Highlights from the Eleventh Circuit court of appeals

Even though she never handled any drugs, evidence was sufficient to convict the wife of participating in husband's drug conspiracy

April 12, 2014,

Reeves and five codenfendants in U.S. v. Reeves were convicted following a nine day trial of federal drug charges including conspiracy to distribute more than five kilograms of cocaine, possession of more than 50 grams of crack cocaine, and possession of a firearm by a convicted felon. The indictment followed nearly one year of investigation by the Georgia Bureau of Investigation and the Drug Enforcement Agency into the drug activities of individuals involved in drug distribution in the area of Baldwin County, Georgia. Agents used video surveillance and court ordered wiretaps to determine that numerous coconspirators were involved in large scale cocaine distribution network starting from a Mexican supplier of large quantities down to low level distributors of small quantities.

Reeves challenged his conspiracy conviction arguing that the facts showed he and his coconspirators were not part of a single criminal agreement but rather he just bought and sold cocaine in the ordinary course of several discrete agreements. The court rejected his arguments finding that he regularly purchased from one coconspirator and repeatedly sold to the same street-level distributors was more than adequate evidence for the jury to find a single overarching conspiracy to possess with intent to distribute cocaine. Reeves' codefendant wife argued the evidence was insufficient to convict her of the conspiracy particularly because there was no evidence she personally distributed drugs. The court of appeals disagreed on the basis of the tape recorded telephone conversations presented at trial showing her knowledge of the cocaine conspiracy. Those conversations showed that a reasonable jury could find that the wife knew there was cocaine hidden in the house, that she agree to dispose of it after coconspirator was arrested, and that she tried to conceal the conspiracy by falsely tell the police that her codefendant husband lived at another address.

Another issue the wife raised was the admission of telephone recordings without proper authentication. The court of appeals found there was plenty of evidence establishing her voice on the recordings, including testifying on her own behalf in which she acknowledged speaking on the phone and identifying her own voice.

The wife also claimed that the agent who arrested her commented on her right to remain silent when asked an open ended question by the prosecutor about the post arrest interview. In relating the questions and answers, at one point in the interview he commented that the defendant "hesitated for a minute, and she said well I think I might need to talk to a lawyer..." The defendant's counsel immediately objected. The court of appeals found no fifth amendment violation because the agent was responding to an open ended question about her discussion with the defendant and the comment does not appear to have been intended to be a comment on her exercise of the right to remain silent. "A single inappropriate reference to a defendant's post arrest silence that is not mentioned again is too brief to constitute a Fifth Amendment violation."

The defendants also raised the issue of the prosecutor's deliberate and repeated misstatements in closing argument. The court of appeals found that three of the prosecutor's statements could be deemed "improper" but they do not "affect [the defendant's] substantial rights because there isn't a probability that, but for the remarks, the outcome of his trial would have been different."

Secretary of State Certification showing that a drug laden vessel found in international waters was stateless does not violate the Confrontation Clause

March 30, 2014,

In U.S v. Campbell the defendant was indicted for conspiracy to possess and for possession with intent to distribute 100 kilograms or more of marijuana in violation of 46 U.S.C. § 70501 after he was arrested by Coast Guard on a vessel in international waters. The Coast Guard had earlier observed the vessel off the coast of Jamaica with three individuals aboard discarding dozens of bale in the water that the Coast Guard later determined were about 997 kilograms of marijuana. The Coast Guard determined the vessel lacked indicia of nationality because it lacked a flag, port, or registration number. The captain claimed the vessel was registered in Haiti. When the Coast Guard contacted the Republic of Haiti about whether the vessel was of Haitian nationality the response from Haiti was that it could neither confirm nor deny the registry. In a pretrial motion to dismiss on jurisdictional grounds, the defendant argued the certification of the Secretary of State to establish extraterritorial jurisdiction for prosecution violated the defendant's right under the Confrontation Clause and there was insufficient evidence to prove that the defendant was aboard a vessel subject to the jurisdiction of the United States. The defendant was convicted following a bench trial where he stipulated to the material facts.

In the first issue raised, defendant argued the admission of the certification of the Secretary of State without the ability to cross examine a Haitian witness violated his right under the Confrontation Clause. The Eleventh Circuit found the stateless nature of the vessel was not an element of the offense to be proved at trial and the admission of the certification did not violate his right to confront the witnesses at trial. The Confrontation Clause does not bar the admission of hearsay to make a pretrial determination of jurisdiction when it is not an element of the offense. The Confrontation Clause protects a defendant's right to confront testimony offered against him to establish guilt, and the Supreme Court has never extended the reach of the Confrontation Clause "beyond the confines of a trial.

In the second issue the defendant argued that the Fifth and Sixth Amendments require a jury to determine whether extraterritorial jurisdiction exists. The Eleventh Circuit rejected this argument in find that the issue of jurisdiction was preliminary to trial because the issue whether the boat was seized within the prescribed limit did not affect the right of the court to hold the person for trial. It only affect the question of guilt or innocence.

