In Jones v. Sec. Dep’t of Corrections, No. 08-12289 (June 28, 2011), the Court denied habeas relief to a Florida inmate on death row for two 1987 murders.
The Court deferred to the Florida courts’ determination that defense counsel was not ineffective, even after he stated in open court: “I want nothing further to do with [my client].” The Court stated: “We do not – and the law does not – assume that lawyers will fail to do their duty, even when the duty is painful and difficult.”
Wednesday, June 29, 2011
Monday, June 27, 2011
Ladson: Government failed to strictly comply with 851 notice requirement
In U.S. v. Ladson, No. 10-10151 (June 24, 2011), the Court vacated a sentence of life imprisonment, because the government did not properly serve its 21 U.S.C. § 851 notice of enhanced sentence. The Court noted that § 851 requires the government to both file and serve the notice before trial. The government is required to”strictly comply with the service requirement before trial.”
The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.
The emails of trial counsel also did not show that the notice had been served.
Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.
The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.
The emails of trial counsel also did not show that the notice had been served.
Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.
Friday, June 24, 2011
Vera Rojas: FSA applies to crack offenders sentenced after August 3, 2010
In U.S. v. Vega Rojas, No 10-14662 (June 24, 2011), the Court (Wilson, Martin, Anderson), held that the Fair Sentencing Act applied to crack cocaine offenders sentenced after the effective date of the FSA, August 3, 2010.
The Court distinguished U.S. v. Gomes, in which it had held that the FSA did not apply to a defendant sentenced prior to the FSA’s effective date.
The Court rejected the government’s reliance on the savings clause, 1 U.S.C. § 109 and Warden v. Marrero, on the ground that the repealing statute in that case specifically sought to preserve the harsher penalty for prosecutions initiated before its effective date. The FSA, by contrast, was “silent” on this point. The Court noted that Congress would not have intended for courts to sentence crack offenders under the old, higher mandatory minimums, until August 3, 2015, when the five-year statute of limitations would run. The Court noted that Congress granted the Sentencing Commission emergency authority to amend the crack cocaine Guidelines. Asking district courts to consider the date of the offense when determining the statutory minimum, and the sentencing date when applying the Guidelines, would lead to “incongruous” results. “The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.”
The Court distinguished U.S. v. Gomes, in which it had held that the FSA did not apply to a defendant sentenced prior to the FSA’s effective date.
The Court rejected the government’s reliance on the savings clause, 1 U.S.C. § 109 and Warden v. Marrero, on the ground that the repealing statute in that case specifically sought to preserve the harsher penalty for prosecutions initiated before its effective date. The FSA, by contrast, was “silent” on this point. The Court noted that Congress would not have intended for courts to sentence crack offenders under the old, higher mandatory minimums, until August 3, 2015, when the five-year statute of limitations would run. The Court noted that Congress granted the Sentencing Commission emergency authority to amend the crack cocaine Guidelines. Asking district courts to consider the date of the offense when determining the statutory minimum, and the sentencing date when applying the Guidelines, would lead to “incongruous” results. “The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.”
Friday, June 17, 2011
Johnson: Counsel ineffective at sentencing phase
In Johnson v. Secretary, DOC, No. 09-15344 (June 14, 2011), the Court held that a Florida death row inmate, convicted of a 1979 murder, was entitled to federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.
The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.
The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.
The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.
The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.
Graham: Pro Se defendant not entitled to continuance
In U.S. v. Graham, No. 14736 (June 14, 2011), the Court affirmed mortgage fraud convictions of a defendant tried separately from accomplices in U.S. v. Hill.
The Court found no violation of Graham’s rights, when Graham, having repeatedly asked to proceed pro se, requested to be represented by counsel on the first day of trial, and was not granted a continuance to allow counsel to prepare. The Court also rejected Graham’s argument that he was not given time to hire competent counsel, pointing out that he had a year-and-a-half to decide to hire any lawyer he chose, and it was his own fault if he failed to do so. The Court found that Graham intentionally created his situation, and said it would not permit Graham to “game the system.”
The Court also rejected the argument that Graham’s due process rights were violated when he appeared at trial dressed in a prison orange suit. Graham had told the court that he was obtaining street clothing, and then failed to do so – and had no proposal for obtaining street clothing without delaying the trial. Moreover, during opening argument, Graham’s counsel “adeptly managed to use the orange suit for strategic advantage.”
Finally, the Court rejected a challenge to the opinion testimony of a government witness, who testified, as a lay witness, about his personal knowledge of mortgage fraud. The Court held that this testimony was admissible because the government established that this witness “had personal knowledge based on his participation in fraudulent real estate closings.”
