Archive for the ‘Jurisdiction’ Category

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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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 »

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 »