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Criminal Law

Defense Newsletter Blog

Breaking news supplementing the Defense Newsletter covering 11th Circuit and Supreme Court Cases.
By Tim Cone

Post Frequency: 9.1/day

Last Entry: October 27, 2020 at 13:19:00

Deason: Upholding Enticement and Obscene Transfer Convictions

Posted on July 17, 2020
In United States v. Deason, No. 17-12218 (July 17, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the defendant?s convictions for enticement of a minor and attempted transfer of obscene material.First, the Court upheld the denial of a motion to suppress statements made by the defendant in his home without receiving Mirandawarnings...

Gumbs: Upholding Convictions for Forcibly Assault Federal Officers with a Vehicle

Posted on July 15, 2020
In United States v. Gumbs, No. 18-13182 (July 15, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed the defendant?s convictions for using a deadly weapon to forcibly assault a federal officer.First, the Court found no abuse of discretion in refusing to give the defendant?s proposed jury instructions...

Martinez: Upholding Guideline Enhancement for Possessing Gun In Connection With Another Felony

Posted on July 14, 2020
In United States v. Martinez, No. 18-12950 (July 14, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed an enhancement under USSG 2K2.1(b)(6)(B) for unlawfully possessing a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony...

Chalker: Upholding Healthcare Fraud Convictions Over Various Challenges

Posted on July 13, 2020
In United States v. Chalker, No. 18-15102 (July 13, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant pharmacist?s healthcare fraud convictions and sentence.First, the Court found that the evidence was sufficient to support convictions for conspiracy to commit healthcare fraud and substantive healthcare fraud...

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Stein: Upholding Restitution Order and Deeming Other Challenges Barred by the Mandate Rule/Law of Case

Posted on July 13, 2020
In United States v. Stein, No. 18-13762 (July 13, 2020) (Marcus, Luck, Ed Carnes), the Court re-affirmed the defendant?s fraud convictions and affirmed an award of restitution.In a previous appeal, the Eleventh Circuit remanded for the district court consider to reconsider its loss finding with respect to restitution...

Ruan: Rejecting Numerous Challenges to Physicians' Convictions for Distributing Opioids

Posted on July 10, 2020
In United States v. Ruan, No. 17-12653 (July 10, 2020) (Coogler (ND Ala.), Wilson, Newsom)), the Court, in a 137-page opinion, affirmed all but one the defendant doctors? numerous health-care/opioid related convictions.The Court found sufficient evidence to support convictions for unlawfully prescribing opioids, health care fraud conspiracy, conspiracy to receive kickbacks, mail/fraud wire fraud conspiracy, and RICO conspiracy...

Wetherald: Ex Post Facto Clause, Post-Booker, Applies to Guidelines

Posted on March 29, 2011
In U.S. v. Wetherald, No. 09-11687 (March 28, 2011), affirming multiple fraud convictions, the Court held that even though the Guidelines, post-Booker, are not mandatory, the Ex Post Facto Clause still requires a district court not to apply a harsher Guideline that took effect after the defendant?s conduct, unless the district court a sentencing makes clear that it does not feel bound by the more recent, harsher Guidelines...

Beasley: SORNA Criminalizes Non-Registration Only After Travel

Posted on March 29, 2011
In U.S. v. Beasley, No. 09-11528 (March 28, 2011), on remand from the United States Supreme Court, the Court vacated a conviction of a defendant convicted of failing to register as required by the Sex Offender Registration and Notification Act. The Court noted that the Supreme Court?s decision in Carr v...

Valarezo-Orobio: Scutting of vessel was "reasonably foreseeable"

Posted on March 23, 2011
In U.S. v. Valarezo-Orobio, No. 10-11222 (March 23, 2011), the Court upheld the imposition of an eight-level Guideline enhancement on a defendant convicted of operating a semi-submersible vessel in violation of 18 U.S.C. � 2285. The enhancement applies when the offense involves ?the sinking of the vessel...

