Archive for the ‘Procedure’ Category

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Supervised release does not run during period of imprisonment unless period is less than 30 consecutive days.

Wednesday, November 25th, 2009

U.S. v. JOHNSON, 581 F.3d 1310 (11th Cir. September 2, 2009)

The defendant challenged his supervised release sentence revocation on the ground that he had completed his three years of supervised release prior to the date of the supervised release revocation petition. Defendant had transferred to a Virginia state facility, on detainer, to answer pending criminal charges, after release from serving his federal sentence. The defendant remained in state custody until he plead guilty in Virginia, was sentenced, released, and credited for time served under the detainer.
Subsequently, the defendant was arrested for fraud and forgery charges and Probation filed a petition to revoke his supervised release. At the revocation hearing, the defendant argued that the district court lacked jurisdiction because his three year supervised release term had already expired and the time in custody in Virginia did not toll that term. The district court disagreed and revoked his supervised release.
On appeal, the defendant argued that his three year supervised release term began running when he was released from federal prison. In its decision, the Eleventh Circuit relied on a Supreme Court decision in 2000 which held that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” United States v. Johnson, 529 U.S. 53, 57 (2000). The Court found the defendant’s Virginia sentencing order mandated two years imprisonment, which was more than 30 days. As such, the term of supervised release did not run during the time he was in state custody.

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Posted in Jurisdiction, Supervised Release Conditions | No Comments »

Supervised release does not run during period of imprisonment unless period is less than 30 consecutive days.

Wednesday, October 21st, 2009

U.S. v. JOHNSON, 2009 WL 2767048 (11th Cir. September 2, 2009)

The defendant challenged his supervised release sentence revocation on the ground that he had completed his three years of supervised release prior to the date of the supervised release revocation petition. Defendant had transferred to a Virginia state facility, on detainer, to answer pending criminal charges, after release from serving his federal sentence. The defendant remained in state custody until he plead guilty in Virginia, was sentenced, released, and credited for time served under the detainer. Subsequently, the defendant was arrested for fraud and forgery charges and Probation filed a petition to revoke his supervised release. At the revocation hearing, the defendant argued that the district court lacked jurisdiction because his three year supervised release term had already expired and the time in custody in Virginia did not toll that term. The district court disagreed and revoked his supervised release. On appeal, the defendant argued that his three year supervised release term began running when he was released from federal prison. In its decision, the Eleventh Circuit relied on a Supreme Court decision in 2000 which held that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The Court found the defendant’s Virginia sentencing order mandated two years imprisonment, which was more than 30 days. As such, the term of supervised release did not run during the time he was in state custody.

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Posted in Jurisdiction | No Comments »

District court erroneously dismissed first indictment containing error and sentenced defendant on plea to second indictment, violating the double jeopardy clause.

Wednesday, September 30th, 2009

US v. McIntosh, 2009 WL 2611294 (August 27, 2009)

The defendant pleaded guilty to an indictment alleging drug and firearm charges and the district court accepted the plea. However, before the defendant was sentenced, the government realized that the wrong date of offense was alleged in the indictment. It, therefore, secured a second indictment from the grand jury with the correct date. The defendant moved to dismiss this second indictment as barred by the Double Jeopardy clause, but the district court denied this motion. The defendant conditionally pleaded guilty to the second indictment. The district court then dismissed the first indictment, accepted the plea on the second, and sentenced the defendant to 120 months imprisonment. On appeal, the Eleventh Circuit determined that the defendant’s first plea, accepted unconditionally by the district court, was a conviction and jeopardy had attached therefore the second indictment for the same offense violated the Double Jeopardy clause. The appellate court found that the district court erred when it denied the defendant’s motion to dismiss the second indictment. Finding that the error in the original indictment was one of form, not substance, and thereby not fatally defective, the Court vacated the defendant’s judgment of conviction and remanded it back to the district court with instructions to dismiss the second indictment.

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Posted in Jurisdiction, Procedure, Resentencing, 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 »

Reasonable suspicion of drug transaction led to probable cause to arrest defendant for possession of methamphetamine.

Monday, July 13th, 2009

United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009)

The defendant was convicted of being unlawfully found in the United States after having been previously removed and deported.

The defendant was pulled over for violating a traffic law in an area well-known for narcotics activity, after an officer observed his car stopped in the roadway and someone leaning into the passenger window. When asked for his driver’s license, the defendant showed the officer a Mexican license and said he had resided in the U.S. for several years. The defendant consented to the search of his car and the officer found a bulb-shaped glass tube containing a white residue believed to be methamphetamine.

He was arrested for possession and booked, and an ICE agent assigned to the jail performed a preliminary computer search where he learned that the defendant was born outside of the U.S. The ICE agent told the defendant that his purpose was to determine his immigration status. After this meeting, the agent received the Immigration Action Query that was run as part of the jail’s ordinary booking procedure, which indicated that the defendant had been deported, removed, or excluded in 2003 and no record of a legal entry was found.

At the second meeting, the agent read the defendant his Miranda warnings in Spanish from a standardized form which the defendant signed. The agent questioned the defendant in Spanish for about ten minutes and gave the defendant a copy of all the questions and answers, which he again willingly signed.

The defendant was indicted on federal charges of having been unlawfully found in the U.S. after having been previously removed and deported. The defendant moved to suppress the statements made to the ICE agent regarding his immigration status and the documentary evidence obtained. A magistrate judge held an evidentiary hearing and issued and R&R concluding that the arresting officer violated the Fourth Amendment when he stopped the defendant’s vehicle because he did not have either probable cause or reasonable suspicion. The judge then recommended that the evidence obtained at the scene of the arrest be suppressed. However, the R&R concluded that the defendants subsequent statements and documentary evidence should not be suppressed.