Third, the defendant argued the Secretary of State certification lacked details of the communication between the Coast Guard and Haiti and there was no testimony to corroborate the certification. The Eleventh Circuit found the certification provided conclusive proof that the vessel was within the jurisdiction of the United States.

Fourth, the defendant argued that Congress exceeded its authority under the Felonies Clause when it enacted the Maritime Drug Law Enforcement Act because the defendant's drug trafficking lacked any nexus to the United States and because drug trafficking was not a capital offense during the "Founding era." These arguments were foreclosed by Eleventh Circuit precedents which held that Congress has the authority to extend criminal jurisdiction of the U.S. to any stateless vessel in international waters as an exercise of its power under the Felonies Clause.

Prior felony convictions which enhance a sentence are not elements of an offense that need to be submitted to a jury

March 16, 2014,

The defendant in U.S. v. Harris was convicted of three counts of a Hobbs act robbery and four counts relating to possession and use of firearms during those robberies. Under federal sentencing laws, his prior convictions for violent crimes resulted in a life sentence of imprisonment and a consecutive sentence of 57 years. In this appeal Harris challenges the imposition of a mandatory life sentence without a finding by a jury as to the fact of his prior convictions. He argued that this is inconsistent with Alleyne v. U. S. He also challenged the constitutionality of 18 USC § 3559(c) which provides for a mandatory life sentence for persons convicted of certain felonies. He argued that the statute impermissibly removes the sentencing discretion from the courts and delegates it to the executive branch.

Following a 3-day trial the defendant was convicted of three Hobbs act robberies and for using a firearm during those robberies. Because he had prior felony convictions for robbery with a firearm and a battery and law enforcement officer, the defendant qualified for the career offender enhancement under sentencing guidelines § 4B1.1. Also, under 18 USC 3559(c), a defendant convicted of a serious violent felony and previously been convicted of a combination of two or more serious violent felonies or serious drug offenses is subject to a mandatory sentence of life imprisonment. Because the defendant met those criteria, the district court imposed of the statute early mandated life sentence and also impose a consecutive 57 year sentence.

On appeal the defendant argued that his mandatory life sentence is inconsistent with the U.S. constitution as interpreted by the Supreme Court in Alleyne. He argued that the Supreme Court stated in Alleyne that any fact that increases the penalty for that crime is an element that must be submitted to the jury and found beyond a reasonable doubt. The court rejected this argument based on the Apprendi decision, which held that "other than the fact of a prior conviction, any fact that increases the penalty for crime beyond the prescribed statutory maximum must be submitted to a jury in proved beyond a reasonable doubt." The Supreme Court in Alleyne did not address the specific question at issue here: whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That issue is still governed by Almendarez-Torres v. U. S. which states that the fact of a prior conviction is not an element that must be found by a jury. Applying the Apprendi and Amendarez-Torres decisions, the 11th Circuit held that the district court did not commit error by imposing a mandatory life sentence without any jury findings about the existence of the defendant's prior convictions.

The other contention raised by the defendant was that the mandatory life sentence under these two statutes violates the delegation of powers doctrine and separation of powers principles of the U.S. constitution. He argued that the mandatory life sentence is applied only if the government chooses to file a notice a prior convictions under § 851. But the court rejected the argument finding that there is no separation of power violation because the power of a prosecutor under the statute is no greater than the classic power of the executive to choose between charges caring different mandatory penalties and other circuits have agreed that section § 3559(c) does not the constitutional separation of powers.

Sentencing enhancement reversed where defendant was not aware of an FTC judgment against him for deceptive practices

March 15, 2014,

In U.S. v. Mathauda the defendant was convicted of conspiracy to commit mail and wire fraud in violation of federal criminal law. The case arose from his operation and of a business offering fraudulent business opportunities. From a call room in Costa Rica, the defendant would entice victims by advertising business opportunities in the United States. Toll free numbers connected people to the call center where promotional materials were sent and interested persons were connected with the co-conspirators posing as references who claimed to make money through the defendants companies. The defendant made millions of dollars from victims.

The one issue that the court considered an appeal was whether the district court erred in adding a two level sentence enhancement and for violation of a prior court order. Prior to the criminal case, the defendant was the subject of a civil action brought by the Federal Trade Commission. The FTC complaint alleged he was involved in unfair and deceptive acts and commercial practices. After the complaint was served on the defendant, he received a copy of a temporary restraining order. In response he hired an attorney to represent him in the case and in the meantime you continue to operate his conspiracy. Unknown to the defendant his attorney did nothing about the FTC case and had a default judgment was entered against him.

At sentencing, the presentence investigation report and recommended a two-level enhancement against a defendant, based on a knowing violation of a prior the judicial order. The defendant objected and claiming that he retained counsel and did not know his attorney failed to respond and that a default judgment had eventually been entered against him. He did not know that he had been judicially ordered to cease his fraudulent activity. The government argued that the enhancement was proper up because the defendant was willfully lying to the court's order and that willful blindness to an order constitutes knowledge of the order.

