Eleventh Circuit applies the reasoning of Begay to hold that a conspiracy which does not require an overt act is not a predicate for career offender.

http://www.ca11.uscourts.gov/opinions/ops/200910521.pdf

In 2008 in Begay, the Supreme Court used a categorical approach to conclude that DUI does not qualify as a violent felony for purposes of the Armed Career Criminal Act.  In United States v. Whitson, 09-10521, the Eleventh Circuit followed the reasoning in Begay to find that a conspiracy to commit a strong arm robbery which does not require an overt act is not a crime of violence for career offender purposes.  Since the crime of conspiracy is not on the list of example crimes of violence, it is examined in the residual category in a three step process. First, the court looks at the elements required to violate the statute in question (in this case South Carolina conspiracy).  The South Carolina conspiracy involved in this case did not require an overt act, such that the statute is violated once there is an agreement to do an unlawful act.  Then the court considers whether there is a risk of violence associated with the crime.  Then under Begay, the court must also consider whether the crime is roughly similar in kind as well as the degree of risk posed.  Because the Eleventh Circuit found that South Carolina conspiracy is not similar, it found that it is not a predicate for career offender.  This creates a split with the Fourth Circuit.

Supreme Court decides in Maryland v. Shatzer that Edwards's prohibition against further interrogation once a suspect invokes his right to counsel expires two weeks after a break in custody.

On Wednesday, the Supreme Court issued its opinion in Maryland v. Shatzer, concerning the amount of time law enforcement must wait before re-initiating questioning after a citizen has invoked the right to counsel.  A law enforcement officer went to see defendant Shatzer who was in custody for one offense, in order to question Shatzer about his possible involvement in another offense, sexual abuse of his son.  Shatzer refused to talk without an attorney.  The investigative file on the sexual abuse of the son was closed.  Shatzer then was released back into the general prison population.  Two and one half years later, another investigator goes to question Shatner again about the sexual abuse of his son.  Shatzer waives his rights and makes incriminating statements.

Traditionally, under Edwards v. Arizona, law enforcement officers are prohibited from any further interrogation of a defendant who has invoked the right to the presence of an attorney during police questioning.  However, the Supreme Court found that two and one half years after a break in Miranda custody is sufficient to dissipate the coercive effects of police custody.  Actually, the Supreme Court went further and held that two weeks after a break in Miranda custody is sufficient.  Thus, when a citizen in police custody invokes his or her right to have an attorney present during questioning, the citizen becomes fair game for further attempts at interrogation two weeks after a break in Miranda custody.  Or in Justice Scalia's parlance, the Edwards protective umbrella remains open for two weeks after the break in Miranda custody.  After that, it is up to the citizen to re-invoke rights.

The Supreme Court also reaffirmed the concept that a person in a prison is not in custody for Miranda purposes if the person is in general population.

The Burgess and O'Brien oral argument took place in the Supreme Court today.

The transcript of the oral argument in Burgess and O'Brien on the issue of whether the type of firearm involved in a 924(c) violation is an offense element or sentencing factor makes for interesting reading and is posted HERE.

Eleventh Circuit finds that Rule 35 applies to resentencings on crack motions, just as it does in original sentencings. Thus, the district court has no jurisdiction to modify a crack reduction after the passage of 7 days.

In United States v. Ronald Phillips, 09-11210, (Carnes, Hull, Anderson), the Eleventh Circuit held that Rule 35's limitations on modification of a sentence applies with equal force to crack resentencings as it does in original sentencings.  Therefore, when a district court imposes a sentence of imprisonment, that sentence cannot be modified beyond the seven day limit on motions to correct as stated in Rule 35.  The Government had argued that Rule 35 does not apply to crack reductions and that the district court had the authority to entertain a motion for reconsideration even after the expiration of seven days.  The Eleventh Circuit found, however, that "A sentencing, whether imposing the initial sentence or a subsequent different sentence, is a sentencing."  Thus, Rule 35 divests the district court of any jurisdiction to reconsider after seven days have passed.  Or as Dr. Seuss might say, "A sentencing's a sentencing, no matter how small."

Way to go Jake.

SUPREME COURT ARGUMENT ON TUESDAY REGARDING 924(C): Is the type of firearm an element or a sentencing factor pursuant to 18 U.S.C. 924(c)(1)(b)(II) in order to invoke the 30 year minimum mandatory sentence?

