Archive for April, 2009

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In a Sixth Amendment challenge to the racial makeup of the venire, the defendant was unable to show a lack of fair and reasonable representation of the venire.

Monday, April 27th, 2009

U.S. v. CARMICHAEL, 2009 WL 539953 (11th Cir. March 5, 2009)

The defendant was indicted for conspiracy to distribute over 3,000 kilograms of marijuana and with conspiracy to launder the proceeds. In this appeal the defendant challenged the venire summoned to hear his case under the Jury Selection and Service Act of 1968 (JSSA) 28 U.S.C. § 1861 et seq. and the Sixth Amendment. The issue arose from a previous problem in the selection process in which jurors who chose to defer jury service are placed back in the summons pool, making the total pool of summoned jurors disproportionately white. (Jurors who deferred are two to one white.) A new system was devised to erase the disproportion, but apparently a new jury administrator accidentally violated the new system, creating a disproportion for the pool from which the defendant’s trial was drawn. The court found no violation of the JSSA. As for the Sixth Amendment claim, a prima facie violation of the fair cross section requirement requires the defendant to show: (1) the group alleged to be excluded is a distinct group in the community, (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Because the defendant could not show a lack of fair and reasonable representation, his claim was denied.

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Posted in Jury Selection, Sentencing Guidelines, Uncategorized | No Comments »

The Eleventh Circuit reversed two bribery related convictions of the former governor of Alabama.

Monday, April 27th, 2009

U.S. v. SIEGELMAN, 2009 WL 564659 (March 6, 2009)

The Court found that he should not have been convicted of honest services mail fraud based on Richard Scrushy’s self dealing once Scrushy became a member of the Board of Health Review. Siegelman had a lack of involvement in Scrushy’s self dealing and there was no agreement between the two at this point.

Denial of defense jury instruction upheld.

Siegelman wanted a jury instruction for the bribery charge stating that a quid pro quo agreement must be express. The Court noted that the case law merely requires an “explicit” agreement which can be achieved through winks and nods, if not express words. Furthermore, an agreement can be implied from words and actions

Denial of statute of limitations challenge upheld.

The Court rejected Siegelman’s statute of limitations challenge, noting that he failed to raise it until the filing of the motion for judgment of acquittal under Fed. R. Crim. P. 29(c), post verdict. If a defendant fails to raise the statute of limitations defense at trial, the defense is waived.

Sentencing upward departure upheld.

The Court affirmed an upward sentencing departure based on the fact that the Governor’s conduct had seriously undermined public confidence in the executive branch of the Alabama government.

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Posted in Jury Instructions, Procedure, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

No Ex Post Facto violation where statute criminalizes failure to register and not prior travel.

Monday, April 27th, 2009

U.S. v. AMBERT, 2009 WL 564977 (March 6, 2009)

The defendant was indicted for failing to register as required by the Sex Offender Registration and Notification Act. (SORNA) The Court rejected the defendant’s argument that his travel in interstate commerce occurred before the Attorney General determined that the SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders and therefore did not subject him to criminal liability for failing to register. The Court found the defendant traveled after February 28 and his violation was a failure to register which in his case occurred after February 28.

The Court also denied other Constitutional challenges.

The Court rejected a substantive due process challenge to the SORNA statute finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the nation’s history and applying the rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.

The Court also found that the registration requirement falls within the jurisdiction of the Commerce Clause. The Court found that when a sex offender travels from one state to another he is an instrumentality of interstate commerce.

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Posted in Sex Offender Registration, Uncategorized | No Comments »

The defendant waived his challenge to a faulty Information by agreeing to proceed to trial.

Monday, April 27th, 2009

U.S. v. BRANNAN, 2009 WL 736005 (11th Cir. March 23, 2009)

Evidently indecent exposure was a big problem in the Wheeler National Wildlife Refuge in Northern Alabama as it led to Mr. Brannan’s arrest by Federal Wildlife officers who conducted a “covert operation” posing as members of the public walking trails and sitting on park benches. On appeal, the defendant claimed the charging Information was defective because it left out an essential element of the crime by omitting the requirement that the jury find the “sexual act was committed without consent of the victim,” an element of the offense under applicable Alabama law. The appellate court rejected the claim, on the Invited Error Doctrine, finding the defendant encouraged the district court to proceed to trial, knowing the count was incorrect and did not ask for a dismissal at that time.