Whether willful blindness satisfies the knowing requirement of the guideline section is an issue of first impression for the 11th Circuit. The court compared the facts hear to the facts in U.S. vs. Bisong, a case out of the District of Columbia, which held that the sentencing enhancement was proper despite a defendant's alleged lack of knowledge of the order because the defendant was willfully blind to the order which he had violated. The 11th Circuit agreed that an enhancement for willful blindness is proper if the defendant purposely contrived to avoid learning of the facts where the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming the fact. The facts in this case do not support willful blindness because the defendant did retain in an attorney and his attorney did nothing in the case. Unlike Bisong, the defendant was not an active participant in the FTC proceedings and had no knowledge of what happened in those proceedings.

Three separate warrantless searches of defendant's residences survive Fourth Amendment challenges

March 10, 2014,

The defendant in U.S. v. Yeary was convicted of the federal crimes of conspiracy to possess controlled substances with intent to distribute and with possessing multiple firearms. This appeal centers around the district court's denial of his motion to suppress evidence under the Fourth Amendment, which was seized by police in three warrantless searches of his residences on three different occasions. In the first search law enforcement officers came to a condominium he shared with his girlfriend with a warrant for his arrest. When the girlfriend opened the door, the agents saw the defendant behind the girlfriend and noticed a black handgun on a table next to the defendant. The defendant was arrested and removed from the house. When asked if others were in the house, the girlfriend said there were two other people so the officers did a protective sweep of the house where they discovered drugs and firearms in plain view. The court of appeals upheld the search on the grounds that the search was a valid protective sweep based on the girlfriend's statements that other individuals may be in the house because they had a reasonable basis to conduct a limited protective sweep. During that sweep deputies discovered contraband in plain view and on this basis the search was valid.

The second search took place while the defendant was on bond under house arrest pending trial on felony charges in Palm Beach county circuit court. A condition of his house arrest was that his residence could be searched at any time without prior notice and without warrant. When law enforcement received an anonymous tip that he was still selling drugs out of his residence, officers went to his residence and conducted a search leading to the discovery of drugs and a firearm. The court upheld the search of these from on the grounds that he agreed to a warrantless search of his residence as a condition of his house arrest bond. The constitutionality of the search depends on the validity of the defendant's consent. Under the totality of the circumstances the evidence is clear that defendant knowingly consented to the search of his house and agreed to the condition that he would allow his house to be searched 24 hours a day. He acknowledged this condition prior to signing a waiver of any objections to a warrantless search. The court found his consent was no different than any other voluntary consent search.

The third search took place after a warrant was issued for his arrest for the Federal indictment. Law enforcement agents went to the defendant's residence where they found his girlfriend. She gave them permission to enter the house and inside the residence the officers found drugs and more weapons. The court upheld the search on the grounds of the voluntary consent given by the girlfriend. The evidence showed that law enforcement officers believed that the girlfriend had authority to give the consent to search and reason to believe her consent was given freely and voluntarily.

No Fourth Amendment violation by police for placing a warrantless tracking devise prior to the Supreme Court's prohibition

March 6, 2014,

In U.S. v. Ransfer, the defendants were convicted of a Hobbs Act violations, and the use and carrying of firearms during the commission of a violent crime. The first issue the defendants raised in challenging these federal criminal convictions was the admission of evidence resulting from the installation and use of a GPS tracking device without a warrant. It used to determine the location of a Ford expedition that was used in the commission of several robberies. The defendants relied on U.S. vs. Jones, a 2012 Supreme Court case stating that installing a GPS tracking devise on a vehicle and tracking the vehicle's movement was a search under the fourth amendment and required a warrant. The police installed the tracking device on May 27, 2011, before the Jones decision was issued in 2012. Prior to the Jones decision the prevailing law in the 11th circuit said that law enforcement officers did not violate the Fourth amendment by placing a tracking device on vehicle parked in a public place and to track the vehicles moment on public roads if the officers that reasonable suspicion to initiate surveillance of the vehicle. The Eleventh Circuit found that the officers were in good faith and it was reasonable for the officers to rely on long standing precedent in attaching the GPS without a warrant by installing electronic tracking device of vehicle without a warrant. Because there was clear precedent in the 11th circuit stating that the police did not violate the fourth amendment, the search was not subject to the exclusionary rule.

In their second issue, the defendants challenged the lead an officer's testimony on grounds that it was hearsay. The officer testified about the identities and their suspicious activities from information learned from out of court sources. The court concluded that his testimony was based on his investigation review of a complex investigation in which he supervised a months-long endeavor to identify and locate the perpetrators of this series of armed robberies. His statements were not offered to rehabilitate any witness. Instead he was merely providing a summary of the investigation and his background information shed light on why the officer conducted the investigation in the manner that he get even if it was an error it was not reversible because the evidence about which he testified was otherwise admissible on the record.

The defendants challenge the convictions on the basis of sufficiency of the evidence. All of the convictions were affirmed except for the robbery of a specific CVS for one defendants, which was reversed. The court found the evidence was insufficient to prove one of the defendants was involved in this particular robbery because the evidence supporting his conviction in the other robberies was absent here. There was no evidence he was ever in the CVS or that he did anything prior to or during the robbery to further the crime.

