Federal Criminal Lawyer Blog

On Friday, the Eleventh Circuit Court of Appeals, where lawyers go when appealing a federal civil or criminal case that comes out of Georgia, Florida, or Alabama, issued its opinion in United States v. Di Pietro. Linsy Di Pietro was convicted of arranging marriages between illegal immigrants and U.S. citizens to help the immigrants obtain permanent legal status. The Court affirmed the district court’s refusal to dismiss the indictment on vagueness and preemption grounds.

Vagueness
Ms. Di Pietro was convicted of aiding and abetting violations of 8 U.S.C. § 1325(c). That federal statute prohibits marriage fraud: knowingly entering “into a marriage for the purpose of evading any provision of the immigration laws.” She argued that, although the statute clearly prohibited her conduct, it is void for vagueness as applied to others. She further argued that the statute implicates the right to marry, and hence the First Amendment, requiring a heightened vagueness standard. The Court rejected her vagueness challenge because “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to others.” There is no exception for vagueness challenges implicating the First Amendment.

Preemption
In what the Court called a “novel” argument, Ms. Di Pietro also asserted that Florida’s marriage laws, which she said allow such marriages of convenience, preempted the federal statute. Preemption is based upon the Supremacy Clause, providing a basis for invalidating state or local laws when they conflict with laws of the United States. Ms. Di Pietro’s argument “turn[ed] the Supremacy Clause on its head.” State laws cannot trump federal laws, so preemption “does Ms. Di Pietro no good.”

The full opinion is available here.

Last week, the Eleventh Circuit Court of Appeals issued its opinion in United States v. Kottwitz. This opinion is important because it explains in detail when a trial court must instruct the jury on good faith reliance on the advice of his advisor. The Court also addressed the sufficiency of the evidence on defendants’ Klein conspiracy and tax fraud and evasion charges.

In holding that the trial court had abused its discretion in refusing to give the good faith reliance instruction, the Court thoroughly reviewed the law regarding such instructions. The instruction is designed to refute the government’s proof of the defendant’s intent. “The defendant bears an ‘extremely low’ threshold to justify the good faith reliance instruction and does not need to prove good faith.”

White-collar criminal defense attorneys often deal with good faith reliance issues and should keep Kottwitz in mind when arguing for such an instruction. The “good faith” defense is often the single most important issue when prosecutors go after a person based on what he or she did in the business context. A person who acts in good faith cannot be guilty where he or she did not intend to break the law. The lawyers in this case struggled to get this concept across to the jury, but were thwarted in their efforts when the trial judge took a different view of the appropriate instruction for the jury.

The full opinion is available here, including Judge Birch’s dissent on the issue of sufficiency of the evidence of the conspiracy.

The Eleventh Circuit Court of Appeals held last week that a ten-year delay between indictment and arrest did not deprive Victor Garcia Villarreal of his constitutional right to a speedy trial. The Court employed a four-factor balancing test, holding that although the length of the delay gave rise to a presumption of prejudice, the reason for the delay, failure to promptly assert the right, and lack of actual prejudice showed that Villarreal was not denied his right to a speedy trial. In weighing the final three factors, the Court gave substantial deference to the district court’s factual findings that Villarreal had evaded arrest and the delay had caused the government actual prejudice, rather than the defendant.

The full opinion in United States v. Villarreal is available here.

Last month, the Eleventh Circuit Court of Appeals held that 18 U.S.C. § 924(c), which makes it a federal crime to use or possess a firearm in connection with a crime of violence, can apply to crimes of violence committed outside the United States. In U.S. v. Belfast, the first case prosecuting an individual under 18 U.S.C. § 2340A (the Torture Act,) the Court upheld a § 924(c) conviction where the American citizen defendant tortured people in Liberia.

The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.