The Court found no violation of Graham’s rights, when Graham, having repeatedly asked to proceed pro se, requested to be represented by counsel on the first day of trial, and was not granted a continuance to allow counsel to prepare. The Court also rejected Graham’s argument that he was not given time to hire competent counsel, pointing out that he had a year-and-a-half to decide to hire any lawyer he chose, and it was his own fault if he failed to do so. The Court found that Graham intentionally created his situation, and said it would not permit Graham to “game the system.”
The Court also rejected the argument that Graham’s due process rights were violated when he appeared at trial dressed in a prison orange suit. Graham had told the court that he was obtaining street clothing, and then failed to do so – and had no proposal for obtaining street clothing without delaying the trial. Moreover, during opening argument, Graham’s counsel “adeptly managed to use the orange suit for strategic advantage.”
Finally, the Court rejected a challenge to the opinion testimony of a government witness, who testified, as a lay witness, about his personal knowledge of mortgage fraud. The Court held that this testimony was admissible because the government established that this witness “had personal knowledge based on his participation in fraudulent real estate closings.”
Hill: Mortgage fraud convictions affirmed; Kastigar hearing required
In U.S. v. Hill, No. 07-14602 (June 14, 2011), in a 163-page opinion, the Court affirmed mortgage fraud convictions and sentences.
The Court held that it was not error to deny a severance on the ground that the district court limited the 18 defendants to a total of 16 peremptory challenges, fewer than they each would have had if tried separately. The Court noted that 16 is more than the 10 peremptory challenges allotted to a single defendant. The Court also rejected the argument that a defendant’s trial should have been severed because he was charged in only a few counts.
The Court found no error in jury selection in the failure to ask the venire whether they knew all of the witnesses who would testify at trial, because the one juror who, as it turned out, did know a witness, was an alternate juror who did not participate in deliberations.
The Court found no prima facie evidence to support a Batson challenge to the prosecution’s use of peremptory strikes to eliminate potential black jurors. The Court noted that the government only used 64% of its peremptory strikes to eliminate black venirepersons, could have excluded five more blacks than it did, and there were nine blacks left to serve on the jury. In addition, in a mortgage fraud case, “the only relevant color is the color of money, and that shade of green is race neutral.” Moreover, most of the defendants, and their lawyers, were white.
The Court rejected the argument that FRE 701 was violated by the admission of testimony of bank officials that they would not have approved loans if misrepresentations in the loan applications would have been disclosed to them. The Court noted that the topic was within the experience of the bank officers, and it did not require expert testimony to establish “that lending institutions would be reluctant to approve a loan application if they it contained false statements about material facts.”
The Court found no error in the district court’s statement that unless the defense agreed to “reasonable stipulations in order to expedite the trial proceedings,” the court would consider this in future sentencing proceedings. The Court noted that it is permissible to give a defendant a “carrot” in exchange for a guilty plea, and found that the district court had not stated at sentencing that it was imposing a longer sentence on a particular defendant because he had not entered into some stipulations.
The Court found no reversible error in the district court’s refusal to give a “good faith defense” jury instruction regarding certain charges. The Court found that the instructions requiring the jury to find that the defendants “wilfully” violated the law required the jury to rule out the possibility that the defendants actually harbored a good faith belief in the legitimacy of their scheme.
The Court rejected a challenge to the giving of a “deliberate ignorance” jury instruction, noting that even if the evidence was insufficient to support this instruction, the evidence of the defendants’ actual knowledge made the error harmless.
The Court rejected defendants’ challenges to the sufficiency of the evidence, including an appraiser’s argument based in part on the fact that the person under whose supervision she was working was not charged with any crime: “The law accommodates imperfection and is home to the idea that it is better to have some justice than none.”
The Court rejected a Double Jeopardy challenge to two convictions based on the fact that the trial court granted Rule 29 motions of acquittal orally from the bench, and then reversed itself before the conclusion of the lengthy Rule 29 hearing, and before the defense opened its case. The Court distinguished Smith v. Massachusetts, 543 U.S. 462 (2005), on the ground that in Smith the trial court reversed its judgment of acquittal after the defense had put on evidence, and after it rested its case.