The court decided these miscellaneous issues:

It found there was sufficient evidence of interstate commerce to convict under the Hobbs Act.

The exclusion of a medical expert witness showing that a defendant could not have caused injury to one of the law enforcement officers was not an abuse of discretion. The defendant wanted to show the defendant was beaten upon his arrest and to question the reliability of the post arrest statement.

The court upheld a challenge to a 20 minute closing for each attorney. The defense failed to show any prejudice as a result of this time limitation.

The challenge to the Metro PCS records custodian regarding cell tower activity was rejected on the grounds that the witness testimony was not expert testimony.

Attorney's failure to comply with deadline was fatal to the sentencing objections

March 5, 2014,

In U.S. v. Edwin Aguilar-Ibarra the defendant was convicted of a conspiracy to commit a Hobbs Act robbery, which is a federal crime under 18 U.S.C. 1951. The facts of this conviction arose from a robbery of a Florida warehouse by four masked man brandishing pistols. The intruders bound gagged and force the warehouse employee into a warehouse into a back office where they assaulted him the assailants took off with one million dollars' worth of cellular phones. The defendant's presentence investigation report recommended a two-level of his sentencing guideline section 2B3.1(b)(3)(A) because the robbery victim sustained bodily injury. The presentence investigation report recommended the enhancement because the warehouse employee went to the hospital suffering minor injuries as a result of the assault.

The defendant did not file the objections within the 14 days required by Federal Rule of Criminal Procedure 32 (f)(1). The defense attorney objected to the enhancement at sentencing arguing there was no evidence the employee sustain bodily injuries and claimed the enhancement had not been applied that the co-conspirators sentencing. At sentencing the probation officer confirmed that the co-conspirators did receive the enhancement at their respective sentencing hearings.

On appeal the defendant argued that the district court erred in rejecting his objection to the bodily injury enhancement as untimely. The defendant claimed that the time limit was an applicable here because he and the government agreed the enhancement should not apply. In any event, the court exercised its discretion to waive the timeliness requirement by reconsidering and ruling on the merits of the objection.

Rule 32 requires that within 14 days of receiving the PSI the parties must date in writing any objections to the sentencing guideline range. The court may extend the 14 day deadline for good cause. The appellate court found that the defendant did not comply with a 14 day deadline, and the court also rejected the defendant's argument that the deadline was not applicable because the parties agreed that the bodily injury enhancement could not apply. The rule provides any objections to the presentence investigation report, whether or not they are shared by the parties, must be submitted in advance of sentencing. The court explained the reasons for the timely objection is to allow the district court the opportunity to meaningfully exercise its sentencing authority based on complete and accurate account of all relevant information. The deadline is meant to facilitate the process by ensuring the probation officer has sufficient time to investigate and resolve any potential inaccuracy is in the PS I regardless of whether those inaccuracy is are perceived by one or both parties. The district court has an independent obligation to calculate the sentencing guidelines correctly and is not bound by the agreements of the parties.

The defendant did not show good cause for failing to raise an objection to the bodily injury enhancement and the court did not waive the timeliness requirement. The appeal from the enhancement was viewed on a plain error standard and the court found that the enhancement was not plainly erroneous.

Prior armed bank robbery was admissible under Rule 404(b) and disruptive Defendant waived his right to be present at trial

December 20, 2013,

The Defendants in U.S. v Sterling appealed their federal criminal convictions for 1) armed bank robbery, 2) use of a firearm during and in relation to a crime violence, and 3) possession of a firearm by a convicted felon. On appeal the defendant's challenged the admission of their prior convictions admitted pursuant to Rule 404(b). The facts of the robbery reveal that a masked man vaulted over the teller counter at a bank in Smyrna, Georgia and robbed the bank using a silver handgun. The man exited the band and disappeared from the view of witnesses. Another man was seen removing a piece of paper covering the license tag of a vehicle while leaning over the trunk. Later the police found a car matching the description of the getaway car driven by one of the defendants but the suspected bank robber was found. After the vehicle was towed and impounded by a towing company, the tow truck driver saw a man matching the bank robber's description lying on the flatbed next to the open backseat door of the car. In the trunk, police found a bag with clothing matching the description of the bank robber's clothing as well as a silver firearm.

The 404b evidence stemmed from a bank robbery in 1995 where both defendants were convicted of the robbery. The Court applies a 3-part test to determine the admissibility of evidence or prior crimes under Rule 404(b):
1. The evidence must be relevant to an issue other than the defendant's character.
2. Sufficient evidence must be presented to allow a jury to find that the defendant committed the extrinsic act.
3. The probative value of the evidence must not be substantially outweighed by its undue prejudice.

The jury was told it could consider the evidence for the purpose of intent, plan, preparation, and lack of accident or mistake. The court found the evidence of the prior crime was admissible because it involved both defendants robbing a bank together using a gun in the commission of the felony.

