept. 15, 2009), the Court, joining the majority of Circuits to have addressed this question of statutory interpretation, held that 18 U.S.C. § 924(c) mandates a consecutive sentence for firearm possession offense in furtherance of a drug trafficking crime, even when the statutory mandatory minimum for the drug trafficking crime exceeds the mandatory minimum for the firearms offense. The Court rejected the Second Circuit’s contrary reading of the statute.
Given the Court’s interpretation of § 924(c), Segarra’s waiver of his right of appeal did not give him any basis to appeal his sentence. The Court therefore dismissed his appeal.

Jordan: Rejecting Government Cross-Appeal of Probation Sentence

In U.S. v. Jordan, No. 06-12563 (Sept. 11, 2009), the Court affirmed convictions and sentences arising out of an Alabama Sheriff’s unlawful use of the National Crime Information Center database to obtain the criminal records of those who voted in a Sheriff’s reelection race (which the Sheriff lost).
The Court rejected the argument that the indictment did not give the defendant adequate notice of the charges. The Court rejected the argument that the indictment failed to allege a crime, pointing out that it alleged that the NCIC was used for non-law enforcement purposes, in violation of 18 U.S.C. § 641.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Jordan, as a lawyer acting for Sheriff Woodward, obtained NCIC printouts, and used some of the information they disclosed.
The Court found no error in the district court’s refusal to give a "good faith" defense jury instruction, pointing that the trial court’s instruction regarding the meaning of "knowingly" and "willfully" adequately addressed the good faith defense concept. The Court also found no error in refusing the give the defendant’s "confused" instruction regarding the attorney-client privilege.
The Court also rejected the government’s cross-appeal of the sentences of six month probation. The government argued that the sentencing court erred because it "did not deem the offense to be serious." The Court found that the sentencing court’s findings of fact were not clearly erroneous. Moreover, the sentencing court gave "appropriate consideration" to the § 3553(a) factors.

Garcia-Bercovich: Shrink wrapped boxes part of same package

In U.S. v. Garcia-Bercovich, No. 08-12061 (Sept. 10, 2009), the Court affirmed convictions for marijuana trafficking.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Garcia-Bercovich traveled across the United States to pick up packages for an individual he barely knew. He had previously been convicted of importation of marijuana. One could infer that Garcia-Bercovich deliberately avoided learning the contents of the items he picked up so as to have this defense in the event of prosecution. Lastly, the defendant’s attempt to flee was evidence of guilt.
The Court also found no Fourth Amendment violation in the search of the boxes in which marijuana was found. Marijuana was found by a private search in a single box which came shrink wrapped on a single pallet with other boxes. The other boxes were then opened by police without a warrant. The Court rejected the argument that the search of the other boxes required a warrant, finding that all the boxes were part of the same "package" because they were shrink wrapped together on the same pallet.

Johnson: State Probation does not Suspend Federal Supervised Release

In U.S. v. Johnson, No. 09-10351 (Sept. 2, 2009), the Court held that time spent serving a State sentence on probation, while under a federal sentence of supervised release, does toll the running of the period of supervised release. The fact that the State sentence of imprisonment was suspended so that Johnson could serve it on probation did not affect the tolling analysis. Hence, Johnson’s alleged violations of his conditions of federal supervised release, which occurred, when one excludes the time spent on probation on a State sentence, within the federal supervised release three-year term, could be the basis for revocation of supervised release. The Court therefore affirmed the district court’s revocation of Johnson’s supervised release, based on violations that occurred within the three-year period.

McIntosh: Second Indictment must be dismissed after guilty plea to first indictment

In U.S. v. McIntosh, No. 08-15549 (Aug. 27, 2009), the Court held that Double Jeopardy barred the government from indicting a defendant for a second time, after the defendant pled guilty to a first indictment charging the same offenses, but on different (erroneous) dates.
A first indictment charged drug and firearm offenses occurring in February 2007. The defendant pled guilty. However, prior to sentencing, the government informed the court that the date of the indictment was wrong: the offenses occurred in November 2005. The government obtained a second indictment, and moved to dismiss the first one.
The Court noted that, for Double Jeopardy purposes, jeopardy attaches when a court accepts a guilty plea. It is a conviction. Thus, here, jeopardy attached. The Court rejected the argument that the case was "exceptional," pointing out that one purpose of Double Jeopardy is to protect against "prosecutorial negligence." The Court disagreed with the district court that the dismissal of the first indictment, without prejudice, "effectively withdrew" the plea. The dismissal did not vacate the plea, or the conviction. Moreover, the defect in the indictment was not "fatal" and therefore did not justify a second indictment.
The Court also rejected the government’s argument that McIntosh had implicitly consented to the second indictment, pointing out that defense counsel had stated that he was not acquiescing in a second indictment.
The Court remanded the case with instructions to vacate the second indictment.