Turning to one defendant’s Kastigar challenge to the government’s use of evidence against him that he proffered during immunized plea negotiations, despite a proffer agreement that, the Court found, precluded such use, the Court found that the trial court erred in failing to hold an evidentiary hearing. The Court noted that the government should have been required to prove that all of the evidence it introduced at trial – not just the evidence the defendants objected to – was derived from a source independent from the testimony that was compelled under a grant of immunity. The trial court also erred in only giving the defendant 30 minutes to review the government’s “document dump.” In addition, a prosecutor’s admission that the government “used” the defendant’s information “for leads and so forth” indicated that, unless this prosecutor testified at a hearing and could “explain” that admission, the government could not prove that it made no derivative use of the defendant’s information.
Turning to sentencing, the Court rejected the argument that sentences were procedurally unreasonable because the district court’s statements showed that it was “slavishly” adhering to the Guidelines. The Court did not so construe the district court’s remarks at sentencing.
The Court also rejected substantive reasonableness challenges to the sentences, including the sentence of 336 months imposed on Hill, noting his leadership role in a “massive” conspiracy involving $110 million of fraudulent loans.
The Court held that it was not error to deny a severance on the ground that the district court limited the 18 defendants to a total of 16 peremptory challenges, fewer than they each would have had if tried separately. The Court noted that 16 is more than the 10 peremptory challenges allotted to a single defendant. The Court also rejected the argument that a defendant’s trial should have been severed because he was charged in only a few counts.
The Court found no error in jury selection in the failure to ask the venire whether they knew all of the witnesses who would testify at trial, because the one juror who, as it turned out, did know a witness, was an alternate juror who did not participate in deliberations.
The Court found no prima facie evidence to support a Batson challenge to the prosecution’s use of peremptory strikes to eliminate potential black jurors. The Court noted that the government only used 64% of its peremptory strikes to eliminate black venirepersons, could have excluded five more blacks than it did, and there were nine blacks left to serve on the jury. In addition, in a mortgage fraud case, “the only relevant color is the color of money, and that shade of green is race neutral.” Moreover, most of the defendants, and their lawyers, were white.
The Court rejected the argument that FRE 701 was violated by the admission of testimony of bank officials that they would not have approved loans if misrepresentations in the loan applications would have been disclosed to them. The Court noted that the topic was within the experience of the bank officers, and it did not require expert testimony to establish “that lending institutions would be reluctant to approve a loan application if they it contained false statements about material facts.”
The Court found no error in the district court’s statement that unless the defense agreed to “reasonable stipulations in order to expedite the trial proceedings,” the court would consider this in future sentencing proceedings. The Court noted that it is permissible to give a defendant a “carrot” in exchange for a guilty plea, and found that the district court had not stated at sentencing that it was imposing a longer sentence on a particular defendant because he had not entered into some stipulations.
The Court found no reversible error in the district court’s refusal to give a “good faith defense” jury instruction regarding certain charges. The Court found that the instructions requiring the jury to find that the defendants “wilfully” violated the law required the jury to rule out the possibility that the defendants actually harbored a good faith belief in the legitimacy of their scheme.
The Court rejected a challenge to the giving of a “deliberate ignorance” jury instruction, noting that even if the evidence was insufficient to support this instruction, the evidence of the defendants’ actual knowledge made the error harmless.
The Court rejected defendants’ challenges to the sufficiency of the evidence, including an appraiser’s argument based in part on the fact that the person under whose supervision she was working was not charged with any crime: “The law accommodates imperfection and is home to the idea that it is better to have some justice than none.”
The Court rejected a Double Jeopardy challenge to two convictions based on the fact that the trial court granted Rule 29 motions of acquittal orally from the bench, and then reversed itself before the conclusion of the lengthy Rule 29 hearing, and before the defense opened its case. The Court distinguished Smith v. Massachusetts, 543 U.S. 462 (2005), on the ground that in Smith the trial court reversed its judgment of acquittal after the defense had put on evidence, and after it rested its case.
Turning to one defendant’s Kastigar challenge to the government’s use of evidence against him that he proffered during immunized plea negotiations, despite a proffer agreement that, the Court found, precluded such use, the Court found that the trial court erred in failing to hold an evidentiary hearing. The Court noted that the government should have been required to prove that all of the evidence it introduced at trial – not just the evidence the defendants objected to – was derived from a source independent from the testimony that was compelled under a grant of immunity. The trial court also erred in only giving the defendant 30 minutes to review the government’s “document dump.” In addition, a prosecutor’s admission that the government “used” the defendant’s information “for leads and so forth” indicated that, unless this prosecutor testified at a hearing and could “explain” that admission, the government could not prove that it made no derivative use of the defendant’s information.