The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”

In so holding, the Court glossed over the general presumption that statutes apply only domestically, with extraterritorial effect only where congressional intent is clear. Without citing any case law approving the application of § 924(c) to conduct outside the Unites States, the Court distinguished U.S. v. Small, a Supreme Court case holding that the word “any” in a different federal criminal statute could not overcome that Congress normally legislates with only domestic concerns in mind.

We believe this case would be a good candidate for the Supreme Court to grant certiorari if Emmanuel appeals this decision. If that happens, we will provide an update on the case.

The full opinion in U.S. v. Belfast is available here.

Last week, the Eleventh Circuit Court of Appeals, sitting en banc, decided United States v. Irey. The 142-page majority opinion recounted gruesome sex crimes that Mr. Irey admitted to committing against as many as 50 Cambodian girls, some as young as four years old. The Court held that the 17½ year sentence ordered by the federal district court judge was a substantively unreasonable downward variance and remanded for sentencing within the Sentencing Guidelines range, which was 30 years at both the top and bottom. As one of the dissenting judges noted, “hard facts often lead to bad law” and we worry that this case will unduly limit district court judges’ discretion in imposing variances in future sentencing decisions.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

At sentencing, the defense introduced the reports and testimony of two experts in the fields of psychology and psychiatry to address Mr. Irey’s diagnosis of pedophilia. The court also heard from Mr. Irey’s friends and family, who characterized him as a “hero.” The government did not introduce any experts or other witnesses. The sentencing judge focused on Mr. Irey’s diagnosis and otherwise good character in sentencing him to 17½ years in prison, followed by a lifetime of supervised release.

The majority opinion extensively reviewed the history of sentencing law, concluding that it must apply an abuse of discretion standard to its review. The Court held (and the dissenting judges disagreed) that an appellate court may, in its review, itself weigh the 18 U.S.C. § 3553(a) factors to be used in imposing a sentence to determine whether the district court’s balancing of the factors was substantively unreasonable. Based on its own protracted analysis of the § 3553(a) factors, the Court held that the district court’s major variance from the Guidelines sentence was substantively unreasonable.

While the sickening facts in this case make a 17½ year sentence surprising, we worry that the law that the Eleventh Circuit had to make to substitute its reasoning for the district court judge will negatively impact sentencing decisions in this circuit. As Paul Kish commented to the Daily Report, “It is a message to district judges that there are boundaries beyond which you cannot go or you will incur the wrath of certain judges whose views differ from yours.” Judges will be less likely to stray from the Guidelines, despite their advisory status since U.S. v. Booker.

The full opinion in U.S. v. Irey is available here, along with concurring and dissenting opinions, totaling more than 250 pages.

The Daily Report article regarding this case is available here.

In late May, the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Florida, Georgia, and Alabama, decided U.S. v. Cunningham. The Court held that the federal statute that provides for revocation of supervised release is constitutional under the Fifth and Sixth Amendments, despite its provision for reimprisonment of a criminal defendant based upon conduct that is not proven to a jury beyond a reasonable doubt.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.

The Eleventh Circuit distinguished the revocation of supervised release from Apprendi and Blakely. The Court reasoned that the defendant was already convicted of the underlying offenses and was granted only conditional liberty, depending upon his obeying the limits of his supervised release. In holding that a violation of supervised release need only be proven to a judge by a preponderance of the evidence, the Court joined six other circuits.

The Cunningham opinion is available here.

Last week, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, issued its opinion in U.S. v. Garcia-Cordero. The Court held that the federal immigration law that requires persons transporting international passengers to “bring and present” those passengers to immigration officers does not violate the Fifth Amendment privilege against self-incrimination as applied to criminal defendants who smuggle aliens into the United States.

The federal immigration statute at 8 U.S.C. § 1324 criminalizes bringing illegal immigrants to the United States and provides an increased penalty for failure to “bring and present” the alien to an immigration officer at a designated port of entry. The Court held that, because the immigration laws are more regulatory than criminal, and because the statute applies to all persons transporting all aliens (rather than only those without prior authorization to enter,) the statute “does not target a highly selective group inherently suspect of criminal activities.” Thus, the statute is a part of a regulatory regime, against which the Fifth Amendment privilege may not be asserted.

