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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

Dorsey: Failure to File 5K1.1 can be unconstitutional

Posted on January 15, 2008
In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government?s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court?s downward departure based on the defendant?s cooperation, independent of a government motion...

Brown: Letters to parole board don't toll AEDPA

Posted on January 11, 2008
In Brown v. Barrow, No. 06-11004 (Jan. 11, 2008), the Court held that a Georgia inmate?s federal habeas petition challenging a denial of parole was time-barred by AEDPA?s one-year statute of limitations, when it was filed seven years later. The Court rejected the argument that the inmate?s letters to the parole board tolled the limitations period...

Snipes: No interlocutory appeal of venue

Posted on January 09, 2008
In U.S. v. Snipes, No. 08-10114 (Jan. 8, 2008), the Court dismissed a defendant?s interlocutory appeal. The defendant sought to appeal, prior to trial, the venue in his case. The Court noted that an order pertaining to venue is effectively reviewable after entry of judgment, citing U...

Palma: Facts Did not Support "Innocent Transitory Possession" Defense

Posted on January 04, 2008
In U.S. v. Palma, No. 06-14884 (Jan. 4, 2008), the Court rejected the defendant?s claim that, at his trial for being a felon in possession of a firearm and ammunition, the district court should have instructed the jury that a "transitory or temporary innocent possession" would be a defense to the charge...

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McBride: No Clear Error in 84-month sentence for child pornography distributor

Posted on January 02, 2008
In U.S. v. McBride, No. 06-16544 (Dec. 28, 2007) (2-1) (Dubina, J., dissenting), on a government appeal, the Court affirmed an 84-month sentence ? below the 151-188 months guideline range ? and a ten-year term of supervised release ? below the Guideline recommended life term ? for a defendant convicted of distributing child pornography in violation of 18 U...

King: No Reasonable Expectation of Privacy in Shared Computer Files

Posted on December 17, 2007
In U.S. v. King, No. 07-11808 (Dec. 14, 2007), the Court rejected Fourth Amendment challenges to a computer search of a defendant convicted of possessing child pornography, and, ruling against the government?s sentencing appeal, affirmed the district court?s ruling that King?s contemporaneous conviction for transporting child pornography did not count as a "prior conviction" for the purpose of imposing a mandatory ten years? sentence...

Straub: No Subject Matter Jurisdiction needed for Criminal Contempt

Posted on November 30, 2007
In U.S. v. Straub, No. 06-14354 (Nov. 29, 2007), the Court affirmed the criminal contempt conviction of a defendant who violated a court order to not be present during the removal of property from specific premises.The defendant claimed that the district court lacked jurisdiction to hold him in criminal contempt, because the court later determined that it lacked subject matter jurisdiction over the case...

Dohan: No Improper Vouching

Posted on November 29, 2007
In U.S. v. Dohan, No. 06-14320 (Nov. 28, 2007), the Court affirmed the conviction of a defendant charged with fraud and money-laundering.Reviewing for "plain error," the Court rejected the argument that the government should have corrected a cooperating witness testimony that he was testifying of his own volition, when he was in fact still subject to supervised release...

Foley: Sentencing Court abdicated responsibility

Posted on November 26, 2007
In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes...

Hurtado: Misuse of Identification Does not require theft

Posted on November 26, 2007
In U.S. v. Hurtado, No. 07-11138 (Nov. 21, 2007), the Court affirmed the conviction of a defendant convicted of unlawfully using another person?s identification, in violation of 18 U.S.C. § 1028A(a)(1).The Court rejected the argument that the conviction should be vacated because proof that the defendant "stole" the identification of another, and proof that the defendant knew that the identification was of an "actual person," were elements of the offense, which the government failed to prove...

Drury: Denial of rehearing not AEDPA limitations start point

Posted on November 14, 2007
In Drury v. U.S., No. 07-12130 (Nov. 13, 2007), the Court held that, for purposes of determining the starting point for AEDPA?s one-year statute of limitations for § 2255 claims, the period begins to run when the Supreme Court denies certiorari, not thereafter, when the Supreme Court denies a motion to rehear the denial of certiorari...

Davis v. Jones: Appearance of Impartiality not required by due process

Posted on November 13, 2007
In Davis v. Jones, No. 06-15530 (Nov. 8, 2007), the Court denied habeas relief to an Alabama inmate who claimed that the fact that the State?s attorney was the brother of the Alabama judge who presided over certain pre-trial proceedings created an appearance of impartiality that violated Due Process...

Jackson: Physical evidence resulting from un-Mirandized statement

Posted on November 13, 2007
In U.S. v. Jackson, No. 06-15186 (Nov. 9, 2007), the Court affirmed the denial of a Miranda-based motion to suppress.The defendant gave an un-Mirandized statement to police, as a result of which the police found a firearm and ammunition in his home. The statement itself was voluntary, and the defendant was not seeking to suppress the statement, but the fruit of the search based on the statement...

Mintmire: Lawyer Obstruction Conviction Upheld

Posted on November 13, 2007
In U.S. v. Mintmire, No. 06-11212 (Nov. 13, 2007), the Court affirmed the convictions of a Florida lawyer charged with attempting to obstruct a grand jury investigation into a stock sale.The Court rejected a challenge to the sufficiency of the evidence...

Mangaroo: Probation Plain Error for 924(c) sentence

Posted on October 31, 2007
In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies...

Moore: Rule 29 Motion in VA theft

Posted on October 29, 2007
In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court?s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son...

Robison: CWA Convictions Reversed

Posted on October 26, 2007
In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v...

Brown: Union officials convictions upheld

Posted on October 25, 2007
In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members...

Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive

Posted on October 23, 2007
In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There?s no need of sending any notes that you can?t agree, because you are going to stay here for a long time...

Delancy: Consensual search not fruit of poisonous tree

Posted on October 04, 2007
In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant?s girlfriend?s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual...

Khanani: "Proceeds" are not proceeds of the labor

Posted on October 02, 2007
In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court?s entry of a judgment of acquittal on the money laundering counts...

Ramirez: Second 851 Notice Unnecessary

Posted on September 27, 2007
In U.S. v. Ramirez, No. 06-16404 (Sept. 11, 2007), the Court held that when the government, after filing an original notice of intent to seek a mandatory life sentence, in accordance with 21 U.S.C. § 851(a)(1), thereafter filed a new information, but neglected to file a new § 851 notice, the omission did not prevent the imposition of a life-sentence...

Fields: Knowledge of out of state residency of child is essential element

Posted on September 21, 2007
In U.S. v. Fields, No. 06-13784 (Sept. 21, 2007), the Court reversed the conviction of a defendant convicted of willfully failing to pay past due child support, in violation of 18 U.S.C. § 228(a)(1).The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state...

Valdes: No reasons for extraordinary variance

Posted on September 20, 2007
In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.The Court noted that if the district court intended to apply an upward departure under USSG 4A1...

Otero: Counsel not ineffective for failing to appeal

Posted on September 18, 2007
In U.S. v. Otero, No. 06-15791 (Sept. 17, 2007), the Court held that Otero?s lawyer had no constitutional duty under the criteria of Roe v. Flores-Ortega, 528 U.S. 470 (2000) to consult Otero about an appeal, and therefore denied Otero?s § 2255 motion based on counsel?s failure to file an appeal...

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