Turning to sentencing, the Court rejected the argument that sentences were procedurally unreasonable because the district court’s statements showed that it was “slavishly” adhering to the Guidelines. The Court did not so construe the district court’s remarks at sentencing.
The Court also rejected substantive reasonableness challenges to the sentences, including the sentence of 336 months imposed on Hill, noting his leadership role in a “massive” conspiracy involving $110 million of fraudulent loans.
Tuesday, June 14, 2011
James: Substantial Compliance with 851(b) suffices
In U.S. v. James, No 10-10399 (June 9, 2011), the Court rejected a challenge to a “reasonable doubt” instruction where defense counsel had “invited” the error by submitting the very instruction he now challenged. Moreover, the trial court’s instruction that reasonable doubt need not exclude all “possible” doubt was consistent with the Eleventh Circuit pattern jury instructions.
The Court also rejected James’ challenge to the failure to comply with the procedures of 21 U.S.C. § 851(b), which require the district court to specifically ask the defendant whether he affirmed or denied the past convictions on which the government relied to enhance his sentence.
The Court recognized dicta in prior cases suggesting that “substantial compliance” with § 851(b) was insufficient. However, the Court found that these precedents were not binding, and other caselaw indicated that an omission can be harmless.
James had notice of the government’s intent to rely on the prior convictions. James never objected to the PSI’s descriptions of his prior convictions or to the enhancement of his sentence based on those convictions. Moreover, the district court at sentencing discussed the prior convictions with James and his counsel and gave them ample opportunity to object. Any error, therefore, was harmless.
The Court also rejected James’ challenge to the failure to comply with the procedures of 21 U.S.C. § 851(b), which require the district court to specifically ask the defendant whether he affirmed or denied the past convictions on which the government relied to enhance his sentence.
The Court recognized dicta in prior cases suggesting that “substantial compliance” with § 851(b) was insufficient. However, the Court found that these precedents were not binding, and other caselaw indicated that an omission can be harmless.
James had notice of the government’s intent to rely on the prior convictions. James never objected to the PSI’s descriptions of his prior convictions or to the enhancement of his sentence based on those convictions. Moreover, the district court at sentencing discussed the prior convictions with James and his counsel and gave them ample opportunity to object. Any error, therefore, was harmless.
Friday, May 27, 2011
Duke v. Allen: Not Commenting on Defendant's Failure to Tesify
In Duke v. Allen, No. 09-16011 (May 26, 2011) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate.
During the prosecution’s closing argument, defense counsel objected to an apparent reference to the defendant’s failure to testify, and asked the trial court to note that the prosecutor was pointing at the defendant when he made the statement. The trial court, however, did not so note. The Court found that defense counsel therefore failed to preserve a record adequate to allow a reviewing court to review the claimed gesture by the prosecutor. Moreover, the “he” whom the prosecutor may have been commenting on might not have been the defendant, but the blood of a victim. [In dissent, Judge Wilson argued that “he” referred to the defendant, and the prosecution was therefore improperly commenting on the defendant’s failure to testify.]
During the prosecution’s closing argument, defense counsel objected to an apparent reference to the defendant’s failure to testify, and asked the trial court to note that the prosecutor was pointing at the defendant when he made the statement. The trial court, however, did not so note. The Court found that defense counsel therefore failed to preserve a record adequate to allow a reviewing court to review the claimed gesture by the prosecutor. Moreover, the “he” whom the prosecutor may have been commenting on might not have been the defendant, but the blood of a victim. [In dissent, Judge Wilson argued that “he” referred to the defendant, and the prosecution was therefore improperly commenting on the defendant’s failure to testify.]
Pietri: Failure to Present Metabolic Intoxication Defense not Ineffective
In Pietri v. Florida Dep’t of Corrections, No. 09-11750 (May 25, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1988 murder.
The Court rejected the argument that counsel were ineffective for failing to put on an “metabolic intoxication” defense. The Court noted that Pietri did not show that he was intoxicated at the time of the murder, and that “metabolic intoxication” was not a cognizable under Florida law at the time of Pietri’s trial.
The Court also rejected the argument that counsel were ineffective at the penalty phase for failing to present mitigating evidence. The Court found that trial counsel strategically decided not to present some of the mental health experts they consulted.
The Court rejected the argument that counsel were ineffective for failing to put on an “metabolic intoxication” defense. The Court noted that Pietri did not show that he was intoxicated at the time of the murder, and that “metabolic intoxication” was not a cognizable under Florida law at the time of Pietri’s trial.