The Court's opinion is available here.

Earlier this month, the Supreme Court announced its decision in Dolan v. United States, resolving a circuit court split. This decision abrogates U.S. v. Maung, a 2001 Eleventh Circuit case that held that a federal court imposing a criminal sentence lacks the authority to enter a restitution order after the 90-day deadline has expired. The Supreme Court held that, at least where the sentencing court clearly advised before the deadline that it would order restitution, that court may order the specific amount after the deadline has expired.

The majority opinion by Justice Breyer is available here, along with a dissenting opinion by Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy.

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

The Original Sentence and Appeals
In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008
In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit
Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here.
The Supreme Court's opinion in Begay is available here.
The Eleventh Circuit's opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:
Chambers (Supreme Court: failure to report to a penal institution is not violent felony)
Lee (Eleventh Circuit: walkaway escape is not violent felony)
Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)
Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

Last Monday, the Supreme Court of the United States reversed the Eleventh Circuit’s decision in Holland v. Florida. The Court held, as have all Courts of Appeal, that the AEDPA’s statute of limitations in habeas corpus cases is subject to equitable tolling. The Court further held that the Eleventh Circuit’s per se rule regarding when such equitable tolling applies is “too rigid.” The Court reversed and remanded without explaining a precise standard for when equitable tolling should apply.

In determining that equitable tolling is available, the Court reasoned that the AEDPA’s statute of limitations is nonjurisdictional and such statutes of limitations are normally subject to a rebuttable presumption in favor of equitable tolling. In addition, equitable principles have traditionally governed the law regarding habeas corpus. The Court distinguished cases in which nonjurisdictional statutes of limitations were interpreted as not subject to equitable tolling.

The Court then explained that, for equitable tolling to be available, a petitioner must show diligence in pursuing his rights and some extraordinary circumstance that prevented timely filing. Emphasizing that equity requires decisions on a case-by-case basis, flexibility, and avoidance of mechanical rules, the Court pointed out that equity’s intent is relief from hardships resulting from “evils of archaic rigidity.”

The Court viewed the Eleventh Circuit’s per se rule as “difficult to reconcile with more general equitable principles.” The Eleventh Circuit had held that an attorney’s unprofessional conduct, even if grossly negligent, could not justify equitable tolling without bad faith, dishonesty, divided loyalty, mental impairment, or the like.

The Court admitted that a “garden variety claim of excusable neglect does not warrant equitable tolling,” but stated this case involved more serious instances of attorney misconduct, that may well qualify as extraordinary circumstances. The Court remanded to the Eleventh Circuit on this question. The Court also commented that Holland had been reasonably diligent in pursuing his rights, although that issue was not part of the question presented.

The opinion in Holland v. Florida is available here. Justice Alito issued a concurring opinion, in which he further analyzed the appropriate standard for when equitable tolling should be available. Justice Scalia issued a dissent. In Part I he explained that equitable tolling should not be available at all, then the rest of his dissent explained why Holland should not receive relief, even if equitable tolling did apply. Justice Thomas joined his dissent, except as to Part I. The concurring and dissenting opinions are also available at the link above.

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

For more information on the details of this case, Judge Martin’s decision below, and the Eleventh Circuit opinion, this Daily Report article discusses the case at length.

The Eleventh Circuit’s 112-page opinion in U.S. v. Farley is available here. We should caution that the opinion contains a fair amount of graphic detail.

Last Friday, the Eleventh Circuit, which hears federal appeals here in Atlanta, Georgia, reversed Lance Lall’s conviction for credit card fraud related offenses. Although Lall was Mirandized and arguably not in custody, the Court held that his confessions were not voluntarily given, in violation of the Due Process Clause. The investigating officer had told Lall that he would not pursue charges against him.