On Tuesday, the Supreme Court will hear argument on another issue relating to 18 U.S.C. 924(c).  (See earlier post relating to the cert grants in Abbott and Gould on the except clause of 924(c).)  Specifically, the Court will decide whether the type of firearm involved in a crime of violence or controlled substance offense should be treated as an offense element under 18 U.S.C. 924(c)(1)(B)(ii) as amended in 1998.  The case is United States v. O'Brien and Burgess, 08-1569.

O'Brien and Burgess were convicted in federal court in Massachusetts of participation in an armored car robbery in which a machinegun was among several firearms that were used.  Prior to trial, the defendants had asked the court to separate out the 924(c) machinegun count from the other 924(c) count.  They reasoned that the machinegun 924(c) was a different crime than the 924(c) for the firearms that were not automatic, since the machinegun count required a mandatory minimum sentence of 30 years.  The district court agreed.  The Government then conceded that it could not prove that defendants had knowledge that the firearm was fully automatic and dismissed the count that related only to the machinegun.  At sentencing, the Government nevertheless asked for a 30 year mandatory minimum to be imposed for the machinegun under 924(c)(1)(B)(ii).  The district court refused.  The First Circuit affirmed the judgment of the district court, but did so "reluctantly" citing the Supreme Court's opinion in Castillo which interpreted the older version of 924(c).

Prior to its amendment in 1998, 924(c) specified a series of definite sentences applicable to various ways of violating the statute and various types of firearms.  For instance, the use of a firearm during a crime of violence required a sentence of 5 years.  If it was brandished, the required sentence was 7 years.  If the offense involved a machinegun, the required sentence was 30 years.  However, when Congress amended the statute in 1998, the required sentences were changed to a series of mandatory minimum sentences.  This distinction, according to the Government, made it clear that Congress intended that under the new statute, the different ways of violating 924(c) be treated as sentencing enhancements. 

Mandatory minimum sentencing schemes have been viewed differently than situations which change the maximum sentence that a defendant is exposed to.  Under McMillan v. Pennsylvania, decided in 1986, the Supreme Court found that a mandatory minimum sentencing scheme out of Pennsylvania did not offend the Constitution where the facts necessary to invoke the mandatory minimum sentence were determined by a judge by a preponderance, rather than having to be pled and proven to a jury.  In McMillan, however, the Supreme Court specified that where the sentencing enhancement became the tail that wagged the dog of the sentence, such a situation might offend the Sixth Amendment if it were not treated as an offense element.  Here, the defendants are likely to argue that the tail IS in fact wagging the dog, since the sentenicng enhancement (or mandatory minimum) is thirty years.  The National Association of Federal Defenders has filed an amicus brief on behalf of the defendants.

For a more comprehensive preview of the oral argument click HERE.

RENEWED NATIONAL FOCUS ON FIXING THE PROBLEMS WITH THE CRIMINAL JUSTICE SYSTEM: The National Criminal Justice Commission Act of 2009

As we continue the business of representing individuals who come before the Northern District of Georgia to answer to criminal charges, it is important to be cognizant of the increasing national dialogue on the problems of the criminal justice system, including the problem of over-incarceration and the lack of effective ways to help ex-offenders to reintegrate themselves into the community.

This past Friday, the New York Times endorsed the National Criminal Justice Commission Act of 2009 which was introduced by Virginia Democratic Senator Jim Webb (pictured below right) on March 21, 2009. The bill cleared an important Senate hurdle by passing the Senate Judiciary Committee on January 21, 2010. The bill would create a Blue Ribbon Commission to study ways to reform the American Criminal Justice System, inclusive of state as well as federal systems. It has received strong bipartisan support as well as praise from members of Congress. It will now head to the full Senate for consideration. If it passes, it will be the first time there has been a comprehensive study of the criminal justice system since 1965.

Senator Jim Webb's statement on the bill is as follows:

The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.

Why We Urgently Need this Legislation:

• With 5% of the world's population, our country now houses 25% of the world's reported prisoners.
• Incarcerated drug offenders have soared 1200% since 1980.
• Four times as many mentally ill people are in prisons than in mental health hospitals.
• Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.
• Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

Senator Webb continues that: America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous.

We are wasting billions of dollars and diminishing millions of lives. We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.

The New York Times endorsement piece is here.

On the same day that the New York Times endorsed the National Criminal Justice Commission Act of 2009 (or Senate Bill 714), Attorney General Eric Holder made the following remarks to a group of law enforcement officers which he addressed last Friday:

Let me be clear, we enhance public safety by incarcerating those who harm our neighbors and our communities. This is a fact. But in our work to protect the American people, incarceration cannot be our only law enforcement strategy. We’ve learned that simply building more prisons and jails will not solve all our problems. It’s time to face facts about our current approach to incarceration. It’s not sustainable. It’s not affordable. And we’ve seen that it isn’t always as effective as we think in reducing crime and keeping Americans safe.