The Court also rejected the argument that counsel were ineffective at the penalty phase for failing to present mitigating evidence. The Court found that trial counsel strategically decided not to present some of the mental health experts they consulted.
Friske: Insufficient Evidence of Obstruction "Nexus"
In U.S. v. Friske, No. 09-14915 (May 18, 2011), the Court reversed a conviction for attempting to obstruct an official proceeding by attempting to dispose of and hide assets involved in a forfeiture proceeding, in violation of 18 U.S.C. § 1512(c)(2). The Court found that the evidence was insufficient.
The evidence showed that Friske “was certainly acting suspiciously” in his attempts to recover sealed PVC pipes from under the pool deck of a person indicted for marihuana production. However, the offense required proof of a “nexus” between a person’s actions and the judicial proceedings he was attempting to obstruct. Here, no evidence showed that Friske was aware of, or could have foreseen, the forfeiture proceeding at issue. Speculation that Friske knew his actions would obstruct the forfeiture proceeding could not suffice to sustain his conviction.
The evidence showed that Friske “was certainly acting suspiciously” in his attempts to recover sealed PVC pipes from under the pool deck of a person indicted for marihuana production. However, the offense required proof of a “nexus” between a person’s actions and the judicial proceedings he was attempting to obstruct. Here, no evidence showed that Friske was aware of, or could have foreseen, the forfeiture proceeding at issue. Speculation that Friske knew his actions would obstruct the forfeiture proceeding could not suffice to sustain his conviction.
Gilbert: Habeas unavailable to correct career offender sentence
In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.
At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.
The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”
At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.
The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”
Thursday, May 12, 2011
Martikainen: No Fleeing Law Enforcement Enhancement When Defendant was Unaware of Pursuit
In U.S. v. Martikainen, No. 10-13337 (May 10, 2011), the Court reversed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly endangering another in the course of fleeing from a law enforcement officer.
After a divorce and a visitation rights order, Martikainen absconded with his son by getting on a sailboat, and sailing into the Gulf of Mexico, where his sailboat was located and ultimately boarded by the Coast Guard. Martikainen cooperated with the boarding agents.
The Court noted that § 3C1.2 does not apply when there is no officer around. Here, law enforcement officers were tracking Martikainen’s sailboat but Martikainen was not fleeing any particular law enforcement officer, and was unaware of the Coast Guard pursuit until it was over, at which point he cooperated.
The sentencing court’s imposition of the § 3C1.2 enhancement was not harmless error, because the court stated that it was sentencing Martikainen in the middle of the guideline range, and this sentence exceeded the applicable range without the enhancement.
After a divorce and a visitation rights order, Martikainen absconded with his son by getting on a sailboat, and sailing into the Gulf of Mexico, where his sailboat was located and ultimately boarded by the Coast Guard. Martikainen cooperated with the boarding agents.
The Court noted that § 3C1.2 does not apply when there is no officer around. Here, law enforcement officers were tracking Martikainen’s sailboat but Martikainen was not fleeing any particular law enforcement officer, and was unaware of the Coast Guard pursuit until it was over, at which point he cooperated.
The sentencing court’s imposition of the § 3C1.2 enhancement was not harmless error, because the court stated that it was sentencing Martikainen in the middle of the guideline range, and this sentence exceeded the applicable range without the enhancement.
Wednesday, May 11, 2011
Siegelman: Affirming Most Convictions of Former Alabama Governor
In U.S. v. Siegelman, No. 09-13163 (May 10, 2011), on remand from the Supreme Court, the Court, in a 65-page opinion, affirmed some convictions and reversed others, in a case involving bribery and fraud charges against the former Governor of Alabama.
The Court affirmed convictions for violating 18 U.S.C. § 666(a)(1)(B), the federal bribery statute. The Court rejected the argument that the jury should have been instructed that bribery only occurs when payments are made in exchange for an “express” quid pro quo agreement. The Court found that this instruction would allow defendants to escape bribery liability by “knowing winks and nods.”
Turning to the honest services fraud convictions, the Court found that these convictions were unaffected by the Supreme Court recent decision in Skilling requiring a quid pro quo, because the offenses already charged a quid pro quo, and the jury were so instructed.
The Court found insufficient evidence to support Siegelman’s conviction of self-dealing in connection with the conduct of co-defendant Scrushy on an Alabama Board. The Court found that Siegelman had no awareness of Scrushy’s self-dealing. The Court also found insufficient evidence to support Scrushy’s self-dealing convictions. Post-Skilling, these convictions required a showing that Scrushy bribed someone, but there was insufficient evidence of such a bribe.