The case began with an armed robbery at the home of twenty-year-old Lall, his parents, and his siblings. The robbers said they were searching for money and equipment owned by Lance Lall. The detectives interrogated Lall in his bedroom, telling him and his family that information he shared would not be used to prosecute him. Lall showed the detectives the equipment he used to commit identity theft and explained how each device worked. Within hours, a detective alerted the Secret Service to the evidence. Several days later, the detective called Lall in to the police station, telling him he would not need a lawyer and that he would not charge him with this. Lall was ultimately arrested by the Secret Service and tried in federal court.

The Court first analyzed the statement given in Lall’s bedroom. The Court held that the detective’s statement that he would not pursue charges was misleading and undermined the Miranda warnings he initially gave, but did not resolve the issue of whether Lall was in custody for that statement. Instead, the Court analyzed the case using the Due Process Clause, holding that the totality of the circumstances demonstrated that Lall’s statements were involuntarily given. Factual misrepresentations are not enough to render a confession involuntary. However, the deceptive promises made by the detectives here were so egregious as to make the subsequent statements involuntary. In addition, “[i]t is inconceivable that Lall, an uncounseled twenty-year-old, understood at the time that a promise by [the state police detective] that he was not going to pursue any charges did not preclude the use of the confession in a federal prosecution.”

The Court held that the same analysis applied to the second statement given by Lall at the police station, with discussion regarding whether that issue had been properly preserved for review. The Court also held that the physical evidence derived from the statements in Lall’s bedroom should have been suppressed. Although the items were in plain view, the detective admitted that he did not know what the credit card fraud equipment was without Lall’s explanation.

The Eleventh Circuit’s opinion in U.S. v. Lall is available here.

In another federal criminal decision issued last Friday, the Eleventh Circuit Court of Appeals held that the identity of a firearms purchaser is always material to the lawfulness of the purchase of a firearm under 18 U.S.C. § 922(a)(6). This decision directly conflicts with the Fifth Circuit’s 1997 holding in U.S. v. Polk that § 922(a)(6) was not violated where both the defendant and his “straw purchaser” were eligible to purchase firearms legally.

In Frazier, the defendants were involved in smuggling firearms from the United States into Canada. The evidence showed that Frazier purchased guns, then paid a woman to order the same guns from the same shop shortly thereafter. Later, another woman ordered additional guns for Frazier.

To convict under § 922(a)(6), the government must prove that the defendant made a false statement regarding “a fact material to the lawfulness of the sale or disposition of [a] firearm.” This section is violated when “an unlawful purchaser uses a straw man purchaser to obtain a firearm.” In this case, however, Frazier was a lawful purchaser using a straw man. In Polk, the Fifth Circuit reasoned that, in such a case, the false statements made regarding the identity of the purchaser were not “material to the lawfulness of the sale of firearms” so there could be no liability under § 922(a)(6).

The Eleventh Circuit disagreed. Under pre-Bonner v. City of Prichard precedent, the Fifth Circuit upheld the § 922(a)(6) conviction of a defendant who had provided a false address in connection with the purchase of a firearm in U.S. v. Grudger. Grudger noted that the sale of a firearm is unlawful under § 922(b)(5) unless the seller records the name, age, and place of residence of the purchaser. Therefore, providing a false address is a misrepresentation that is material to the lawfulness of the sale. For this reason, the Eleventh Circuit held in Frazier that the misrepresentation violated § 922(b)(5) and, correspondingly, § 922(a)(6), even though the actual purchaser was eligible to purchase firearms.

The opinion in U.S. v. Frazier is available here.

This past Friday the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ghertler, a federal criminal case. The Court held that Ghertler, who had impersonated corporate officials to obtain urgent cash transfers from large corporations, did not abuse a position of trust in perpetrating his frauds because he had no relationship of trust to abuse. For that reason, the abuse of trust sentencing enhancement at U.S.S.G. § 3B1.3 should not have applied.