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Posted in Procedure | No Comments »

Filing a notice of appeal in a criminal case is jurisdictional but the government does not forfeit its objection by raising the issue with the filing of its brief.

Monday, April 27th, 2009

U.S. v. LOPEZ , 2009 WL 763128 (11th Cir. March 25, 2009)

This was a remand from the U.S. Supreme Court which directed the Court of Appeals to decide whether the deadline for filing a notice of appeal in a criminal case under Rule 4(b) is jurisdictional. The Court found it was not jurisdictional because the time limits are not based on any federal statute. The defendant then argued that the government forfeited its objection to the untimely appeal (filed days after the expiration of the period). The Court found that the government did not have to raise an objection with the district court and could object with the filing of its brief.

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Downward variance upheld for a defendant convicted of making sexually explicit films with minors where the sentencing factors supported the sentence as reasonable.

Monday, April 27th, 2009

U.S. v. IREY, 2009 WL 806860 (11th Cir. March 31, 2008)

Mr. Irey was convicted of using minors outside the United States for the purpose of making child pornography. The defendant made repeated trips to Cambodia on sex tours and videotaped himself having sex with minors, some of which depicted graphic sex acts and torture. The appellate court described the crime as “horrific.” Nevertheless it pointed out that defendant presented evidence through a psychologist who submitted a psychosexual report, that the defendant was treatable, was a medium to medium low risk of recidivism, and could be successful in supervised release after treatment. The defendant’s family testified he was a wonderful husband father and person and that he embraced treatment, he had been acting as a peer mentor to others in narcotics and alcoholic anonymous, and that the family would remain supportive. The district court also noted his age of 50. His guideline range was the statutory maximum of 360 months with a minimum sentence of 180 months, the statutory minimum. Though he was sentenced to 210 months and given a lifetime of supervised release, the government appealed. The Court reaffirmed that a party challenging the sentence has the burden of establishing the sentence is unreasonable in light of both the record and the factors of § 3553(a) factors. It reviewed the procedure a sentencing court must follow: First, consult the sentencing guidelines and calculate the correct guidelines sentence; Second, consider the factors listed in 3553(a). The Court found no procedural error in determining the applicable guidelines sentence; it rejected the government’s argument that the sentence was too lenient. The Court said that even though it may disagree with a sentence, it would not second guess the district court decision where as here the sentencing judge took the sentence seriously, proceeded thoughtfully and the sentence was reasoned. The court did consider the factors of §3553(a). The Court of Appeals did not second guess the district court as it respects the district court as a sentencer and accepted the sentence as it “was within the outside borders for a reasonable sentence for this kind of case.”

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Posted in Sentencing Guidelines, downward variance, kiddie porn, sentence enhancement | No Comments »

Court finds that evidence supports a jury instruction that states “fear of economic loss” in a Hobbs Act prosecution.

Monday, April 27th, 2009

U.S. v. BORNSCHEUER , 2009 WL 814587 (11th Cir. March 31, 2009)

The defendants were charged with extortion in violation of the Hobbs Act. The defendants were German businessmen who purchased a Florida corporation owned by another German citizen, living in Florida at the time of the events that gave rise to this prosecution. One of the defendants borrowed part of the purchase price from German investors and he financed the balance by giving the seller a mortgage on his property together with a note. Eventually, the defendants demanded that the seller/victim rescind the purchase and cancel the purchase mortgage, claiming the defendants’ financial backers were demanding payment. To persuade the seller to comply, they described their investors as dangerous underworld figures who would do anything to recover their money and warned the seller he better comply or his family would be at risk. The defendants’ appeal involved his challenge to the district court’s refusal to delete from the jury instruction on the Hobbs Act elements the words “fear of economic loss.” The appellate court rejected this argument as it found there was evidence that the victim feared the possibility of suffering economic loss by the defendants’ actions.

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Posted in Jury Instructions | No Comments »

In a limited remand for resentencing, the sentencing court is restricted to only those issues specifically that form the basis of the remand, with some limited exceptions.