The Court affirmed a conviction of Siegelman for obstruction of justice, noting evidence showing that he tried to cover-up his receipt moneys through a false motorcycle transaction. The Court noted the jury’s split verdict on two obstruction counts, indicating that the jurors had carefully drawn inferences from circumstantial evidence.
The Court agreed with the district court’s finding that while the jury was exposed to extrinsic evidence, this exposure was harmless.
The Court rejected the argument that there were premature jury deliberations, as evidenced by an exchange of emails among jurors. The Court noted that Fed. R. Evid. 606(b) precludes inquiry of an individual juror into the validity of a verdict. Thus, although the emails would have been juror misconduct, the trial court was precluded from directly inquiring by interrogating jurors. In view of the length of deliberations, and the split verdict, the Court found no reversible error.
Finally, the Court found no error in the district court’s upward sentencing departure based on the loss of confidence suffered by the people of the state of Alabama in the integrity of its elected officials.
The Court affirmed convictions for violating 18 U.S.C. § 666(a)(1)(B), the federal bribery statute. The Court rejected the argument that the jury should have been instructed that bribery only occurs when payments are made in exchange for an “express” quid pro quo agreement. The Court found that this instruction would allow defendants to escape bribery liability by “knowing winks and nods.”
Turning to the honest services fraud convictions, the Court found that these convictions were unaffected by the Supreme Court recent decision in Skilling requiring a quid pro quo, because the offenses already charged a quid pro quo, and the jury were so instructed.
The Court found insufficient evidence to support Siegelman’s conviction of self-dealing in connection with the conduct of co-defendant Scrushy on an Alabama Board. The Court found that Siegelman had no awareness of Scrushy’s self-dealing. The Court also found insufficient evidence to support Scrushy’s self-dealing convictions. Post-Skilling, these convictions required a showing that Scrushy bribed someone, but there was insufficient evidence of such a bribe.
The Court affirmed a conviction of Siegelman for obstruction of justice, noting evidence showing that he tried to cover-up his receipt moneys through a false motorcycle transaction. The Court noted the jury’s split verdict on two obstruction counts, indicating that the jurors had carefully drawn inferences from circumstantial evidence.
The Court agreed with the district court’s finding that while the jury was exposed to extrinsic evidence, this exposure was harmless.
The Court rejected the argument that there were premature jury deliberations, as evidenced by an exchange of emails among jurors. The Court noted that Fed. R. Evid. 606(b) precludes inquiry of an individual juror into the validity of a verdict. Thus, although the emails would have been juror misconduct, the trial court was precluded from directly inquiring by interrogating jurors. In view of the length of deliberations, and the split verdict, the Court found no reversible error.
Finally, the Court found no error in the district court’s upward sentencing departure based on the loss of confidence suffered by the people of the state of Alabama in the integrity of its elected officials.
Thursday, May 05, 2011
Lanzon: Attempt suffices to entice minor
In U.S. v. Lanzon, No. 09-14535 (May 4, 2011), the Court affirmed a conviction for attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
The Court rejected Lanzon’s argument that he could not be convicted of attempt, because § 2422(b) required a State predicate crime, and his predicate crime was a Florida statute that required a completed sex offense, not just an attempt. The Court noted that the federal statute merely required an “attempt, and federal, not state, law governed this element of the offense. Moreover, the facts were sufficient to show an attempt: Lanzon conducted sexually explicit online conversations regarding a 14-year old, drove several miles to an arranged meeting place, and carried condoms and mint lubricant in his truck.
The Court also rejected Lanzon’s Fourth Amendment challenge to the warrantless seizure of materials from his truck, after his arrest. The Court found that the police had probable cause to believe the truck contained evidence of a crime.
The Court rejected Lanzon’s challenge to the police’s failure to preserve computer evidence of his communications with undercover officers. The Court noted that Lanzon failed to show “bad faith” on the part of the detective who transferred the instant message conversations to Word documents. The Court also rejected Lanzon’s challenge to the authentication of the messages, crediting the detective’s testimony that he participated in the online chats, and accurately copied the transcripts of the conversations. Moreover, the use of copied transcripts did not violate the best evidence rule, because the originals were not destroyed in bad faith. Finally, the Court found that the district court did not abuse its discretion in declining to give a “spoliation of evidence” jury instruction. Again, the Court noted the absence of bad faith in the detective’s actions.