The full text of Attorney General Holder's remarks last Friday are here.

HAPPY PRESIDENT'S DAY!! To celebrate, GAN Defenders Blog confers honorary Acquittal Club membership on two former Presidents.

If President's Day weekend is a time to reflect on the contributions of the men who have so far held our nation's highest office, GAN Defenders Blog would add to that reflection that at least two former Presidents would have been members of the Acquittal Club (if there was such in those days).

Abraham Lincoln is said to have handled 27 criminal cases during his career as a prairie lawyer.  In his most famous criminal trial, Lincoln defended a man named William Duff Armstrong who was accused of murder. The key moment in the trial was during Lincoln's cross examination of a man who claimed to have been an eye witness to the crime.  Lincoln pulled out a copy of the Farmer's Almanac and asked the court to take judicial notice of the fact that the moon would have been at such a low angle on the night of the crime as to make visibility of the crime impossible.  Armstrong was acquitted.  (1858)

John Adams is often credited with being the first "public" defender for his role in defending the men who were accused in the charges that arose from the Boston Massacre.  Despite overwhelming public sentiment against the British soldiers, John Adams was able to obtain full acquittals for six of the soldiers and reduced charges for two others.  Adams then saved those who had been convicted of charges from execution by invoking a provision which spared the lives of those who could prove they were literate.

Welcome to the Acquittal Club Presidents Lincoln and Adams!  Hey Jake, where should we send the T-shirts?

Comment:

Leigh said:  Seems Adams just waltzed right through that conflict. I say - take the T-shirt back.

ONLINE RESOURCE: Benchbook for federal district courts from the Federal Judicial Center is posted online.

Some may be surprised to know that the benchbook used by district court judges in federal court is available online from the Federal Judicial Center.  While the current edition of the benchbook has a general publishing date of 1996, and the most recent updates go back to March of 2000, the benchbook is still a good resource to have for general questions on many issues of law in federal criminal practice.

Click here for the link to the Federal Judicial Center Benchbook.

Fourth Circuit reversal where district court failed to recognize its authority to sentence below the guidelines range based upon a defense argument relating to the crack powder ratio.

An assistant federal defender in the Fourth Circuit has won reversal of a case out of the Fourth Circuit in which the district court refused to consider a request for a below guidelines sentence on a crack powder ratio argument.  In United States v. Herder,  the defendant received a sentence at the low end of the guideline range, but the sentence was procedurally unreasonable since the district court refused to consider its authority to sentence below the guidelines in light of the crack powder disparity.  Any time a district court refuses to recognize its authority to sentence outside the guidelines range or applies a presumption of reasonableness to a guidelines range, this is procedural unreasonableness.  Practitioners should object on both substantive and procedural unreasonableness grounds.

Additional Press Coverage on the Child Pornography Restitution Issue

We have covered a number of the developments on the issue of whether defendants who possess and/or distribute child pornography images can be hit with restitution by the subjects of the photographs even where the defendant absolutely no contact with the child victims.  Look for our previous posts on this issue and the litigation by the Marsh firm and others.  There has been a good bit of press coverage on this issue and at least three district courts have issued varied opinions on the issue so far in this district.  We wanted to alert our followers to an additional article on this issue by the Associated Press which appears in the Atlanta Journal Constitution.

Click HERE for a link to the article.

11th Circuit upholds aggravated identity theft conviction finding that a rational trier of fact could infer that defendant had knowledge documents belonged to a real person since defendant submitted documents to State Department which had a rigorous verification process and since defendant used documents to obtain credit to purchase a car.

In United States v. Holmes, 09-14035 (11th Circuit February 5, 2010) (per curiam), the Eleventh Circuit affirmed an aggravated identity theft conviction finding the evidence sufficient to allow a rational trier of fact to infer the knowledge element of 18 U.S.C. 1028A.  The defendant Natalie Holmes was tried for aggravated identity theft and other crimes in the Southern District of Florida.  The Government presented evidence that Ms. Holmes had used documents belonging to a United States citizen to obtain a Florida driver's license, a passport and credit to purchase an automobile.  The defendant argued that the Government had not proven that she knew the documents belonged to an actual person.  The district court instructed the jury that it had to find that the defendant knew that the documents belonged to a real person in order to find her guilty of aggravated identity theft pursuant to 18 U.S.C. 1028A.  The Eleventh Circuit found that the Government's evidence concerning the rigorous verification process for passport verification, the return of the birth certificate to Holmes after the passport application was reviewed and the fact that the defendant used the documents to obtain credit to purchase a vehicle all supported a rational inference that the defendant knew that the documents belonged to an actual person.