Monday, April 27th, 2009

U.S. v WILLIAMS, 2009 W.L. 817498 (11th Cir. March 31, 2009)

The defendant appealed a life sentence for possession of crack cocaine, imposed at resentencing following a remand by the court of appeals. In Williams I, the court had remanded to the district court directing the court to give reasons why a life sentence on this 26 year old defendant was appropriate. In this appeal, the defendant argued that the district court interpreted the Court of Appeal’s mandate too narrowly and failed to consider 3553(a) factors in order to impose a lesser sentence. In other words the district court treated the guidelines as mandatory. The Court rejected the challenge finding that this was a limited remand restricting the district court from revisiting issues already affirmed. As the district court complied by giving reasons which included failure to take responsibility for his actions, his lengthy criminal history, the need to promote respect for the law, deterrence and the need to protect the public.

The exception to the restriction on a limited remand.

The only exception to a limited remand is for an intervening change in controlling law. The defendant argued that the Florida Supreme Court had held recently that BOLEO conviction is not a forcible felony for the purpose of sentencing enhancement under Florida’s violent career criminal statute and for that reason the district court erred in classifying him as a career offender. The court already rejected this argument in United States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), cert. granted, __ S. Ct.___, 2009 WL 425080 (Feb. 23, 2009), and although it is pending review in the U.S. Supreme court it is still controlling law.

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Posted in Resentencing, Sentencing Guidelines, sentence enhancement | No Comments »

Speedy trial delay warranted a dismissal without prejudice and not with prejudice.

Friday, April 24th, 2009

U.S. v. KNIGHT, 562 F.3d 1314 (11th Cir. March 31, 2009)

After the car Mr. Knight was riding in as a passenger was pulled over, a police officer saw him place a gun on the floor boards. He was arrested on state charges. While still state custody he was indicted by a federal grand jury on September 29, 2005, for possession of the firearm by a convicted felon. A federal detainer was lodged against him to hold him in the event he made bond. He was visited by ATF officers in the county jail who advised him of the pending investigation. Knight made some incriminating statements and did not ask for an attorney. He was transferred to federal custody where he pled not guilty. The district court granted a speedy trial claim but dismissed without prejudice. As to the appeal from the district court’s order dismissing “without prejudice” the Court applied the factors and found the district court did not abuse its discretions.

The seizure of evidence was found reasonable based on initial stop of the driver which led to the resulting seizure from the defendant.

The Court upheld the denial of the motion to suppress evidence seized in the stop. It found the initial stop of the car was valid because the driver was seen without a seat belt on. The officer had probable cause to stop the car, and the officer was entitled to ask the driver to step out the car. He had reasonable suspicion to pat down the driver and the officer smelled marijuana and alcohol.

The denial of the motion to suppress statements.

The Court found that the prior invocation of rights in the state case did not apply to the federal case. Statements made to the ATF were admissible.
The district court committed clear error for failing to reduce Knight’s sentence for time spent in state custody for obstruction of justice.

Where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the sentencing guidelines provide that the sentence include a credit for a period served in state custody for the obstruction case. The government conceded the error because the conduct that was used to enhance his federal sentence was related to the state conviction and the BOP would not give credit for that time.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure, Search incident to arrest, Sentencing Guidelines, Uncategorized, sentence enhancement | No Comments »

Evidence sufficient to support conviction of defendant residing in a marijuana grow house.

Friday, April 24th, 2009

U.S. v. JIMINEZ, 2009 WL 921437 (11th Cir. April 7, 2009)

The defendant Jimenez and his brother were convicted of charges concerning the manufacture and distribution of at least 100 marijuana plants found in a rural home they occupied. The court found the evidence sufficient to support a conviction of Jiminez, who lived in the house. The evidence of guilt could also include the defendant’s own testimony which the jury could reject and consider as substantive evidence of the defendant’s guilt.

Statements by codefendant incriminating the defendant were admissible.

The defendant challenged an agent’s statement that the co-defendant said that Jimenez was a participant in the grow-house operation. On appeal the defendant challenged the admission on the Sixth Amendment. At trial the defendant did not object to the testimony based on the Confrontation Clause, but instead relied on hearsay grounds. The court noted that a hearsay objection does not preserve a Confrontation Clause objection. The appellate court found no Confrontation Clause violation where the defendant failed to show violation of substantial rights for a violation of the Confrontation Clause.

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Posted in Sixth Amendment, Uncategorized | No Comments »

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