Articles Posted in Appeals

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

In this post in May, we discussed Flores-Figueroa v. United States, in which the Supreme Court held that a federal identity theft statute requires the government to prove that a criminal defendant knew that the identification that he or she used actually belonged to another person. That decision overruled a prior decision by the Eleventh Circuit Court of Appeals, which sits here in Atlanta and hears appeals in all federal cases originating in Georgia, Florida, and Alabama. Last Friday, in United States v. Gomez, the Eleventh Circuit applied the law in Flores-Figueroa, vacating an identity theft conviction because the trial court failed to instruct the jury on the correct law.

The defendant, Ramon Gomez, is an undocumented alien from the Dominican Republic. Because of his illegal immigration status, he was unable to find a job, so he purchased a Social Security card and birth certificate bearing the name Raul Rodriguez Delgado for $800. In April 2008, he used those documents to apply for a U.S. passport. Because another person using the same identity had obtained a passport in 2001, the State Department investigated and Gomez admitted to his true identity. Gomez was charged and convicted with making a false statement in a passport application, falsely representing himself as a citizen of the United States, and aggravated identity theft.

The Eleventh Circuit recognized that its earlier decision was no longer good law and that the district court erred when it failed to instruct the jury that it had to find that Gomez knew that the birth certificate he used belonged to another actual person. It then determined that the district court’s error was not harmless. The United States had introduced circumstantial evidence that Gomez knew Delgado was an actual person, but Gomez contested that evidence. An agent had tried to locate Delgado, but failed, so the jury may have questioned whether he existed. Because the error was not harmless, the Court vacated Gomez’s conviction for aggravated identity theft.

One of Justice Sotomayor‘s first decisions on the Supreme Court will be in Maryland v. Shatzer, which is set for argument on October 5, 2009. The Court will decide whether the federal criminal constitutional protections afforded by Edwards v. Arizona in 1981 extend to Shatzer.

Edwards prohibits interrogation of a suspect who has requested counsel, unless an attorney is provided. This rule protects suspects from police coercion and serves an administrative purpose of providing judges and law enforcement with a clear and easily enforceable rule. Shatzer requested counsel when he was interrogated in 2003, while he was in prison for a different crime. Counsel was never provided. In 2006, while he was still incarcerated, another officer interrogated him again about the same subject, again without providing a lawyer. That time, Shatzer gave a statement that eventually led to his conviction. The highest appeals court in Maryland found that the Edwards rule applied, reversing his conviction.

The state of Maryland asserts 3 primary points in its briefs to the Supreme Court:

A couple of weeks ago, the federal Supreme Court decided a criminal case, Melendez-Diaz v. Massachusetts, holding that the admission of crime lab reports requires the forensic analysts to testify in person. The Georgia Supreme Court adopted the same rule in 1996 for state criminal cases brought here in Georgia and we are pleased that it will now apply in federal criminal cases, as well as in other states that didn’t previously have the rule.

Justice Scalia, a strong defender of the Sixth Amendment Confrontation Clause, wrote the majority opinion in Melendez-Diaz. The basic idea of the Confrontation Clause is that people have the right to be confronted with witnesses against them so they have a chance to defend themselves against the charges. In Crawford v. Washington, the Court held that testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant has had a prior opportunity for cross-examination. In this case, Scalia explained that the crime lab reports were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause and addressed in Crawford. For that reason, the analysts making the statements must appear at trial.

The dissent argued that forensic evidence is uniquely reliable compared to other types of testimony and that cross-examination of the analysts would be empty formalism. To most people who watch TV shows like CSI, this argument has merit – scientific evidence seems indisputable. But not all forensic analysts are as intelligent and well-educated as Gil Grissom. The Court noted that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials… One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Confrontation will help assure accurate forensic analysis by weeding out both fraudulent and incompetent analysts.

Last week the Supreme Court decided District Attorney’s Office for the Third Judicial District v. Osborne in favor of the District Attorney’s Office. Although this was technically a civil case, it deals with federal constitutional criminal issues. Mr. Osborne was convicted of kidnapping, assault, and sexual assault in the early 1990s. An early type of DNA testing on the main evidence against him cleared other suspects, but could not narrow the perpetrator down to less than 5% of the population. Mr. Osborne sought access to the evidence now to subject it to a newer type of DNA test that can determine whether biological evidence matches an individual with near certainty.

The Court recognized the power of DNA testing in both exonerating wrongly convicted people and confirming the convictions of others. However, the Court’s “dilemma [was] how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.” In a disappointing and surprising 5-4 decision, the Court rejected Osborne’s argument for a Due Process right to DNA evidence.

An insightful analysis of the case by a staff attorney for the Innocence Project is available at this post in the American Constitution Society Blog.

In this post last year, we discussed Yeager v. United States, a white collar federal criminal case on appeal to the Supreme Court. The case involved the prosecution wanting to re-try a defendant who had been acquitted on some counts, but the jury had remained undecided on other counts. Because those other counts relied on facts that the jury must have resolved in the defendant’s favor to acquit, the defense argued (and we agreed) that the doctrine of collateral estoppel precluded the prosecution from retrying the issue. The Supreme Court issued its opinion last week, agreeing with us.