One defendant claimed his right to be present a trial under Federal Rule 43 was violated. This defendant announced that he did not want anything to do with the trial. He did agree to speak with the court in an interview room with attorneys and the court reporter present. The judge advised the defendant that his repeated interruption would result in his being labeled a disruptive defendant and removed from court, and his continued actions would be deemed a waiver of his right to be present at trial. After the district judge found to be a disruptive defendant, the court reconvened in the courtroom and the judge stated that the defendant had waived his right to present. The trial continued without his presence though the judge provided a live video feed of the proceedings and his counsel was permitted to meet with him during the breaks. Rule 43 requires that the defendant voluntarily absent "after the trial has begun." The defendant argued that the under the trial process had not begun since the judge did not bring him in front of the prospective jury to advise him that the trial was beginning. The Court found that the trial began on the day of jury selection without respect to whether the defendant is present at the time prospective jurors enter the courtroom.

Government not required to show subjective intent to commit harm for a threatening communication conviction

December 14, 2013,


In U.S. v Martinez the Defendant appealed her federal criminal conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. The threat came when a talk show host at a Ft. Lauderdale radio station received an anonymous email that expressing support for the second amendment gun rights, and the anonymous sender said he was planning something big around a government building, a post office "maybe even a school, I'm going to walk in and teach all the government hacks working there what the 2nd amendment is all about.." Several hours later an anonymous woman called the station telling them that her husband sent the email, that he was mentally ill, and that he was now planning to open fire at a nearby school. The anonymous woman implored the station to broadcast a plea asking her husband not to carry out the shooting. The phone call resulted in a lockdown of all Broward County schools. After investigators discovered the anonymous calls were sent by the defendant, she was indicted for making a threat in violation of § 875(c). She pleaded guilty reserving the right to appeal her challenges to the statute.

Martinez claimed the indictment was insufficient because it did not allege Martinez subjectively convey a threat to injure others. She argued that the Supreme Court's decision in Virginia v. Black drew the distinction between true threats and First Amendment protected speech based upon the speaker's subjective intent, and therefore a conviction required proof the defendant subjectively intended to make a threat. In Black, the Supreme Court addressed a state statute making it a crime to burn a cross with the intent of intimidating any person or group. Martinez argued that Black imported a subjective-intent analysis into the true threats doctrine. In rejecting Martinez' argument the Eleventh Circuit found that prior to Virginia v. Black, the Supreme Court did not require a subjective analysis for true threats, rather the threats are evaluated on a the objective characteristics of the speech and the context in which it was made. Most federal courts defined true threats according to an objective standard. The Eleventh Circuit found that the Supreme Court's decision in Virginia v. Black was based on the overbreadth of a specific statute and not whether all threats are determined by a subjective or objective analysis. The Eleventh Circuit concluded that to be convicted under § 875, Martinez need not subjectively intent to her statement to be a threat.

Martinez also argued that § 875(c) was unconstitutionally overbroad because it did not require the Government to prove the speaker subjectively intended her statements to constitute a threat. The Eleventh Circuit found no merit in this challenge. The actus reus of the statute is transmitting a true threat and a true threat is determined from the position of an objective, reasonable person. Section 875(c) is silent as to mens rea and does not require and showing of specific intent. The statute is a general intent offense that requires the government to show the defendant 1) transmitted a communication knowingly, and 2) that the communication would be construed by a reasonable person as a serious expression of an intent to inflict harm. It does not require the Government to prove a defendant specifically intended his or her statements to be threatening.

Prior state court sentence was an aggravated felony but dissent disagreed

November 23, 2013,


In U.S. v. Garza-Mendez, the defendant pleaded guilty to the federal crime of reentry after deportation by an aggravated felon in violation of 8 U.S.C. §1326(a). His deportation resulted from a prior conviction under a Georgia-family-violence-battery statute for striking his girlfriend. In that case, he was sentenced to confinement to 12 months, but the state judge gave him credit for 30 hours of time served and permitted him to spend the rest of his sentence on probation. Prior to his sentencing, Garza-Mendez sought clarification of his sentence from the Georgia court and Judge Pamela Smith issued a clarification order stating that Garza-Mendez was sentenced to 12 months of probation with the first 30 hours to be served in custody. The clarification stated that "the court did not sentence Defendant to 12 months of incarceration." The judge who issued the clarification was not the same judge that sentenced him five years earlier. At his federal sentencing for the reentry offense, Garza-Mendez argued that the clarification order showed that he had not been sentenced to 12 months of imprisonment and that he should not receive an 8-level increase in guidelines under USSG § 2L12(b)(1)(C) for the prior Georgia conviction. The district court denied his objection and gave him the increase. The district judge also denied his request for a variance for cultural assimilation and imposed a reporting requirement from Mexico as a special condition of his supervised release. He appealed the 8-level increase, the denial of cultural assimilation and the reporting requirement.