The officer had reasonable suspicion that defendant was engaged in hand-to-hand drug transaction and had probable cause to arrest defendant for possession of methamphetamine.

The District court held that officer’s suspicion was supported by several articulable facts including the location of the vehicle, physically, and in a high-crime area, an unknown individual leaning into the window, and the defendant leaving the scene once he noticed the officer. Furthermore, based on the substance and paraphernalia recovered from the consensual search, the officer reasonable believed that the defendant was in possession of methamphetamine.

The District court correctly concluded that the statements made to ICE agent were too removed from arrest to have suffered any taint.

Since the defendant’s seizure and arrest were not found to be unconstitutional , the fruit of the poisonous tree argument fails. In the alternative, even if the statements were tainted, they were too attenuated from the arrest to be regarded as fruit of the poisonous tree: the statements were made the day after the arrest; the arrest and questioning were done by two different individuals with two different objectives-immigration status and suspected drug activity; and neither the stop of the vehicle nor the immigration inquiry were made with an ulterior motive to prosecute the defendant for being illegally in the U.S.

The District court did not err in imposing the Guideline’s sixteen offense-level enhancement.

The defendant, prior to his removal, had a conviction for a felony firearms offense in Georgia, which, he argues, does not fall within the Guidelines 2L1.2 definition. The Court of Appeals found that the prior conviction met the Guidelines definition; and based on the facts set forth in the PSI, the District court correctly concluded that the defendant’s conduct from the previous conviction would have constituted a violation of Section 924(c) and therefore, the court was correct to impose the sixteen offense-level enhancement.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search and Seizure, Search incident to arrest, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

Extraterritorial application of 18 USC Section 2251 warranted as part of a comprehensive scheme to eradicate sexual exploitation of children.

Wednesday, June 10th, 2009

United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.

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Posted in Computer Sex Crimes, Fourth Amendment, Internet Crime, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search Warrant, Search and Seizure, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

A subject matter jurisdictional question is not waived by a guilty plea.

Monday, May 4th, 2009

U. S. v. BETANCOURTH, 07-14710, (January 13, 2009)

The defendant pled guilty to conspiracy to possess with intent to distribute five kilograms of cocaine and to possession with intent to distribute five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. § 70501.

Prior to the plea, the defendant moved to dismiss the indictment arguing that the government could not prosecute him because the Equadorian government had not consented to the exercise of jurisdiction over the Equadorian vessel which the United States government had seized. The district court found that Ecuador did consent to the United States’ exercise of jurisdiction.

On appeal, the Eleventh Circuit determined that because the defendant entered an unconditional plea, this ordinarily would have waived the issue, however a subject matter jurisdiction challenge that can not be waived by a guilty plea. Nevertheless, the Court found the district court was correct.

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Posted in Conspiracy, Jurisdiction | No Comments »

Search that uncovered a gun between mattress and box spring upheld as reasonable because it was within the grab area of two individuals who were present in the apartment where the defendant was arrested pursuant to an arrest warrant.

Wednesday, April 29th, 2009

United States v. Bennett, 555 F.3d 962 (January 21, 2009)

The defendant was convicted of possession of a firearm by a convicted felon. During the course of executing an arrest warrant for Bennet at his apartment, the police conducted a protective sweep of one of the bedrooms in the apartment, occupied by Bennet’s brother and a friend, where they found a rifle between a mattress and box spring. The defendant moved to suppress arguing that the search “improperly expanded the scope of their protective sweep outside Bennett’s grab area.” The Eleventh Circuit upheld the search finding that the agent had a reasonable belief that the brother and friend could be dangerous and both had been moved to the bed by the agent. It was reasonable for the agent to lift the mattress as a safety precaution since the officer was not familiar with what objects may have been in the room, as the boys may have been, and the mattress was properly within the limited grab area of both young men.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Procedure, Search and Seizure, Search incident to arrest | No Comments »

Imposition of maximum sentence of 10 years was not an unreasonable upward variance from 30-37 months in order to protect the public from further criminal activity by the defendant.

Monday, April 27th, 2009

U.S. v. SHAW, 2009 WL 510323 (11th Cir. March 3, 2009)

The defendant appealed for his statutory maximum sentence of 120 months for possession of a firearm by a felon, claiming it was an unreasonable upward variance from the sentencing guidelines range of 30 to 37 months. Predictably, the outcome was not good for Mr. Shaw, as three sentences into the opinion Judge Carnes described his rap sheet as “long enough to require extra postage.” The Court applied a two-step process for reviewing this upward departure. First, determining whether the district court committed a significant procedural error (e.g. improperly calculating the guidelines range, treating the guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts or failing to adequately explain the chosen sentence, including any deviation from the guidelines.) If the first step is met, the second step is to review the sentence’s “substantive reasonableness under the totality of the circumstances” including “the extent of any variance from the Guidelines range.” Quoting from Gall v. United States 128 S. Cr 586, 597 (2007). After discussing Shaw’s lengthy prior criminal history and his continued recidivism, the appellate court upheld the sentence as reasonable given the district court’s wide latitude, reasoning that the defendant had many chances and the public needed to be protected from Shaw’s further crimes.

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Posted in Procedure, Sentencing Guidelines, upward variance | 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 »

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