In 2006 and 2007, Mr. Ghertler researched the names of corporate officers, then called the company and identified himself as an officer, usually the general counsel. He claimed that some urgent matter, such as settlement of a lawsuit, required an immediate cash transfer and provided instructions for distribution of the funds. He pleaded guilty to eight counts of wire fraud in 2008, admitting to defrauding the seven companies named in the indictment. He was sentenced to concurrent 185-month sentences.

One of Ghertler’s arguments on appeal was that the District Court should not have applied U.S.S.G. § 3B1.3, a two-level sentencing enhancement for abuse of a position of trust. The District Court recognized that Ghertler did not actually hold a position of trust, but based its decision on Application Note 3, which provides for application of the enhancement where “the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.”

The Court held that “[a] relationship of trust between the defendant and the victim is the sine qua non of the abuse-of-trust enhancement.” In this case, there was no relationship of trust between Ghertler and the victims to abuse. The Court looked to the history to Application Note 3, pointing out that the Commission adopted the Note to ensure that the enhancement would apply to defendants who entered into relationships of trust with victims based upon misrepresentations. The relationship of trust remains the touchstone of the abuse-of-trust analysis. Without such a relationship, the enhancement cannot be applied.

The opinion in Ghertler is available here.

Yesterday, the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, held in U.S. v. Phaknikone that profile photographs from the criminal defendant’s Myspace account were inadmissible evidence of character. The government argued that the photos demonstrated modus operandi: the defendant’s gangsta style as shown in the photographs identified the defendant because he robbed banks “like a gangster.” The Court saw through the argument, but held that admitting the photos was harmless error, due to the “overwhelming” evidence of Phaknikone’s guilt.

The relevant photograph in this case showed Phaknikone in the driver’s seat of a car. A tattoo is visible on his neck, as well as a large tattoo on his left arm, and he is holding a handgun in his right hand. A passenger is handing something to a child in the back seat of the car. The Court held that this photograph “proves only that Phaknikone, on an earlier occasion, possessed a handgun in the presence of a child. Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.”

Phaknikone was convicted on fifteen counts stemming from seven bank robberies in late 2006 and early 2007 in Northeast Georgia. He was captured fleeing one robbery and confessed to three more. Evidence regarding clothing and shoes worn by the robbers, eyewitness accounts of his tattoos, and behavior during the robberies was introduced by the government, as well. The Court held that the evidence was overwhelming, viewed in its totality, so the admission of the photographs was harmless error.

The Court’s opinion is available here.

View larger version of image here.

This week, the Eleventh Circuit held that the rule making the federal Sex Offender Registration and Notification Act (SORNA) retroactive was valid. In passing the rule, the Attorney General did not provide a notice and comment period as required by the Administrative Procedure Act (APA). The Court held, over Judge Wilson’s strong opinion concurring only in the result, that the Attorney General had “good cause” to skip the mandatory notice and comment procedures.

This issue is the subject of a Circuit Court split. The Fourth Circuit has held that the Attorney General complied with the APA, whereas the Sixth Circuit concluded that the retroactivity rule is invalid for failure to show good cause.

The good cause exceptions are contained at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3). These exceptions allow the agency to skip notice and comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The exception must be read narrowly.

The AG argued that the rule would (1) provide guidance to eliminate uncertainty and (2) prevent the delay in registration of sex offenders who would evade during the notice and comment period. The Court held that the guidance rationale alone may not have established good cause, but counted “to some extent” because people needed to know whether to register. As for the public safety rationale, the Court held that emergency situations are not necessary for the good cause exception. The Court held that SORNA’s increased punishment over existing laws justified bypassing the APA’s notice and comment requirement.

Judge Wilson concurred in the result only. In his well-reasoned opinion, he explained that the delay entailed in a notice and comment period would not have caused any emergency or threat of real harm. Federal law already provided for punishment for failure to register and state law provided for punishment as harsh as that provided by SORNA. He concurred in the result due to harmless error. His concluding paragraph sums up our feelings on the case:

I am troubled by the precedent the majority opinion sets today. It is now easier for an administrative agency to avoid notice and comment in our circuit by claiming an emergency or threat of serious harm, whether or not the facts support one. As Dean’s counsel pointed out at oral argument, today’s holding will apply to APA appeals unrelated to SORNA.