Jordan: No selective prosecution where defendant did not rely on evidence regarding similarly-situated defendants

Posted on March 17, 2011
In U.S. v. Jordan, No. 10-11534 (March 16, 2011), the Court affirmed a felon in possession of a firearm conviction.The Court rejected Jordan?s Fourth Amendment challenge to his seizure. The Court noted that Jordan?s encounter with police occurred in an ?area known for crime...

Dean: Child Pornography Statute Not Overbroad

Posted on March 17, 2011
In U.S. v. Dean, No. 09-16133 (March 16, 2011), the Court rejected challenges to the constitutionality of a statute that makes it unlawful to produce child pornography, 18 U.S.C. � 1466A(a)(2).Dean relied on the First Amendment ?overbreadth? doctrine...

Gamory: Life Sentenced for Drug Dealer

Posted on March 14, 2011
In U.S. v. Gamory, No. 09-13929 (March 11, 2011), the Court affirmed drug trafficking and money laundering convictions, and a sentence of life imprisonment.The Court rejected Gamory?s argument that he was wrongly denied a Franks hearing regarding the falsity of an affidavit that supported an application for a search warrant...

Jackson: Rule 32 does not apply to revocation hearings

Posted on March 11, 2011
In U.S. v. Jackson, No. 10-13019 (Feb. 24, 2011), the Court affirmed a 21-month sentence imposed on a revocation of supervised release.The Court held that Fed. R. Crim. P. 32(i)(1)(A), which requires a district court to verify at sentencing that the defendant and the defendant?s attorney have read and discussed the presentence report, does not apply to probation office reports prepared for a revocation hearing...

Schmitz: Error to ask "Were-they-lying" questions

Posted on March 08, 2011
In U.S. v. Schmitz, No. 09-14452 (March 4, 2011), the Court reversed convictions for theft concerning a program receiving federal funds, in violation of 18 U.S.C. � 666(a)(1)(A), but affirmed mail fraud convictions obtained against an Alabama state legislator who collected $177,000 in salary for a federal program but did little or no work...

Rose: Unpresented mitigation evidence not sufficient for habeas relief

Posted on March 07, 2011
In Rose v. McNeil, No. 10-11848 (March 4, 2011), the Court denied habeas relief to a Florida death row inmate sentenced to death for a 1982 murder, rejecting an argument that defense counsel was ineffective for failing to investigate and present mitigation evidence at the penalty phase of Rose?s trial...

Almanzar: District Court Usurped Role of Jury

Posted on March 04, 2011
In U.S. v. Almanzar, No. 10-11481 (March 4, 2011),the Court found that the district court usurped the role of the jury by granting a motion for a judgment of acquittal, after the jury gave a guilty verdict that convicted a defendant of methamphetamine trafficking...

Naranjo: Sufficient Concealment for Money Laundering

Posted on March 03, 2011
In U.S. v. Naranjo, No. 08-13814 (March 2, 2011), the Court affirmed concealment money laundering convictions.The Court rejected the argument that the government failed to prove ?concealment.? The Court pointed out that while Naranjo signed the checks from his fraudulent companies, he tried to conceal his association with the bank accounts on which the checks were drawn...

San Martin: Two week lateness bars death row inmate's petition

Posted on February 24, 2011
In San Martin v. McNeil, No. 09-14311 (Feb. 23, 2011), the Court rejected as untimely the federal habeas petition filed by a Florida inmate sentenced to death for a 1991 murder.San Martin filed his federal habeas petition two weeks after the one-year deadline of AEPDA...

Julian: 924(j) does not require consecutive sentences

Posted on February 24, 2011
In U.S. v. Julian, No. 09-13673 (Feb. 22, 2011), the Court vacated a sentence and remanded for resentencing, because the district court erroneously concluded that it was required by statute to impose consecutive sentences, and lacked discretion to impose concurrent sentences...

