Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: January, 2013

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

A Hollow Victory in Lozman v. City of Riviera Beach, Timeliness of Habeas Claims, and Disqualification of Judges Who Are Facebook Friends with Prosecutors

It’s already mid-week, but I wanted to pass along a few things that might interest you.  Remember the guy Fane Lozman who was fighting the City of Riveira Beach over marina fees owed for his houseboat?  Well, the United States Supreme Court issued an opinion in his case, Lozman v. City of Riviera Beach, No. 11-626.  The Supreme Court reversed the Eleventh Circuit, making Lozman the victor.  Too bad the City already destroyed his houseboat.

The Eleventh Circuit recently issued an en banc opinion in Michael Duane Zack v. Kenneth Tucker, No. 09-12717, wherein the Court held that the AEPDA statute of limitations applies claim-by-claim, rather than to the petition as a whole.  If you handle a lot of habeas cases, the opinion is worth a quick read.  My least favorite part of the opinion?  Judge Carnes’ concurrence, where he ridicules the position taken at oral argument by one of the attorneys as absurd.  Ouch.

Finally, attorneys throughout the State of Florida, civil and criminal alike, might want to monitor the case of Pierre Domville v. State, 4D12-556, where the Fourth District Court of Appeal has certified a question of great public importance to the Florida Supreme Court:  “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”  An article in the Palm Beach Post can be read here.

Will Police Officers Need A Warrant To Take Nonconsensual Blood Samples in DUI Cases?

Florida’s DUI defense attorneys should know that the United States Supreme Court heard oral argument in a DUI blood case on January 9, 2013.  In Missouri v. McNeely, SC 11-1425, the question presented is: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Although the Palm Beach Post published a brief report on the arguments, a more thorough discussion of the oral argument can be found at SCOTUSblog.  After reading the SCOTUSblog discussion, it seems that the Justices may be leaning towards requiring a warrant before a blood draw can be taken, except in exigent circumstances.  Here’s a few paragraphs from SCOTUSblog:

Endlessly repeating the claim that there would never be enough time to get a warrant before alcohol content would dissipate, as the lawyers for the state and for the federal government did, seemed to impress not one member of the Court.  Even a Justice broadly sympathetic to law enforcement, like Justice Samuel A. Alito, Jr., used his questions to explore when officers in rural communities would be given a pass on a warrant requirement, without suspending that requirement altogether.

A few minutes into Missouri’s argument , by John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., Justice Antonin Scalia set the tone that would prevail.  “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?”  That question immediately demolished the notion that a blood test is not an invasive procedure and, being a form of force, was something that should not be left within complete police discretion.   And, of course, the only way to keep the procedure from being simply a matter of police choice was to require them to ask someone neutral for permission — in other words, seek a warrant.

Koester [also] learned quickly that Justice Anthony M. Kennedy, always a potential “swing” voter, was deeply skeptical of the never-enough-time argument.   Kennedy noted that half of the states do not allow the taking of DUI blood samples without a warrant, and they have streamlined procedures for issuing warrants that deal with the alcohol dissipation phenomenon.   “Does that bear on the question of reasonableness?” Kennedy asked, rhetorically.

Given the tenor of the Justices’ questions at oral argument, this case has potentially huge implications for Florida’s Implied Consent law.  Florida’s DUI defense and criminal appeals attorneys should stay tuned.  To read a transcript of the oral arguments, click here.  The audio recording should be available at the end of the week, on Friday, January 11, 2013.  The general page for links to the US Supreme Court audio recordings can be found by clicking here.

Eleventh Circuit Issues En Banc Opinion in Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920

The United States Court of Appeals for the Eleventh Circuit has recently released an en banc decision in the habeas appeal of Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920.  As far as Eleventh Circuit opinions go, it’s rather long at 72 pages, but considering that it’s an en banc opinion, the 72 pages seems unexpectedly short.  As one familiar with the Eleventh Circuit might expect, the majority opinion affirmed the denial of Evans’ petition for habeas corpus relief.  In so doing, the Court focused its analysis on the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), and held that even though Evans’ trial counsel performed only a minimal investigation into mitigating evidence for the penalty phase of the trial, and presented no mitigating evidence to the jury, Evans was not prejudiced because the evidence of mitigation which counsel could have presented was more harmful than helpful.  See Evans v. Sec’y, Dept. of Corrections, Slip op., pgs. 3-37.

Whether you handle criminal defense, habeas petitions, death penalty work, or federal appeals, this opinion might be worth your time to review.  Not only does Judge Jordan’s concurrence contain a good discussion of the standards of review applicable to habeas proceedings, but Judges Wilson and Martin author great dissents.  Judge Wilson’s dissent focuses on the Court’s decision to render the en banc decision at all.  If you handle federal appeals before the Eleventh Circuit, Judge Wilson’s dissent might be valuable the next time you have to draft an opposition to a motion for en banc consideration.  See Evans, Slip op. pgs. 46-49.  Judge Martin’s dissent contains a thought-provoking discussion of the role of defense counsel in death penalty cases.  In short, Judge Martin agrees with the majority that the mitigating evidence that counsel could have presented to the jury would have portrayed Evans in a bad light.  However, Judge Martin notes that the jury was already familiar with Evans’ character flaws, anyway.  And, most importantly, Judge Martin observes: isn’t it the job of death penalty counsel to investigate and present whatever mitigating evidence can be found?  See Evans, Slip op., pgs. 50-72.

How Will the Florida Bar’s Ethics Opinion Prohibiting Waivers of Claims of Prosecutorial Misconduct and Ineffective Assistance of Counsel Be Enforced?

Florida’s criminal defense attorneys are probably aware by now that the Florida Bar has adopted the highly debated ethical opinion which prohibits waivers of claims of prosecutorial misconduct and ineffective assistance of counsel in plea bargains.  According to the Florida Bar News report, although representatives from the United States Attorneys offices for the Southern, Middle, and Northern Districts of Florida argued against the adoption of the ethical opinion, the Board of Governors adopted the proposed ethical opinion with only a few dissenting votes.

The ethical opinion is a step in the right direction, but how will the opinion will be enforced?  For those of you who practice in State court, if your client is offered a plea that contains a waiver of claims of ineffective assistance of counsel or prosecutorial misconduct, perhaps you could bring the new ethical opinion to the prosecutor’s attention.  If that fails, you could bring the ethical opinion to the attention of the court.

However, if you practice in Federal court, the ethical opinion may not necessarily change anything.  Federal court criminal defense practitioners may know that the Department of Justice does not require that the Assistant United States Attorneys be admitted to their state bar.  In other words, AUSAs in the Southern, Middle, and Northern Districts may not necessarily be members of the Florida Bar.   If the AUSAs are not members of the Florida Bar, they would not be bound by any of the Florida Bar’s ethical rules.  Therefore, unless the U.S.  Attorneys in the districts of Florida voluntarily adopt a policy prohibiting plea offers containing waivers of prosecutorial misconduct and ineffective assistance of counsel, Federal court criminal defense practitioners may see little to no change with regard to plea offers.  I would hope that the US Attorneys take it upon themselves to change their policies, but, given their opposition to the ethical opinion, I wouldn’t expect it.


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