The Court rejected Lanzon’s argument that he could not be convicted of attempt, because § 2422(b) required a State predicate crime, and his predicate crime was a Florida statute that required a completed sex offense, not just an attempt. The Court noted that the federal statute merely required an “attempt, and federal, not state, law governed this element of the offense. Moreover, the facts were sufficient to show an attempt: Lanzon conducted sexually explicit online conversations regarding a 14-year old, drove several miles to an arranged meeting place, and carried condoms and mint lubricant in his truck.
The Court also rejected Lanzon’s Fourth Amendment challenge to the warrantless seizure of materials from his truck, after his arrest. The Court found that the police had probable cause to believe the truck contained evidence of a crime.
The Court rejected Lanzon’s challenge to the police’s failure to preserve computer evidence of his communications with undercover officers. The Court noted that Lanzon failed to show “bad faith” on the part of the detective who transferred the instant message conversations to Word documents. The Court also rejected Lanzon’s challenge to the authentication of the messages, crediting the detective’s testimony that he participated in the online chats, and accurately copied the transcripts of the conversations. Moreover, the use of copied transcripts did not violate the best evidence rule, because the originals were not destroyed in bad faith. Finally, the Court found that the district court did not abuse its discretion in declining to give a “spoliation of evidence” jury instruction. Again, the Court noted the absence of bad faith in the detective’s actions.
Wednesday, April 27, 2011
Proch: Escape from Jail Qualifies under ACCA
In U.S. v. Proch, No. 09-15181 (April 26, 2011), the Court held that Proch’s prior two burglaries and escape convictions were separate crimes for purposes of qualifying as “violent felonies” for purposes of the Armed Career Criminal Act (“ACCA’). The Court found that the two burglaries were of two businesses located on the same commercial boulevard but separated by a side street and parking lots. The separate locations suggested two separate criminal episodes. The escape was also a separate crime, as it occurred either at the jail or while Proch was being transported to the jail – at a time when the burglaries were complete.
The Court held that the escape was a “violent felony.” Distinguishing the failure to report offense at issue in the Supreme Court’s Chambers decision as involving “inaction,” the Court noted that the subsections of the Florida escape statute at issue were escape from jail, or escape from custody while being transported to or from jail. The Court found that such escapes “pose the same degree of risk” and are “similar in kind” to the enumerated felonies listed in ACCA’s residual clause. The Court noted that one who escapes from prison “is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation.” Escapes will “almost always involve the police attempting to apprehend the escapee” and are likely to cause “an eruption of violence” upon discovery. An escape involves “a choice that will almost certainly be responded to with force, and potentially violent force, by the police.”
The Court held that the escape was a “violent felony.” Distinguishing the failure to report offense at issue in the Supreme Court’s Chambers decision as involving “inaction,” the Court noted that the subsections of the Florida escape statute at issue were escape from jail, or escape from custody while being transported to or from jail. The Court found that such escapes “pose the same degree of risk” and are “similar in kind” to the enumerated felonies listed in ACCA’s residual clause. The Court noted that one who escapes from prison “is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation.” Escapes will “almost always involve the police attempting to apprehend the escapee” and are likely to cause “an eruption of violence” upon discovery. An escape involves “a choice that will almost certainly be responded to with force, and potentially violent force, by the police.”
Friday, April 22, 2011
Cave: Different Defense would not have changed the outcome
In Cave v. Sec. Dep’t of Corrections, No. 09-15602 (April 12, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
Declining to decide whether the deference owed to the Florida state courts was governed by an “unreasonableness” standard or a “clear and convincing evidence” standard, the Court found no merit in Cave’s ineffective assistance of counsel claims.
The Court rejected the argument that counsel was ineffective because he labored under the mistaken impression that a death sentence could not be imposed if the State relied only on circumstantial evidence. The Court noted that Cave failed to show that he would have put on a different defense that would have changed the outcome. Moreover, defense counsel decided not to put on a mental health mitigation defense because the risks outweighed the benefits.
The Court also rejected the argument that defense counsel was ineffective for pursuing a defense based on Cave’s lack of criminal history, because it opened the door for the State to ask about Cave’s arrest for rape. The Court found the defense not unreasonable, because it was consistent with an overall theory that Cave had “nothing to hide.”
Recognizing that it presented a closer question, the Court found that defense counsel was not ineffective for failing to object when the prosecution elicited, on cross-examination, Cave’s testimony that his prior arrest was for rape. The Court deferred to the finding that even if deficient, the failure to object did not sufficiently prejudice Cave’s defense to warrant habeas relief.