ELEVENTH CIRCUIT EN BANC CASE PREVIEW: Oral arguments Tuesday to the full court on whether a 210 month sentence was too lenient for a man convicted of using minors to produce sexually explicit visuals for distribution in United States v. William Irey.

On Tuesday, the United States Attorney's Office for the Middle District of Florida will try to convince the Eleventh Circuit Court of Appeals (en banc) that it should reverse a 210 month sentence as too lenient for a 51 year old man convicted of using minors to produce sexually explicit visual depictions for distribution. The defendant's guidelines range was life. However, the statutory maximum was 360 months.

Judge Edmondson affirmed the district court's sentence in March explaining that "appellate judges are not authorized to substitute their personal views of what might be the best sentence for the sentence imposed by the district court." United States v. Irey, 563 F.3d 1223 (11th Cir. 2009) (vacated for rehearing en banc). Finding no procedural unreasonableness, Judge Edmondson concluded that the Government failed to carry its burden of demonstrating that the sentence was unreasonable. The three judge panel also included Hill and Tjoflat.  Judge Hill wrote a special concurrence indicating his strong disagreement with the sentence imposed, but agreeing with Judge Edmondson that the district court had the discretion to impose the 210 month sentence.

The Eleventh Circuit decided sua sponte to consider the issue en banc even after the time had passed for either side to seek a petition for certiorai.  The full court will hear oral arguments on the case on Tuesday at 9:00am. William Irey is represented by William Ponall (below right) and Kirk Kirkconnell (below left). The Assistant United States Attorney handling the case is Peggy Ronca. 

This case is a test of the independence and discretion of district courts to impose sentences which they deem reasonable after full consideration of the factors pursuant to Title 18, United States Code section 3553.

FALSE CONFESSIONS ISSUE SPOTLIGHT: New law review article on false confessions seeks to explain the pathways that lead to the problem.

Professors Richard A. Leo of University of San Francisco and Steven A. Drizin of Northwestern have published an article on the problem of false confessions in the criminal justice system which often play a key role in wrongful convictions. According to the Leo and Drizin, there are three errors which form a classic pathway to a wrongful conviction. They are: (1) an incorrect assumption that a suspect is guilty, followed by (2) a guilt-presumptive interrogation which includes lies about the state of the evidence and (3) promises and/or threats. Once a confession is obtained, there is often a further pressure for the suspect to produce a narrative to support the confession which is often contaminated by facts fed to the suspect with public and sometimes nonpublic facts about the crime. Click on the link below for the article which was featured this morning on the Criminal Law Professors Blog.

Leo and Drizin, The Three Errors: Pathways to False Confession and Wrongful Conviction.

President Obama nominates Macon trial attorney Marc Treadwell to the United States District Court for the Middle District of Georgia.

Macon trial attorney Marc Thomas Treadwell, a partner in the law firm of Adams Jordan & Treadwell, was nominated to the federal bench in the Middle District of Georgia earlier today. Treadwell is a native of Blackshear, Georgia. He represents mainly plaintiffs in civil lawsuits. He also teaches at Mercer Law School in Macon. Treadwell was one of four judicial nominees whose names were forwarded to the Senate on Thursday.

Click here for more information on Mr. Treadwell's background and experience.

11th Circuit holds that parties are entitled to notice and an opportunity to be heard when district court considers new information in a crack reduction case pursuant to 3582.

United States v. Jules, S.D.Ga. (11th Cir. 2/2/10) (Dubina, Birch, Black):  Southern District of Georgia Defendant came back on a crack reduction proceeding.  The district court found that it had jurisdiction to reduce the defendant's sentence, but it decided not to do so after learning from the probation department that the defendant had been in trouble while incarcerated.  The parties were not told that this information was received or that it would be considered.  The defendant appealed on the ground that he was not given notice that this information would be considered, nor was he given an opportunity to address the information relied upon by the court.  

The Eleventh Circuit reversed holding that the parties had to be given notice and an opportunity to be heard on the new information even though the proceeding was a lesser procedural event than the original sentencing.

http://www.ca11.uscourts.gov/opinions/ops/200813629.pdf

Looking for a good primer on DNA evidence?

Well, look no further, the website How Stuff Works has a primer on DNA evidence that is at least a good start for anyone wishing to learn the ropes relating to DNA evidence.  Find a link to the website HERE.