In this appeal he argued that he should not have an 8-level increase because the sentence was not 12 months of confinement. Under USSG § 2L12(b)(1)(C) a defendant who was previously deported defendant and has a conviction for an aggravated felony is subject to the 8-level increase. An aggravated felony is defined as a crime of violence in which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43). The the majority of this panel disagreed for several reasons. First, it found that the state judge who issued the clarification order was not the sentencing judge. Second, the state judge did nothing more than review Garza-Mendez's August 30, 2007 sentence to issue the clarification order. Third, the August 30, 2007 sentence was clear that Garza-Mendez' was sentenced to 12 months of confinement. The court pointed to a prior Eleventh Circuit case, U.S. v. Guzman-Bera, which held that a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. The court determined that the issue involves interpretation of the sentencing guidelines and a federal judge is in a better position to interpret the effect the state sentence order has on the Garza -Mendez' federal sentence.

The defendant made a cultural assimilation departure argument pursuant to USSG § 2L1.1 arguing that his parents brought him when he was 7 to the United States, learned English and attended schools in Atlanta. The district court's reasoned that his poor criminal record, both before and after his deportation, had outweighed the other 3553(a) factors and the court of appeals upheld the district court's decision.

The dissent strongly criticized the majority for failing to show deference and comity to the state court in a case where it would benefit the defense. "This case of course presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The majority's refusal to credit the State Court's clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in harsher sentence for criminal defendants."

No suggestive identification procedure where the police did not cause prior viewings

November 20, 2013,

In U.S. v. Elliot, the defendant was convicted of the federal crime of robbery and brandishing a firearm during and in relation to a crime of violence. The district court in Alabama imposed a life sentence after determining that two of his prior felony convictions qualified him for a career enhancement under the federal sentencing guidelines, U.S.S.G. §4B1.1. On appeal Elliot challenge a photo lineup on grounds that it was unduly suggestive because there was a substantial likelihood existed that the witness's eyewitness identification was not based on her own independent recollection, but instead was tainted by her observation of photos of him on the internet, on printed flyers, and on a portion of a surveillance videotape. The Eleventh Circuit federal court of appeals found no federal due process violation because the photo lineup arranged by the police was not suggestive. The lineup contained photographs of the defendant and five other men who were selected by a computer program for their physical similarities to the defendant. The officer conducting the lineup did not suggest which person should be picked not did he pressure the witness to pick anyone. Furthermore the police had no involvement in the witness' independent viewing of Elliot's photos at the store or on the internet, or the surveillance video.

Prior youthful offender conviction qualified for career offender status.

One of Elliot's prior convictions arose when he was 20 years old when he robbed a man of $150 and a pack of cigarettes while armed with a pistol. He was charged with a first degree robbery and received a youthful offender adjudication and placed on probation. He violated probation with a subsequent robbery. He argued on appeal that his youthful offender adjudication does not qualify for a conviction under the career offender provision of 4B1.1 because under the Alabama youthful offender adjudication cannot be counted under Alabama law. The Alabama law youthful offender Act applies to anyone who is under the age of 21 at the time the offense was committed.

Under section § 4B1.1(a) of the sentencing guidelines a defendant is a career offender if he was at least 18 years of age at the time of the instant offense; the instant offense was a felon y that is either a crime of violence or a controlled substance offense; and he has at least two prior felony convictions for crimes of violence or a controlled substance offense. Section 4B1.2(c) of the guidelines states that the conviction may arise from a guilty plea, a trial, or a plea of nolo contendere. Because Elliot was 20 years old when the offense was committed, there is no need to resort to state law to determine whether the adjudication qualified him as an adult conviction. The court also found that even though Elliot entered a plea of nolo contendere and adjudication was withheld, the prior conviction was a "conviction" for the purpose of the sentencing enhancement. The federal court is not bound by the fact that Alabama law does not consider a youthful offender adjudication to be a conviction. Though Elliot was a youthful offender and not considered convicted under Alabama law, he sustained a conviction under the career offender enhancement.

Evidence sufficient to convict defendant of running a fraudulent business but not sufficient to prove more than 10 victims

November 14, 2013,

The defendant in U.S. v. Rodriguez was convicted and sentenced to 120 months for conspiracy to commit the crime of federal wire fraud. He raised two issues on appeal. First he argued the evidence was not sufficient to support the conviction. The evidence at trial showed that from 2003 through 2007 Rodriguez owned and operated four different companies that sold coffee machines and other vending machines to the public. His companies tried to generate sales by posting ads on the internet seeking investors looking to a own their own small business by offering investment in new coffee machine, vending machine or drinking water machine. Rodriguez or his associates induced customers to buy products by offering a number of guarantees. Sales people would routinely guarantee the amount of money that customers would make each day and how quickly they would recoup their money. They promised to provide advanced marketing analytics to secure high-end locations where machines would have plenty of potential patrons. The companies also promised technical support and assistance and if not satisfied they could return the machines for a full refund. These guarantees were too good to be true. The machines arrived in months rather than weeks, if they arrived at all. When they did arrive, many customers found they did not work or they cost more to operate than they had been advertised. The locations the machines were placed in were in remote locations rather than high-end venues and they could barely cover their operational costs. Many customers testified their machines generated zero profits or substantial losses. None said they were able to recoup the cost of the initial investment. When they asked Rodriguez for help with the machines, there was no technical support as promised. Rodriguez almost never honored the money back guarantee when customers asked for a refund. Furthermore, the evidence showed that Rodriguez knew that this was happening and yet he continued to sell the machines to customers and guaranteed profit figures he knew were not real. Even after receiving a cease and desist order from the Maryland Attorney General, he created new companies selling different machines. While trying to hide his ties to the earlier companies from his prospective customers.