Gomez

In U.S. v. Gomez, No. 09-11031 (Aug. 28, 2009), the Court held that it was not harmless error for the trial judge to fail to instruct the jury – contrary to the Supreme Court’s recent holding in Flores-Figueroa v. U.S., 129 S.Ct. 1886 (2009) – that the government had to show that the defendant knew that the means of identification that was the subject of the identity theft charged under 18 U.S.C. §1028A(a)(1) "belonged to another person."
The Court noted defense argument that Gomez used a false identification document in order to get a job, to fulfill "the American dream," and not to "live off of somebody else . . . or steal." The Court noted that the evidence supported this defense; the jury could have found that the government failed to prove that Gomez knew that the identification documents belonged to another person. The error therefore was not harmless. The Court vacated the conviction and remanded for further proceedings.

Felts: No Plain Error in not instructing jury in the conjunctive

In U.S. v. Felts, No. 08-11450 (Aug. 21, 2009), the Court held that there was no plain error in a money laundering jury instruction.
The money laundering statute at issue made it unlawful to transport funds either to promote specified unlawful activity, or to conceal the nature of the proceeds of the specified unlawful activity. The jury instruction in Felts charged the violation of the statute in the conjunctive, that is, the jury was instructed in a single paragraph that either intent to promote or intent to conceal would be valid bases to convict. Felts argued that the jury should have been instructed that it had to agree as to which mental state existed.
Rejecting the argument, the Court noted that the distinction between the two mental states was "minimal." Thus, there was little, if any, risk of unfairness in not treating each mental state – intent to conceal vs. intent to promote – as a separate violation.

Maxwell: Convictions for MIA Contract Fraud Affirmed

In U.S. v. Maxwell, No. 07-11301 (Aug. 19, 2009), the Court affirmed convictions and sentences arising out of a fraudulent scheme to obtain construction contracts for work at Miami International Airport set aside for socially and economically disadvantaged companies.
The Court rejected the argument that the district court violated the Sixth Amendment when it limited defense cross-examination of a government witness. The Court found that the examination exposed facts that were more than sufficient to allow the defense to argue that the witnesses were biased. Further, the topic on which the defense sought to cross-examine a witness was "of no palpable impeachment value." In addition, certain questions "were beyond the scope" of direct examination.
The Court rejected challenges to the sufficiency of the evidence, finding "ample" evidence that Maxwell made material misrepresentations. The Court found that the jury could conclude that the supposed subcontractor performed no commercially useful function.
The Court found no error in refusing to give the jury instructions Maxwell proposed. These instructions would have addressed the ambiguity of the regulations at issue. The Court stated that the "good faith defense" given by the district court were sufficient to allow Maxwell to argue in closing argument that he did not have the requisite criminal intent.
Turning to sentencing, the Court rejected Maxwell’s challenge to the loss calculation. The Court found that the district court actually understated the amount of the loss, because it relied on the 6% profit on the government contracts, not the entire value of the diverted contracts of over $7 million. However, because the government did not cross-appeal this issue, the Court did not remand for resentencing.

Bonilla: Double Jeopardy Violation in Identity Theft Charges

In U.S. v. Bonilla, No. 08-112127 (Aug. 18, 2009), the Court – on plain error review after a guilty plea – reversed identify theft convictions, because the indictment was multiplicitous and violative of Double Jeopardy.
The defendant was convicted under both 18 U.S.C. § 1208(a)(7) and 1028(a)(1), which address access device fraud. The Court found that both of the statutes contain "identical" elements. "This is a clear example of one act violating two distinct statutory provisions and therefore violating the protection against double jeopardy."
Turning to the factual record at the defendant’s plea colloquy, the Court found that (without the need to depend on facts outside the record, which the guilty plea would have waived), the same factual information supported both charged offenses.
Bonilla’s time in prison, however, will remain the same. His sentence on the duplicative counts ran concurrent to sentence on the remaining counts.
The Court found no duplicativeness violative of Double Jeopardy in Bonilla’s conviction under § 1028A, because this statute authorized cumulative punishment, by providing for an additional two-year penalty in addition to any term of imprisonment for the underlying offense.
The Court rejected Bonilla’s challenge to the district court’s decision to impose consecutive sentences, noting that the district court has discretion to do so under the Guidelines, and here noted the seriousness of Bonilla’s crimes.

