U.S. v. Velez, 586 F.3d 875 (11th Cir. 2009)
On an issue of first impression for the Eleventh Circuit Court of Appeals, the Court held that the plain language of 18 U.S.C.A. § 1957(a) (f) (1) exempts monetary transactions derived from criminal proceeds and used to secure legal representation. In this case, the defendant, an accused Colombian drug leader, paid his legal defense fees with alleged laundered money. The government then indicted the defendant and his two attorneys on one count of money laundering charges. The District Court dismissed Count One, finding that 1957 (f)(1) clearly excludes from its scope, “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” The Government argued that the exemption was nullified by Caplin & Drysdale, Chartered v. United States,491 U.S. 617, 626 (1989). The Appellate Court disagreed finding that Caplin & Drysdale addressed criminal proceeds with respect to the civil forfeiture statute, 21 U.S.C. § 853 and therefore had no bearing on 18 U.S.C. §1957 and one’s representation guaranteed by the sixth amendment.
Archive for the ‘Sixth Amendment’ Category
Sixth Amendment guarantee of representation allows defendant to pay legal fees with alleged illegal proceeds.
Monday, January 11th, 2010The district court erred in failing to consider defendant’s claim for ineffective assistance of counsel.
Wednesday, November 25th, 2009RHODE v. U.S., 583 F.3d 1289 (11th Cir. September 29, 2009)
The Eleventh Circuit Court of Appeals vacated and remanded the district court’s denial of defendant’s pro se 28 U.S.C. § 2255 Motion to Vacate. The Court granted a Certificate of Appealability (COA) to determine if the district court was required to address all of the claims raised in the Section 2255 motion in light of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc). Construing the defendant’s claim liberally because it was a pro se pleading, the Court found that the defendant sufficiently raised an ineffective assistance of counsel claim on account of his attorney’s failure to file a motion to withdraw defendant’s guilty plea. The district court failed to address this claim and therefore the Eleventh Circuit court vacated the judgment and remanded it back to the district court for consideration of this claim.
The law of the case doctrine did not apply to argument that prior state convictions were invalid.
Wednesday, July 22nd, 2009Thomas 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.
Magistrate had authority to rule on defendant’s right to represent himself.
Tuesday, July 21st, 2009U.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.
Defendant not entitled right to counsel for Section 3582(c)(2) motion.
Monday, July 20th, 2009United 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.
Evidence sufficient to support conviction of defendant residing in a marijuana grow house.
Friday, April 24th, 2009U.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.