To support a conviction for wire fraud the evidence must show the defendant intentionally participated in a scheme to defraud another of money or property and used or caused the use of wires for executing the fraud. Evidence to sustain a conspiracy conviction requires proof the defendant knew and willfully joined the unlawful scheme to defraud. While puffing or sellers talk is not a crime under the federal fraud statutes, fraud requires proof of a material misrepresentation or the omission of a material fact calculated to deceive another out of money or property. The evidence showed Rodriguez did not simply puff up the profitability of his machines to prospective customers, rather he made material misrepresentations of fact in the course of an ongoing scheme to defraud. Rodriguez guaranteed specific profit figures and provided a definitive time for when his customers would recoup their investments, and he did this knowing his representations were completely unfounded. He knew his sales associates did no research on the placement of the machines and placed them in haphazard locations. He was not just overstating the facts to sell his product but he was actively concealing relevant information from potential customers. This type of federal crime is commonly prosecuted in Miami and the Southern District of Florida.

Rodriguez argued against the 4 level enhancement based on the number of victims. At sentencing he argued the government only proved 10 victims. At the sentencing the government presented 42 affidavits from victims who suffered losses and presented a summary chart indicating there were 238 victims but it provided no witnesses nor did it provide any underlying data for the chart. The court erred in finding the offense involved more than 50 victims because the government presented no witnesses to authenticate what the chart represented, how it was prepare, or by whom. While the district court could consider trial evidence, there was no testimony or evidence tying the summary chart to any of the trial evidence. There was no witness to verify that the information on the chart was correct. The summary chart amounted to little more than an allegation by the government on a piece of paper that Rodriguez' offense involved more than 50 victims.

Amended Florida drug statute is not an aggravated felony as defined under the Immigration and Nationality Act

November 11, 2013,

Dwight Donawa, a citizen of Antigua, entered the United States in 1985 and became a permanent resident. In 2009 he was convicted in Florida state court of possession of cannabis with intent to sell or deliver in violation of § 893.13(1)(a)(2). After his conviction Department of Homeland Security began removal proceedings on grounds that he was removable because he had been convicted of an aggravated felony (8 U.S.C. § 227(a)(2)(A)(iii). Under the Immigration and Nationality Act permits the government to remove (deport) noncitizens who are convicted of certain crimes including drug offenses. Ordinarily a deportable citizen may ask the Attorney General for discretionary relief from removal, but if the noncitizen has been convicted of an aggravated felony, his is not only deportable but he is also ineligible for any discretionary relief. Before the Immigration Court he argued that he was not subject to removal and alternatively he argued that he was at the very least eligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(a).

In Donawa v. U.S. Attorney General the court of appeals faced the issue of whether Donawa's conviction under Florida Statutes § 893.13(1)(a)(2) for possession of cannabis with intent to sell or deliver is, as a matter of law, an aggravated felony. The definition of an aggravated felony that is relevant here is "illicit trafficking in a controlled substance" as defined by Title 18 U.S.C. § 924(c) The issue boiled down to whether 893.13(1)(a)(2) constitutes a drug trafficking crime, and if not whether it falls into the broader category of "illicit trafficking in a controlled substance."

The Eleventh Circuit reached the conclusion that § 893.13(1)(a)(2) is not an aggravated felony as a matter of law. In Fequiere v. Ashcroft, a case decided in 2002, the Eleventh Circuit determined the statute was an aggravated felony. Since the Fequiere decision, Florida enacted § 893.101 which significantly changed the nature of the offense. In this amendment the legislature eliminated the element of knowledge of the illicit nature of the controlled substance. Instead, the amendment made the lack of knowledge an affirmative defense to the offense. Thus, the statutory scheme, which had been in place at the time of the Fequiere the decision, had change to the extent that the required element of knowledge was no longer the state's burden. In contrast, the federal drug trafficking statute, 18 U.S.C. 841(a)(1), which is among the drug trafficking offenses listed under 18 U.S.C. 924(c)(2), requires the government to establish that the defendant had knowledge of the nature of the substance in his possession. Under the categorical approach, a person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. Under those same facts, a person could not be convicted of the federal crime. Applying the categorical approach, (where a court confines its consideration only to the fact of conviction and the statutory definition of the offense) the Florida statute cannot qualify as an aggravated felony.

Though this is an immigration case, finding that the Florida drug statute does not fit the definition of an aggravated felony could have a big impact on federal criminal cases in Miami as well as other federal courts within the Eleventh Circuit.