Kaley: Defendants entitled to hearing on seizure of assets pretrial

In U.S. v. Kaley, No. 07-13010 (Aug. 18, 2009), the Court held that the district court should have held an evidentiary hearing to determine whether to lift an injunction preventing the defendants from encumbering their home in order to raise money to pay for defense counsel. Citing U.S. v. Bissell, 866 F.2d 1343 (11th Cir. 1989), the Court held that the district court should have held a hearing to weigh the suffering of the defendants from the denial of counsel of choice against the government’s interest in recovering the assets seized.

Ponce: Georgia Commercial Vehicle Inspection Is Valid

In U.S. v. Ponce-Aldona, No. 08-13144 (Aug. 12, 2009), the Court rejected a Fourth Amendment challenge to a "safety checkpoint" stop of the defendant’s truck.
Georgia police set up a safety checkpoint at an exit to I-85 northbound, to pull over commercial vehicles for inspection. Officers spotted the defendant driving a truck who appeared to notice the officers and then bypassed the exit. The officers stopped and searched the truck and found cocaine. Ponce challenged the search under the Fourth Amendment.
The Court held that the search fell within the administrative search exception to the warrant requirement of the Fourth Amendment. The Court explained that an administrative inspection of a closely regulated business is a well-established exception to the warrant requirement for a search. The Court found that the Georgia inspection program adequately advised that searches would be made on a regular basis and were not merely discretionary. The regulations provided that Department of Motor Vehicle enforcement officers were authorized to stop and inspect commercial motor vehicles. Further, the discretion of the inspecting officers was adequately limited because only DMVS officers could inspect, and inspections are limited to public highways, searches are limited to the cargo area and documents of commercial vehicles. Further, time and place restrictions are not feasible because trucks could easily avoid fixed checkpoints. The Court noted that for this inspection, all commercial vehicles that passed by the checkpoint without stopping were more likely than not going to be pulled over and inspected.

Windom: Counsel not ineffective in death penalty phase

In Windom v. Sec. Dep’t of Corrections, No. 07-15876 (Aug. 10, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three murders in 1992.
The Court found that even assuming Windom’s counsel’s limited investigation into Wiondom’s background and mental health constituted deficient performance, Windom was not prejudiced thereby. The evidence of Windom’s background and mental health would not have affected the outcome, because of overwhelming evidence of premeditation, and the relative weakness of the conclusions of mental health experts.
The Court also rejected an ineffective challenge to counsel’s opening and closing arguments. Counsel argued for the existence of the statutory mitigating circumstances of extreme mental or emotional disturbance. Counsel’s candor about the crimes did not prejudice Windom, in light of the strength of the State’s case for death.

Bobb: No Double Jeopardy Violation on Receiving and Posssing Child Porn

In U.S. v. Bobb, No. 07-13252 (Aug. 6, 2009), the Court rejected a Double Jeopardy challenge to convictions for receiving and possessing child pornography.
The Court agreed with Bobb that in the abstract it could violate Double Jeopardy to prosecute a defendant for both "receiving" and "possessing" child pornography, because this would be multiple punishment for the same offense. The Court noted that it is impossible to receive a thing without also possessing it. The Court found no intent of Congress to punish the same conduct twice, under separate statutes.
However, Ball was charged with receiving child pornography on a separate date from the date on which he was charged with possessing additional child pornography. Thus, the indictment charged two separate and distinct offenses. Thus, the Double Jeopardy challenge ultimately fell short.

Philmore: Right to Counsel did not yet attach

In Philmore v. McNeil, No. 07-13637 (July 23, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1997 murder.
The Court rejected Philmore’s ineffective assistance of counsel claim. Philmore argued that his defense counsel in a bank robbery case was ineffective in allowingd him to speak to law enforcement. In his discussions, Philmore divulged information that incupalted him in a murder with which he had not (yet) been charged. The Court held that defense counsel in the bank robbery could not have been constitutionally deficient in the murder case, because Philmore had not been charged with murder, and no Sixth Amendment right had yet attached.
The Court also found no ineffectiveness in counsel’s failure to prevail on a Batson claim when a member of the jury panel was struck by the prosecution. The Court pointed out that counsel challenged the strike.
The Court found no ineffectiveness in failing to call an expert on Philmore’s mental impairment, as his testimony would have contradicted other defense experts.’
Finally, the Court noted that Philmore’s challenge to the state court’s failure to taking account of the mitigating evidence of mental disturbance was procedurally defaulted.