Lockley: Florida "Attempted Robbery" is "Crime of Violence"

Posted on February 16, 2011
In U.S. v. Lockley, No. 09-15728 (Feb. 11, 2011), the Court held that a prior conviction for ?attempted robbery,? in violation of Fla. Stat. �� 812.13(1) and 777.04(1) qualified as ?crime of violence? for purposes of the career offender Guideline.The Court noted that the career offender guideline expressly includes ?robbery,? which refers to ?generic? forms of robbery...

Ibarquen-Mosquera: DTVIA is Constitutional (Part 2)

Posted on February 15, 2011
In U.S. v. Ibarguen-Mosquera, No. 09-14476 (Feb. 10, 2011), the Court rejected challenges to the constitutionality of the Drug Trafficking Vessel Interdiction Act (DTVIA).The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels...

Saac: DTVIA is Constitutional (Part I)

Posted on February 15, 2011
In U.S. v. Saac, No. 09-14204 (Feb. 9, 2011), the Court upheld the constitutionality of the Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA). The defendants were convicted under the DTVIA of operating a semi-submersible vessel in international waters...

Lee: Conspiracy not "Crime of Violence"

Posted on February 04, 2011
In U.S. v. Lee, No. 10-10926 (Feb. 2, 2011)the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a ?crime of violence? for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify...

Preacher: Abandonment not applicable defense to using interstate facility for murder

Posted on January 28, 2011
In U.S. v. Preacher, No. 10-10492 (Jan. 28, 2011), the Court held that an abandonment defense was not available for the offense of using a facility of interstate commerce with the intent that a murder for hire be committed.Preacher used a cell phone to contact someone with the idea of hiring someone to commit murder...

McDaniel: Child pornography possessor proximately causes harm

Posted on January 28, 2011
In U.S. v. McDaniel, No. 09-15038 (Jan. 28, 2011), the Court affirmed a judgment of restitution in favor of a victim of child pornography.The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography...

Shannon: Purchase is not Possession

Posted on January 26, 2011
In U.S. v. Shannon, No. 10-10599 (Jan. 26, 2011), the Court held that a prior conviction for the purchase of cocaine in violation of Florida law did not qualify as a ?controlled substance offense? for purposes of ?career offender? status under the Guidelines...

Jerchower: Amendment 732 was Clarifying Amendment

Posted on January 25, 2011
In U.S. v. Jerchower, No. 09-13795 (Jan. 25, 2011), the Court held that Amendment 732 was a ?clarifying amendment? and therefore retroactively applicable.Amendment 732 provides that the ?undue influence? enhancement for defendants convicted of prohibited sexual conduct does not apply when the only ?minor? was an undercover law enforcement officer...

Diaz: Involuntary Medication to Render Defendant Mentally Competent for Trial

Posted on January 14, 2011
In U.S. v. Diaz, No. 09-15421 (Jan. 12, 2011), the Court affirmed a district court?s grant of permission to medicate a defendant involuntarily in order to render him mentally competent to stand trial.After reviewing at length the expert reports regarding Diaz?s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a ?substantial likelihood that anti-psychotic medication will restore Diaz to competency,? and that this medication ?is not substantially likely to cause side effects that would interfere with Diaz?s ability to assist counsel...

Diaz: Freedom qualified as "thing of value"

Posted on January 14, 2011
In U.S. v Townsend, No. 09-12 (Jan. 13, 2011), the Court affirmed convictions of a Miami-Dade County corrections officer, convicted for giving a defendant on pretrial release greater freedoms in exchange for bribes.The Court found that giving greater freedom to a defendant on pretrial release qualified as a ?thing of value of $5,000 or more? for purposes of the bribery statute, 18 U...

Ruff: Appeal Waiver is valid

Posted on January 10, 2011
In U.S. v. Ruff, No. 09-16304 (Jan. 5, 2011), the Court dismissed an appeal because the defendant signed an appeal waiver in connection with his guilty plea.The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver...

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