We reviewed the facts and legal issues in Yeager in our previous post. The Fifth Circuit Court of Appeals ruled that the acquitted counts meant that the jury found that Mr. Yeager did not have insider information. To prove the hung counts, the prosecution had to show that he had possessed insider information. The Fifth Circuit held that the inconsistency between the jury’s acquittals and hung counts justified a retrial. The Supreme Court declined to review the record to determine whether the Fifth Circuit’s ruling on the fact issue was correctly decided, permitting the Fifth Circuit to revisit the issue. Instead, the Court resolved only the narrower legal question.

Justice Stevens wrote the opinion for the court. He focused on the rule in Ashe v. Swenson, a 1970 case that held that the Double Jeopardy Clause precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The government argued, as the Fifth Circuit had held, that the inconsistency between the jury’s decision in acquitting and indecision in the hung counts justified retrial, but the Supreme Court held that courts should scrutinize juries’ decisions, not failures to decide, in identifying what they necessarily determined at trial.

Yesterday the Supreme Court eliminated a federal protection of criminal defendants’ right to counsel. Criminal defendants here in Atlanta, Georgia, as well as the rest of the country, now may be interrogated by police even after they secure representation by defense lawyers, if they don’t specifically request the lawyers’ presence or if they are not in police custody.

In yesterday’s Montejo v. Louisiana, the deeply divided Court overruled its 1986 opinion in Michigan v. Jackson, which prohibited police from initiating interrogation of a criminal defendant once he or she had invoked the right to counsel at an arraignment or similar proceeding. Justice Scalia, writing for the majority, reasoned that the rule in Jackson was unworkable because some states appoint public defenders without any request from the defendant, whereas other states require defendants to formally request counsel. That discrepancy led to different treatment of defendants based on only geography. Scalia went on to explain that the Sixth Amendment right to counsel, which Jackson protected, is sufficiently guarded by the Fifth Amendment right to counsel rules proscribed in Miranda v. Arizona, Edwards v. Arizona, and Minnick v. Mississippi.

Frankly, we disagree. The Fifth Amendment protections are limited to only custodial interrogations, so they do not apply to any defendants who are not in custody or who are interacting with police in a non-interrogation situation, such as a line-up. They are significantly narrower protections than Jackson provided. In addition, the whole point of getting a lawyer is that he or she can evaluate the situation and provide advice to the defendant during a very stressful time. Simply Mirandizing a person who has been formally charged and who has already obtained counsel is not sufficient, particularly if that person has not yet had a chance to even meet his or her lawyer, as was the case in Montejo.

Because our offices are in Atlanta, our firm primarily handles federal criminal cases in Georgia. However, we also have experience in Florida, as well as Alabama. Two of us have lived and worked in Florida and spent a lot of time driving on I-95, where the events relevant to this case occurred. The majority supports heads-I-win, tails-you-lose government evidence and justifies its decision with facts that, viewed by anyone who has spent any time in Florida, demonstrate racial profiling.

The case is United States v. Bautista-Silva. In March 2008, a Border Patrol agent was parked in a marked car at a rest stop along I-95 in Orlando, Florida, watching the southbound traffic. He saw a Chevy Suburban with California plates with two Hispanic men in the front seat and four more passengers in the back. As it drove past the rest area, it passed a pickup truck pulling a flat trailer. At this point the agent decided that this was an alien smuggling case and took off to catch the SUV. He had to drive 90 miles per hour to catch up. When he finally caught up, the driver slowed down to let him pass. None of the passengers made eye contact, even when the agent waved at them. That is when he pulled them over.

The United States District Court for the Middle District of Florida held that the agent lacked reasonable suspicion to stop the vehicle and granted the defendant’s motion to suppress all statements and evidence obtained as a result of the stop. The Eleventh Circuit Court of Appeals reversed that decision, holding that the agent had acted based upon specific and articulable facts that, under the totality of the circumstances, created a reasonable suspicion of illegal activity. Judge Pryor wrote the majority opinion, joined by Judge Farris from the Ninth Circuit, and Judge Barkett dissented.

On Monday the Supreme Court issued its opinion in Flores-Figueroa v. United States, resolving a split in the circuits in favor of criminal defendants. The Court held that a federal aggravated identity theft statute requires the government to prove that the defendant knew that the means of identification that he or she used, transferred, or possessed actually belonged to another person. This decision overrules a prior decision by the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Georgia, Florida, and Alabama.

The statute is 18 U.S.C. § 1028A, entitled “Aggravated Identity Theft,” which provides, in pertinent part:

Whoever, during and in relation to any felony violation enumerated in [§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

We first discussed Dean v. United States in December, when the Supreme Court agreed to review the Eleventh Circuit’s opinion of the federal case. During a robbery of a bank in Rome, Georgia in 2004, Christopher Michael Dean accidentally fired his gun while taking money from a teller drawer. No one was injured.

The Eleventh Circuit, here in Atlanta, Georgia, upheld Dean’s eighteen-year sentence, which included a ten-year minimum sentence for firing the gun. We hoped that the Supreme Court would overturn this decision, because such significant criminal liability should never be imposed without criminal intent OR injury.

In the last couple of weeks, the Supreme Court has guarded our 4th Amendment rights against unlawful searches and protected us from secret detention and government overreaching. This week, however, the Court ended its short streak with Dean. The Court held that a ten-year mandatory minimum sentence applies if a gun is discharged during a violent or drug trafficking crime, even if the gun is fired entirely by accident. This disregard for the most basic element of criminal liability, mens rea, is extraordinarily disappointing.