Carroll: Atkins does not compel post-conviction hearing

In Carroll v. Sec. DOC, No. 08-14317 (July 17, 2009), the Court found no constitutional violation in a Florida state court’s denial of an evidentiary hearing, in post-conviction hearings, to a death row inmate who claimed his mental retardation exempted him from the death penalty.
The Court found no support for Carroll’s argument that the Supreme Court’s decision in Atkins v. Virginia, prohibiting the execution of the mentally retarded, compelled Florida state courts to grant an evidentiary hearing in post-conviction proceedings, particularly where three prior proceedings had considered his claim of mental retardation.
The Court also rejected Carroll’s argument that Atkins must be extended to the mentally ill, not just the mentally retarded. This would be a new rule of constitutional law, which are not created on habeas review.

Dasher: A piece of foolish advice

In Dasher v. Witt, No. 08-10363 (11th Cir. July 13, 2009), the Court granted habeas relief based on ineffective assistance of counsel
Dasher decided to reject a plea offer to be sentenced to 13 months, and opted to plead guilty to cocaine trafficking charges "straight up," that is, without any agreement, based on his attorney’s advice that he doubted the sentence would exceed 13 months, and might be less. Once the judge learned of Dasher’s criminal history, he imposed a 10-year sentence.
The Court held that counsel was not ineffective in failing to investigate Dasher’s criminal history. The record supported an implicit finding that counsel asked Dasher about his prior criminal record. Moreover, failure to undertake an independent investigation was not constitutionally ineffective when counsel relied on information apparently in the hands of the prosecutor.
However, it was "a piece of foolishness" to advise Dasher that if he pled "straight up" he would receive little more than 12 months. Counsel was aware of other felonies to which Dasher was pleading guilty to, around the same time. Nor was the bad advice cured by the judge’s advice to Dasher that he had "total discretion" to sentence him up to 30 years, because Dasher would not have been worried this possibility, given counsel’s advice. "Whether or not he had a lengthy prior criminal record, Dasher was clearly risking a sentence of substantially more than thirteen months, and there was certainly no reason to believe he would do better.
Because Dasher had already served all but five months of his sentence, the court modified the State sentence to time-served. "Our discretion to formulate such a remedy, without disturbing the judgment of conviction, derives from 28 U.S.C. § 2243, which authorizes federal habeas courts to ‘dispose of the matter as law and justice requires.’"

Land: Prosecutor Speculation in Closing Argument Error, but Not Reversible Error

In Land v. Allen, No. 08-15254 (July 10, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for murder.
The Court held that despite evidence that a statement was taken from Land by Alabama police while he was in a semi-fetal position, with his hands covering his face, the totality of the circumstances did not indicate that his statement was involuntary.
The Court recognized that the trial court erred when it instructed the jury that "I determine the voluntariness of the statement [given by Land to police]." However, in view of the remainder of the instructions, this instruction by itself did so infect the entire trial so as to violate due process.
The Court also recognized that the prosecutor, in a case where the facts were all circumstantial, made improper closing argument when he speculated about the words that Land exchanged with the victim before murdering her. While the Court did not "condone the prosecutor’s behavior," it found that this misconduct did not so infect the trial as to make the resulting conviction invalid.
Finally, the Court did not find ineffective assistance of counsel in the failure to put on mitigating evidence about Land’s upbringing, noting the strategic decision behind it.

Goings: Ok for Georgia police to chase into Florida unauthorized

In U.S. v. Goings, No. 08-15705 (July 7, 2009), the Court, citing the Supreme Court’s recent decision in Virginia v. Moore, 128 S.Ct. 1598 (2008) (no Fourth Amendment violation when police officer makes an arrest prohibited by state law but based on probable cause), held that no Fourth Amendment violation occurred when Georgia police, in a hot pursuit car chase, crossed into Florida without authorization and apprehended a defendant. The Court noted that it was undisputed that the Georgia police had probable cause to arrest Goings. It was therefore irrelevant whether the chase into Florida was authorized by Florida law.