Contact Jenny Moore for more information at

404-688-7530 or Jenny_Moore@fd.org.

Today's Supreme Court Opinions

The following opinions were issued in the Supreme Court today:

Fowler - The federal witness tampering statute applies only if it was likely the information would have been communicated to a federal officer.

Camreta - The Fourth Amendment case about seizing and interviewing suspected child victim of abuse without warrant - mooted out due to child's current age, but lots of justiciability and qualified immunity procedure.

Tinklenberg - Speedy Trial Act - time for disposition of motions is excluded, irrespective of whether motion might actually cause delay in proceedings, but over ten days for transport for competency excluded. Weekends and holidays are counted in calculating the ten days. Affirmed dismissal.

En Banc Relief Denied by Eleventh Circuit

Today, the Court of Appeals issued a 105 page opinion in Ezell Gilbert v. United States of America, No. 09-12513, overruling the original panel's decision granting habeas relief to Mr. Gilbert. Mr. Gilbert, who has served more than fourteen years in prison, sought release from custody because one of the convictions that made him a Career Offender was ruled not to be a "crime of violence". United States v. Archer, 523 F.3d 1347 (11th Cir. 2008). As a result of that ruling, his sentencing guideline range was substantially reduced from 292 - 365 months down to 151 - 188 months. Mr. Gilbert raised this issue years earlier in his direct appeal, but failed to allege it in his pro se Section 2255 petition filed in 1999. The en banc panel ruled that the Savings Clause of Section 2255 (e) does not permit a defendant to bring a Section 2241 petition to remedy a guidelines miscalculation that would be barred by the "second or successive motions" prohibition of Section 2255(h).
Senior Judge James C. Hill stated in his dissenting opinion that "[t]oday, this court holds that we may not remedy such a sentencing error. This shocking result - urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice - and accepted by a court that emasculates itself by adopting such a rule of judicial impotency - confirms what I have long feared. The Great Writ is dead in this country . . . The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also."
Mr. Gilbert, who was released from custody pending en banc review, has been ordered to immediately surrender.

- RCS

New York Case Underscores Wi-Fi Privacy Dangers.

Click here for link to the AJC story.

Proposed Guideline Amendments

The Sentencing Commission has proposed amendments to the Sentencing Guidelines.  You may find them by clicking here:  http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20110119_RFP_Amendments.pdf.

There are at least two notable defense friendly amendments:
1. Elimination of supervised release for many deportable aliens, except in cases of mandatory supervised release terms such as in drug cases.  See page 79 of the document linked above.
2. Offense level relief on old illegal reentry enhancement predicates.  If a conviction is too old to count for criminal history points then it would count for at most an eight offense level bump.  See page 87 of the document linked above.
3.  The emergency crack amendments are also re-issued as regular guideline changes with some tweaks.

NK

Eleventh Circuit Applies Padilla to Civil Commitment Under State Law

In Bauder v. DOC Florida, the Eleventh Circuit, citing Padilla, affirmed the grant of a 2254 petition based on ineffective assistance of counsel in advising client that plea to aggravated stalking of minor would not subject him to involuntary civil commitment under Florida law.

Eleventh Circuit rules that possession of a short barreled shotgun under Florida law is not a violent felony predicate under the Armed Career Criminal Act.

On Wednesday September 8, 2010, in United States v. McGill, 14167 (11th Circuit), the Eleventh Circuit ruled that possession of a short barreled shotgun under Florida law is not a "violent felony" under the Armed Career Criminal Act.  In order to qualify as a violent felony under the Armed Career Criminal Act, a prior conviction must meet the statutory definition which provides that such an offense must be a felony that  (i) “has as an element” the actual, attempted, or threatened use of force against another person; or (ii) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B).

The Supreme Court opinion in Begay establishes a three step process for determining whether a particular prior conviction qualifies as a violent felony:

(1)  The offense is to be considered generically according to the elements required for conviction.

(2)  The court must determine whether the generic offense “involves conduct that ‘presents a serious potential risk of physical injury to another.’”

(3)  If the offense does present such a risk, the court determines whether that risk is “roughly similar, in kind as well as in degree of risk posed,” to the clause’s example crimes: burglary, arson, extortion, and the unlawful use of explosives.

In McGill's case, the Eleventh Circuit found that possession of a sawed off shotgun did present a risk of physical injury to another.  However, the panel found that the analysis did not survive the third step because possession of a sawed off shotgun did not present a risk similar in degree and kind to burglary, arson, extortion, or the use of explosives.  Particularly significant was the similarity between possession of explosives and possession of a sawed off shotgun.  However, Congress chose not to include possession of explosives, only use of explosives.

The Eleventh Circuit therefore rejected the Government's appeal and affirmed the sentence and ruling of the Middle District of Florida.

