Archive for July, 2009

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The District Court made procedural errors in applying the Guidelines.

Tuesday, July 28th, 2009

U.S. v. Gupta, 2009 WL 1749046 (11th Cir. June 23, 2009)

The defendants were convicted of conspiracy to submit false Medicare claims. This third appeal involves fundamental errors about the sentencing of the Defendant, Gupta, and whether to reassign the case to a Fourth District Judge for sentencing.  The court not only failed to calculate loss, but also, erroneously, it reduced the defendant’s offense level by two points for acceptance of responsibility. Because it employed an arbitrary approach, the District Court did not identify a basis for the loss found. Moreover, the court credited the defendant with two points for accepting responsibility but the defendant continuously challenged and contested the government and made clear that he thought he was innocent.

The District Court imposed an unreasonable sentence.

The court believed that the District Court’s refusal to set aside its feelings is more pronounced after a third appeal and second reassignment request, therefore, to preserve in the public mind the image of absolute impartiality and fairness of the judiciary, the case had to be reassigned.

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Posted in Resentencing, Sentencing Guidelines | No Comments »

The defendant was not entitled to Franks hearing.

Monday, July 27th, 2009

U.S. v. Valencia-Trujillo, 2009 WL 1929157 (11th Cir. July 7, 2009)

The defendant was convicted of several drug and money laundering crimes after being extradicted to the U.S. from Colombia in 2002. He was sentenced to 480 months imprisonment and to forfeit $110 million.  The Fourth Amendment does not apply to actions against foreign citizens on foreign soil. The Supreme Court has explained that a violation of the fourth Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.

The case did not warrant reversal.

The Court of Appeals stated that the defendant points out that he put into evidence handwritten notes identifying the owners of the cocaine aboard both vessels and that he was not one of them. Yet other evidence existed from which the jury could find defendant responsible for the cocaine aboard those vessels. And, again, there were three other predicate acts anyway.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure | No Comments »

Arrest was supported by probable cause, therefore irrelevant for Fourth Amendment purposes.

Monday, July 27th, 2009

U.S. v. Goings, 2009 WL 1927455 (11th Cir. July 7, 2009)

The defendant pleaded guilty to possession with intent to distribute crack cocaine. He then appealed, challenging denial of his motion to suppress and argued that the District Court erred by denying his suppression motion only on the ground that the arrest leading to the discovery of the evidence violated Florida law. However, the Court of Appeals ruled that the district court correctly found that, under the Supreme Court’s Moore decision, it was irrelevant for purposes of the Fourth Amendment whether a defendant’s arrest violated state law, so long as it was supported by probable cause.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

The law of the case doctrine did not apply to argument that prior state convictions were invalid.

Wednesday, July 22nd, 2009

Thomas v. U.S., 2009 WL 1856048 (11th Cir. June 30, 2009)

The ineffective assistance of counsel claim was not decided by “necessary implication.”

The defendant pled guilty to drug and weapon offenses and was classified as career offender for sentencing purposes. Defendant’s court-appointed counsel filed an Anders brief on direct appeal in which he argued that defendant had no basis for appeal and requested leave to withdraw. The defendant also filed pro se motion arguing ineffective assistance of counsel and that the District Court added criminal history points incorrectly. The court stated that ineffective assistance of counsel claims are generally not considered for the first time on direct appeal; and since the appellant’s claim that he was denied effective counsel was neither considered nor decided on his direct appeal, the law of the case doctrine does not bar its collateral review.

The law of the case doctrine also did not apply to argument that prior state convictions were invalid.

Similarly, neither the defendant nor his counsel presented the issue of his previous convictions on direct appeal or in the Anders brief and the government failed to cite any arguments to prove the state convictions were invalid. The Court of Appeals reversed the District Court’s denial of relief under Section 2255 based on the application of the law of the case doctrine with respect to both the ineffective assistance of counsel issue and invalid state conviction issue. The case was remanded for further proceedings.

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Posted in Ineffective assistance of counsel, Right to counsel, Sixth Amendment | No Comments »

The defendant’s conviction did not violate his right to keep and bear arms under the Second Amendment.

Wednesday, July 22nd, 2009

U.S. v. Tagg, 2009 WL 1856803 (11th Cir. June 30, 2009)

There was substantial evidence to support a reasonable jury conclusion that defendant intentionally facilitated codefendants’ unlawful possession of pipe bombs.

The defendant was convicted of aiding and abetting the unlawful possession of firearms, specifically, unregistered pipe bombs. He argued that he was only a spectator, however the co-defendant’s testimony was corroborated by an officer and agent and showed that the defendant knew that the codefendants’ made pipe bombs in his garage. This established that the defendant had the requisite mens rea.

The defendant’s conviction did not violate his right to keep and bear arms under the Second Amendment.

The court held that the pipe bombs at issue were not protected by the Second Amendment, as the rights given are not unlimited. Unlike handguns, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes.

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Posted in Uncategorized | No Comments »

Magistrate had authority to rule on defendant’s right to represent himself.

Tuesday, July 21st, 2009

U.S. v. Schultz, 565 F.3d 1353 (11th Cir. 2009)

The magistrate did not lack authority to rule on defendant’s request to represent himself.

The defendant was convicted of conspiracy to commit securities fraud and other white-collar criminal offenses. Case law holds that magistrate judges are authorized to hear and determine any pretrial matter. Moreover, it supports the position that magistrate judges have authority to decide motions for self-representation. The competency and knowledge requirements for waiving a right to conflict-free representation are substantially the same as the requirements for waiving the right to assistance of counsel entirely, which is pre-requisite to representing oneself.

The defendant’s counsel did not sufficiently appeal the magistrate’s order to the District Court.