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in United States v. Lee. The Court held affirmed Mr. Lee's convictions, holding that his communications with a "mother" of minors, absent any travel arrangements, were sufficient evidence of attempting to entice a minor. Judge Martin filed a vigorous dissent, arguing that the evidence failed to support that Mr. Lee took a substantial step toward that crime. She concurred with the majority in affirming Mr. Lee’s other federal criminal convictions.

Mr. Lee communicated with a postal inspector who was posing as a mother of two minor girls. He never communicated with anyone claiming to be a minor, although he asked the “mother” to share information and photographs with her daughters and requested photos in return. He discussed meeting them in general terms, but at one point noted that their first meeting would be as friends. He never made travel arrangements.

Judge Martin declared her “concern that the majority opinion does not clearly demarcate despicable but lawful talk from a criminal attempt punishable by up to 30 years in prison.” While the interaction was “disturbing,” no evidence showed that Mr. Lee took any steps to extend his relationship beyond his home. His actions should not count as a “substantial step toward enticing a child to engage in illicit sexual conduct.” For that reason, Judge Martin would have vacated the attempt conviction.

The Court’s opinion and Judge Martin’s dissent are available here.

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

The statute used, § 1512, is intended to punish witness tampering. One of the elements of subsection (a)(1)(c) is a federal nexus – the murder must have been intended to prevent communication relating to the possible commission of a federal offense. Fowler argued that the evidence did not sufficiently prove this federal nexus.

The Court held that the federal nexus requirement does not require proof of the victim’s state of mind, i.e. a plan to communicate information to federal authorities (unlikely with the victim in this case.) Instead, the statute focuses on the defendant’s intent “to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense."

Under this holding, any murder intended to cover up anything that could arguably be investigated as a possible federal crime is a federal case. In this previous post, we discussed the danger of over-federalization of crime. We have also discussed some differences between federal and state prosecutions here.

The Court’s opinion is available here.

Last month, the Eleventh Circuit Court of Appeals, which hears appeals in federal cases here in Atlanta, Georgia, heard oral arguments in a habeas corpus case filed by Sholam Weiss. Weiss argues that the United States government has reneged on promises it made to the Austrian authorities to obtain extradition.

Ten years ago, Weiss was sentenced to 845 years in absentia after a jury found him guilty of RICO violations, money laundering, and other charges stemming from the white collar fraud that resulted in the downfall of the National Heritage Life Insurance Company. Just before jury deliberations began, Weiss fled the country. He was eventually arrested in Austria pursuant to an international arrest warrant. Austria initially refused to extradite Weiss, but later agreed after extensive negotiations and exchanges of information.

Weiss’s appellate lawyers argue that Austria would not have extradited Weiss had the U.S. not promised that Weiss would be given the opportunity to appeal his convictions and be resentenced. In his habeas corpus petition to the Middle District of Florida, Weiss argued that the extradition is invalid, so the United States has no personal jurisdiction over him and he should be released in Austria. The Eleventh Circuit is more likely to consider specific performance, requiring the U.S. to follow through on its promises to the Austrian authorities.

We will update when the Eleventh Circuit’s decision is issued.
The unreported decision by the Middle District of Florida is available at 2008 WL 5235162.

Last week, the Eleventh Circuit federal appeals court decided U.S. v. Sneed. In this Armed Career Criminal Act (ACCA) case, the Court decided that U.S. v. Shepard, decided by the Supreme Court in 2005, abrogated the Eleventh Circuit’s 2000 decision in U.S. v. Richardson. The Court held that sentencing courts may look only to Shepard-approved material and facts to which the defendant has assented (such as undisputed facts in the PSI) in determining whether ACCA prior offenses were committed on different occasions.