Cracking the Crack Code: Fair Sentencing Act of 2010

On August 3, 2010, the President signed the Fair Sentencing Act of 2010 (S. 1789), reducing the statutory sentences for crack cocaine offenses. The 100 to 1 disparity between crack and powder cocaine sentences has been reduced to 18 to 1. The statutory penalties for powder cocaine offenses remain the same. Now, 28 (as opposed to 5) grams of crack calls for the mandatory minimum five-year sentence, and 280 (as opposed to 50) grams of will trigger the mandatory minimum ten-year sentence. Also, the five-year mandatory minimum for simple possession of crack cocaine has been eliminated. The reduced penalties, however, are not retroactive.

The purpose of the Act is to “restore fairness to Federal cocaine sentencing” by reducing the crack / powder disparity to 18:1. Attorneys in the Northern District of Georgia may be wondering whether the Act applies to their cases where the criminal conduct transpired under the old act; and, at the time of enactment, their case is pre-plea, post plea, or currently on appeal.

Whenever there has been a statutory change in the law, the general rule is that the new statute governs cases pending on the date of its enactment unless manifest injustice would result or there is statutory direction or legislative history to the contrary. United States v. Schumann, 861 F.2d 1234, 1238 (11th Cir. 1988); United States v. Kolter, 849 F.2d 541, 543 (11th Cir. 1988); Bradley v. School Board of Richmond, 416 U.S. 696, 711-14, 94 S.Ct. 2006, 2016-17, 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (Former 5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980). Manifest injustice would result if a defendant does not receive the benefit of a law enacted to restore fairness to crack cocaine sentencing. There is no statutory direction or legislative history to the contrary in the FSA. In fact, the FSA was enacted “[t]o restore fairness in Federal cocaine sentencing.” P.L. 111-220.

If your client’s case is in the district court, or on appeal, it is considered pending and not yet final on the date of the FSA’s effective date , August 3, 2010. United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); Griffith v Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). Consequently, the FSA should apply to all cases that are pending and not yet final.

Thanks to our colleagues Lynn Fant and Victoria Brunner for this post.

BREAKING NEWS: Bruce Morris gets 19 Not Guilty Verdicts !!!!!!!!!!!!!!!!!!!

Bruce Morris represented a client who was the last one standing in the the long-running Home Depot fraud prosecutions. AUSAs Barbara Cash and John Fitzpatrick, from the Antitrust Division, argued that the client had paid kickbacks to a Home Depot employee to get business contracts. Bruce's defense was that his client did indeed share his commissions with the Home Depot employee, but he did not conspire to defraud Home Depot. Bruce told the jurors that while what his client may have been unethical, he did not violate the wire fraud and mail fraud statutes.

The trial judge summoned Bruce and his client to return to the courtroom after a mere 30 minutes of deliberations to hear the sweet melody of "not Guilty" read nineteen times over!!

Congratulations to Bruce Morris who stood his ground and prevailed.

(Our thanks to Colette Resnik Steel who provided the post text.)
 
It seems this year's Acquittal Club is growing!!!

Space Remains for CJA Panel Attorneys and Federal Defender Staff

For the Multi-Track Federal Criminal Defense Seminar and the Fundamentals of Federal Criminal Defense Training, to be held in Miami, FL, Thursday to Saturday, August 12-14, 2010, and Thursday, August 12, 2010,respectively. Both programs are free to CJA practitioners.

Florida has approved the Multi-Track program for 17.50 general CLE credit hours, 1 hour of ethics, and 1 hour of mental awareness.  It has approved the Fundamentals Track for 8.5 general credit hours.  Alabama has approved the seminar for 22.3 general credit hours and 1 hour of ethics.  Georgia has approved 21.25 hours of general credit and 1 hour of ethics.

The seminar is designed to offer in-depth instruction in a variety of substantive criminal defense topic areas. Five of the tracks - Fraud, Computer Crimes, Immigration, Sentencing and Forensics - will be presented in four distinct hour-long time blocks that are each presented twice, providing seminar participants with the opportunity to attend two of the five separate tracks taking place on
Thursday and Friday.  On Saturday, additional valuable topics will be presented that are of general interest and importance to criminal defense practitioners.  Past attendees wrote about this programs:  "Learned lots of tips and strategies;" and "Excellent!  Great presentations and very important information."

On Thursday, August 12, 2010, there will be a full, one-day training - Fundamentals of Federal Criminal Defense - specifically designed for practitioners who are new to federal criminal defense practice. It will provide them the opportunity to receive instruction on the areas most vital to providing an effective defense for their clients.

A description and agenda can be found on the Training Branch's web site, www.fd.org, where one can also register for the seminars(participants should register separately for Multi-Track and the Fundamentals Training if they intend to attend both).

For questions about the substance of the program, please contact Eric Vos at Eric_Vos@ao.uscourts.gov. For questions about logistics, please contact Jenna Shepard at Jenna_Shepard@ao.uscourts.gov.