Because the defendant’s attorney did not adequately appeal the magistrate judge’s order to the District Court, the Court of Appeals lacks jurisdiction to review the merits of the order. The attorney simply stated that he reasserted the defendant’s desire to represent himself. A single statement that does not refer to an order or challenge its reasoning is not specific enough or clear enough to permit a District Court to effectively review the magistrate’s ruling. The court dismissed this portion of the appeal.

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Posted in Jurisdiction, Procedure, Right to counsel, Sixth Amendment | No Comments »

The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.

Tuesday, July 21st, 2009

U.S. v. Sarras, 2009 WL 1661152 (June 16, 2009)

The defendant’s expert failed to show his expert’s methodology in comparing the defendant’s penis with the penis in sexually explicit photos was sufficiently reliable for admission on identification issue.

The defendant was convicted of persuading his step daughter to engage in sexually explicit conduct for taking photos of the conduct and for possession of child pornography. Though the defendant was separated from the mother, the child would stay in his house. At some point the step daughter went to authorities and reported that several times when the step daughter stayed at his house he began having oral sex and sexual intercourse with her and took digital photos of this and downloaded to his computer. After one mistrial, the defendant was convicted. At trial, Sarras argued that he was not the man in the laptop photos because he has a mole on his penis, and no mole was visible in the laptop photos. However, the government contended that no mole is visible in the laptop photos because they show only the top of the penis and that Sarras’ mole is actually near the bottom of his penis. The dispute at trial was the location of the mole on the Sarras’ penis. The defendant called a urologist to give his expert opinion but the trial court would not let him give his conclusion that the defendant’s penis was not the same as the one in the photos. The court ruled that the defendant had not shown that the “doctor’s methodology-comparing veins in erect penises was a sufficiently reliable identification technique for Dr. Ferdon to opine that Sarras was not the person in the laptop photos. In fact, no record evidence explains the so-called methodology of comparing veins in erect penises as an identification technique.”

The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.

The PSI calculated the guideline range as 30 to life but the statutory maximum was 30 years for three counts and 10 years for one count. (100 years). Under 5G1.2(d) the Guidelines call for a consecutive because the maximum on each count is less than the total punishment under the Guidelines, which the PSI determined was life. The Court upheld the Guidelines calculation and that because the sentence was within the Guideline, it was presumed to be reasonable.

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Posted in Computer Sex Crimes, Pre-Sentence Investigation Report, Sentencing Guidelines, kiddie porn | No Comments »

Defendant not entitled right to counsel for Section 3582(c)(2) motion.

Monday, July 20th, 2009

United States v. Webb, 565 F.3d 789 (11th Cir. April 13, 2009)

The District Court properly denied defendant’s §3582(c)(2) motion.

The defendant was convicted of drug charges in 2000 and his base offense level was 38 under the Guidelines Section 2D1.1(c). However, being a career offender and having a category VI criminal history, his guideline range was 360 months to life imprisonment. The court departed downward to 264 months. In 2008, the defendant filed a Section 3582(c)(2) motion to reduce his sentence based on Amendment 706 of the Sentencing Guidelines. The government also filed a second Rule 35(b) motion and the court reduced the sentence to 228 years. Although Amendment 706 lowered defendant’s offense level from 42 to 40, his amended guidelines range still remained 360 months to life and therefore the court had no authority to reduce the sentence. As such, the court did not need to examine the Section 3553(a) factors.

The defendant was not entitled the right to counsel for a Section 3582(c)(2) motion.

The Constitutional right to counsel does not extend to the statutory reduction motions because they are more like “a continuation of a criminal case” than a habeas petition. The decision to appoint an attorney is left to the discretion of the District Court and here, the court did not abuse its discretion.

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Posted in Right to counsel, Sentencing Guidelines, Sixth Amendment, downward variance | No Comments »

Bahamian wiretap did not shock the judicial conscience.

Monday, July 20th, 2009

U.S. v. Emmanuel, 565 F.3d 1324 (11th Cir. April 21, 2009)

The defendant, a Bahamian citizen, was arrested in 2006 and charged with conspiring to import cocaine into the U.S.; attempting to import cocaine into the U.S.; possessing with intent to distribute cocaine while on board a vessel of the U.S.; and two counts of importing cocaine into the U.S. The court determined that the “shock he conscience” standard was meant to protect against conduct that violates fundamental international norms of decency. As a Bahamian citizen, the defendant was not entitled to protections under the Fourth Amendment as he had no previous significant voluntary connection with the U.S.

The District Court did not abuse its discretion in failing to declare a mistrial or giving a curative instruction.

A government witness stated that he knew the defendant from signing in as a condition of his bail. The defendant argues that this statement prejudiced his rights. The court held that, in light of the substantial evidence against the defendant, it is unlikely that, but for the reference to his condition of bail, the outcome of the trial would have been different.

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Posted in Arrest Warrant, Conspiracy, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

The defendant was not entitled to notice of District Court’s intention to impose special conditions of supervised release.

Tuesday, July 14th, 2009

United States v. Moran, 2009 WL 1874374 (C.A.11 (Fla.))

The defendant appeals his conviction of being a felon in possession of a firearm.  The court was not required to notify the defendant before it imposed special conditions to address his proclivity for sexual misconduct. Said conduct was detailed in the PSI and knew the court would likely consider his criminal history in determining his sentence.

The District court did not abuse its discretion by imposing special conditions of supervised release.

The defendant’s history and characteristics support the imposition of mental health treatment as treatment could deter future misconduct and protect the public. He was also required to register as a sex offender, limit contact with minors, restrict his access to certain media including the internet, and submit to reasonable searches. Based on defendant’s past violation of his terms of supervised release, the District court was not improper to impose special conditions

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, Sex Offender Registration | No Comments »

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