Declining to decide whether the deference owed to the Florida state courts was governed by an “unreasonableness” standard or a “clear and convincing evidence” standard, the Court found no merit in Cave’s ineffective assistance of counsel claims.
The Court rejected the argument that counsel was ineffective because he labored under the mistaken impression that a death sentence could not be imposed if the State relied only on circumstantial evidence. The Court noted that Cave failed to show that he would have put on a different defense that would have changed the outcome. Moreover, defense counsel decided not to put on a mental health mitigation defense because the risks outweighed the benefits.
The Court also rejected the argument that defense counsel was ineffective for pursuing a defense based on Cave’s lack of criminal history, because it opened the door for the State to ask about Cave’s arrest for rape. The Court found the defense not unreasonable, because it was consistent with an overall theory that Cave had “nothing to hide.”
Recognizing that it presented a closer question, the Court found that defense counsel was not ineffective for failing to object when the prosecution elicited, on cross-examination, Cave’s testimony that his prior arrest was for rape. The Court deferred to the finding that even if deficient, the failure to object did not sufficiently prejudice Cave’s defense to warrant habeas relief.
Thursday, April 21, 2011
Pruitt: Viewing Child Porn Images Suffices for Knowing Receipt
In U.S. v. Pruitt, No 10-10829 (April 13, 2011), the Court held that, to violate the prohibition against knowing receipt on computers of child pornography under 18 U.S.C. § 2252A(a)(2), it suffices for a defendant to knowingly seek out and view child pornography images on a computer. The Court also held that knowing receipt can be inferred from the existence of 70 such images in the defendant’s computer’s “cache” and of 200 such images in the computer’s “unallocated space,” as well as evidence of internet searches with search terms such as “nude little boy.”
Wednesday, April 06, 2011
Turner: Death Row Inmate Not Mentally Retarded
In In re Turner, No. 11-11037 (April 5, 2011), the Court held that a Florida inmate, on death row for a 1985 murder conviction, failed to establish that he was eligible for a second or successive habeas petition, because he failed to establish that he was ineligible for the death penalty on account of his mental retardation. The Court agreed that based on the Supreme Court’s decision in Atkins, Turner would be eligible for a second or successive petition if he could demonstrate that he was ineligible for the death penalty on account of Atkins’ holding that mentally retarded offenders should not be executed. However, there was no reasonable likelihood that Turner was mentally retarded. The Court cited tests showing “average intelligence,” his attendance at junior college, and his stable job history.
Tuesday, April 05, 2011
Pantle: No Plain Error in Counting Prior Convictions
In U.S. v. Pantle, No. 09-13728 (April 4, 2011), the Court (Carnes, Pryor, Seitz) held that it was not plain error to erroneously count two prior convictions as “violent felonies” for purposes of a Guidelines sentence enhancement, because the district court indicated at sentencing that even though it was imposing the statutory maximum sentence, the sentence was not reasonable, i.e., not severe enough. At sentencing the district court counted Pantle’s prior Florida battery conviction, and his prior Alabama conviction for first degree assault, as violent felonies. Pantle did not object to these determinations. On appeal, he argued that these prior convictions should not have counted for Guideline enhancement purposes. Without reaching the merits of Pantle’s arguments, the Court held that no substantive rights were violated. The district court imposed the statutory maximum sentence, well below the Guideline range. The district court indicated at sentencing that it did not believe this sentence was severe enough. Therefore, even if Pantle prevailed on his challenge to the two prior convictions, he could not carry his burden of showing that his substantial rights were affected, because he could not show a reasonable probability that the district court would have imposed a lower sentence.
Tuesday, March 29, 2011
Wetherald: Ex Post Facto Clause, Post-Booker, Applies to Guidelines
In U.S. v. Wetherald, No. 09-11687 (March 28, 2011), affirming multiple fraud convictions, the Court held that even though the Guidelines, post-Booker, are not mandatory, the Ex Post Facto Clause still requires a district court not to apply a harsher Guideline that took effect after the defendant’s conduct, unless the district court a sentencing makes clear that it does not feel bound by the more recent, harsher Guidelines. Here, the district court stated that it would impose a sentence below the advisory guideline range. Moreover, the district court in fact did impose significantly lower sentences than the guideline range. The defendants could only offer speculation that the district court’s sentences were affected by the more recent Guidelines. Thus, no Ex Post Facto violation occurred. The Court also rejected the argument that the fraud offense of convictions involved partnerships, not securities. The Court pointed out that the investors had no say in the decisions of the fraudulent entities at issue.
Subscribe to:
Posts (Atom)