As we explained in this post, the ACCA provides for a mandatory minimum sentence of 15 years for federal criminal defendants who have three previous convictions for violent felonies or serious drug offenses. Those offenses must have been committed on temporally distinct occasions. In Sneed, the defendant had three previous drug convictions that were charged in a single indictment in Alabama. The state indictment did not provide dates or times for the offenses, so the district court looked to police reports attached to the government’s sentencing memorandum to determine that the offenses were committed on different occasions.

In 2000, the Eleventh Circuit held in Richardson that “determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions.” In that case, police reports showed that the prior crimes had been temporally distinct and their accuracy was not contested. The Eleventh Circuit relied on the police reports and concluded that the crimes were distinct.

The Supreme Court decided Shepard in 2005, holding that sentencing courts may only consult certain materials in determining the nature of a defendant’s prior convictions for purposes of ACCA. The Court expressly rejected police reports and stressed developments in the law, Jones and Apprendi in particular, addressing the constitutional concerns requiring a jury’s finding of a disputed fact about prior convictions where that fact is essential to increase a potential sentence. Shepard-approved materials include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from bench trials, and jury instructions and verdict forms.

The Eleventh Circuit stated that Richardson’s conclusion that courts may look to certain facts underlying prior convictions for the different occasions inquiry is still correct, but held that Shepard abrogated its approval of the use of police reports. Although Shepard addressed a different ACCA determination, the two statutory predicates (type of offense and different occasions) are contained in the same sentence. The Eleventh Circuit held that “there is simply no distinction left” between type of offense and different occasions inquiries for the scope of permissible evidence to be different in determining each statutory predicate.

The bottom line is that the defendant’s mandatory minimum 15-year sentence is tossed, although he still faces a potential max of 10 years for being a felon in possession.

The opinion in this case is available here.

The United States Court of Appeals for the Eleventh Circuit has issued a ruling that deals with whether one victim of an economic crime gets to climb to the top of the heap and get more recovery out of the fraudster than the remaining victims. The Court ruled that even when such a victim can trace his money directly into a bank account used by the criminal, such a victim cannot get the money back. Instead, the money goes into the pot, so to speak, and is divided among all victims pro rata.

The case involves two common themes nowadays: Ponzi schemes and forfeiture proceedings that are part of federal criminal prosecutions. As is well known, in a Ponzi scheme, the fraudster takes money from recent investors to pay off those who invested earlier, until the whole thing collapses. Forfeiture is the process by which the government takes from a criminal defendant any money that comes from, is traceable to, or is a substitute for property that is part of the crime itself.

Altogether the defendant had defrauded about $20 million from over 90 people. Just before the defendant’s scheme was discovered, he got one final investor to put in about $2 million. Almost immediately thereafter, the authorities arrested the defendant and seized his bank accounts. The final investor’s $2 million was sitting in the defendant’s bank account. The federal authorities wanted to forfeit the $2 million in the bank account, along with other assets, in order to give the proceeds back to all 90 victims.

The final investor claimed he had a "constructive trust". In this argument, the last investor said that at the very moment the defendant accepted the final $2 million, it was owed to that last investor, and such a debt is a “superior” and “qualifying” interest under the forfeiture laws. Under such an argument, this means he would get his $2 million off the top from all property seized from the defendant.

The Eleventh Circuit rejected the equitable constructive trust argument from the final investor. The Court said that this issue is controlled by state law, and that Georgia did not recognize such a constructive trust on behalf of the final investor prior to the defendant’s arrest. Instead, the principles of equity require fairness. The Court of Appeals noted that the main idea in forfeiture proceedings is to try to get as much as possible and to treat all victims of fraud equally, so that they each get a pro rata share.

The opinion is available here.

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.
A lengthy analysis by Orin Kerr on why the Eleventh Circuit got this wrong is here at the Volokh Conspiracy.