Comments by judge on the consequences of not pleading guilty do not give automatic right to withdraw guilty plea

November 9, 2013,


In the first U.S. v. Castro decision the Eleventh Circuit initially held that the defendant in this South Florida criminal case could withdraw his federal criminal plea because the district court violated Rule 11(c)(1) by advising Castro about the penal consequences of rejecting his federal criminal plea agreement. In that decision, the court held that Rule 11 creates a bright-line rule and the district court violated the rule against judicial participation in plea discussions by telling Castro he faced a sentence even more severe if he rejected the plea agreement. The Defendant was allowed to automatically withdraw his federal guilty plea and the case was assigned to a different judge. The court of appeals vacated that decision and granted a rehearing in this second U.S. v. Castro decision, after the Supreme Court's decision in U.S. v. Davila, which abrogated the rule that a plea will be automatically vacated for judicial participation in the plea discussions. Under Davila, the court must consider the full record and determine whether it was reasonably probable that, but for the single comment of the district court, Castro would have exercised his right to go to trial.

Reviewing this record showed the defendant was indicted on five counts of possessing marijuana and cocaine with intent to distribute and several firearms offenses including carrying a firearm during and in relation to a drug trafficking offense. Castro had hired an attorney and entered a not guilty plea at his arraignment. He later negotiated a plea agreement with the government which was reduced to writing and signed by Castro just minutes before his change of plea hearing. The plea agreement called for Castro to plead guilty to seven of his charges including 3 drug counts and 4 firearm counts. At the change of plea hearing Castro told the district court that he did not want to go forward with the change of plea and was not happy with his defense lawyer and wanted the court to appoint a new attorney to represent him. At the request of the defense counsel, the district court advised Castro of the consequences of reneging on his plea agreement with the government. The district court asked Castro if he understood that the government made certain concessions in the plea offer and if he did not plead the government could charge him with other things that will make the sentence more severe. Afterwards, Castro announced that he would take the plea and he withdrew his request for the appointment of a public defender. After the plea but prior to the sentencing Castro hired a new attorney. He was later sentenced to 156 months.

Davila held that when a defendant does not complain to the district court about its participation in plea discussions, a reviewing court should consider whether it was reasonably probable that but for the exhortations of the district court, the defendant would have exercised his right to go to trial. To make that determination, the court of appeals must evaluate the comments of the district court not in isolation but in light of the full record. The 11th Circuit found that Castro's decision to plead guilty was not a result of the district court's comments so much as it was from his desire to shorten the duration of his inevitable sentence for crimes he committed. The court of appeals was not convinced that Castro would have rejected the plea agreement had the district court not advised him of the consequences of reneging on his plea agreement. By pleading guilty, he avoided a second charge of carrying a firearm during a drug trafficking offense for which he faced a mandatory 25 year sentence to run consecutively to his other sentences. For this reason his conviction was affirmed. The issue raised here is a common one seen in federal criminal courts where a defendant tries to withdraw the guilty plea after receiving an unexpected severe sentence.

Structuring indictment thrown out because each count found insufficient

November 8, 2013,

In U.S. v. Lang the defendant was indicted on 85 counts of violating 18 U.S.C. § 5324 which makes it a crime to structure cash transactions for the purpose of evading the requirement that a financial institution file a report with the Department of Treasury of a cash transaction by any person on a single day exceeding $10,000. He was convicted of 70 counts and on appeal he challenged the sufficiency of the indictment. The statute prohibits a person from structuring any transaction with one or more domestic financial institutions, in an amount which by regulation is $10,000. In this federal white collar crime, the issue here is whether one or more structuring crimes has been committed for an evasion involving breaking down a single amount that exceeds $10,000. Structuring according to the Supreme Court precedent is breaking up a single transaction above the reporting threshold into two or more separate transactions for the purpose of evading a financial institutions reporting requirement. The court of appeals concluded that in order to evade the reporting requirements the structured transaction must involve an amount that is more than $10,000 or else there could be no evasion. A single cash transactions were not sufficient to set forth each structuring count. The court considered other circuit decisions regarding the question about the proper unit of prosecution for structuring. The Seventh and the Tenth Circuits found that the structuring itself and not the individual deposits is the unit of the crime. The Tenth Circuit reached the same conclusion in a case where a defendant paid a bank three separate payments of 9,000, 9,000 and 6,000 on three separate days to avoid a $24,000 cash payment.

In this case the indictment charged a separate structuring crime for each check less than $10,000 and no combination of two or more checks is alleged in any count. A cash transaction in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement and that requirement does not apply to a single cash transaction below the threshold. The government's theory is that Lang received from one source 21 payments exceeding $10,000 over a period of 8 months and had broken down the larger payments into multiple checks each of which was less than $10,000 and he cashed those checks separately to evade the reporting requirements. Instead of a series of counts each alleging payments totaling more than $10,000 that were structured into checks of smaller amounts, which were cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. "When cashed checks come to the structuring dance, it takes two to tango." Allegations from separate counts cannot be combined to allege what is missing in the count itself. For these reasons the indictment was found to be so defective that it does not, by any reasonable construction, charge an offense for which the defendant was convicted.