Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
If you handle Federal criminal defense cases or criminal appeals in the Eleventh Circuit, you’re well aware that the Government almost always wins in criminal appeals. But today, I wanted to pass along two recent opinions where the Government lost on different sentencing issues.
In United States v. Washington, No. 11-14177, the Eleventh Circuit reversed a sentence because the Government failed to adduce any evidence that there were 250 or more victims as required by the section 2B1.1(b)(2)(C) enhancement of the Sentencing Guidelines. Since the opinion is a mere 10 pages, you should take a moment to read it. But if you don’t have time, here’s the Cliff’s Notes version: the best part of the slip opinion comes on page 9, where Judge Jordan, writing for the Court, declined the Government’s request to allow the Government the chance to prove, on remand, that there were 250 or more victims. In so doing, Judge Jordan emphasized that despite the fact that the Government was aware that Washington specifically objected to the number of victims charged, the Government made no effort whatsoever to prove up the number of victims. SeeWashington, No. 11-14177, slip op., pg. 9. Because the Government failed to meet its burden of proof on the contested sentencing issue, the Eleventh remanded the case to the District Court with directions for the District Court to resentence Washington to the 2-level enhancement based on his concession on appeal that the offense involved only 10 or more victims.
Next, in United States v. Hamilton, No. 12-10899, the Court reversed two District Court orders denying Hamilton’s Motions for Modification or Reduction of Sentence filed pursuant to 18 U.S.C. § 3582 (c)(2) because the District Court’s findings as to drug quantity were insufficient. Although the opinion is a bit longer at 25 pages, it’s still a fairly quick read, as most of the opinion is devoted to a statement of the facts and procedural history. The slip opinion’s analysis starts at page 16. After quickly discussing the principles which govern section 3582(c)(2) motions and two of its prior decisions addressing drug quantity, the Court pointedly noted the flaws of the District Court’s previous orders, and explained the District Court’s task on remand.
Maybe it’s just me, but based on some of the opinions I’ve read over the last few months, it seems as though the Eleventh Circuit is becoming less of a rubber stamp for the Government. Only time will tell, but I sure hope the trend continues.
Ok, I admit that this post is NOT about criminal appeals or criminal defense, but I could not resist passing this along. When I saw this article on the CNN website, I thought “Great. Another article about Florida Governor Scott making Florida look bad again.” Well, after reading the article, it’s not just the Governor making Florida look bad. Can you believe that some law enforcement agencies actually have drones? If you live in Orange County or Miami Dade County, look out!
Hot off the presses! Here is the criminal complaint filed against Dzhokhar Tsarnaev in connection with the Boston Marathon bombings. The case was filed in the United States District Court for the District of Massachusetts. The complaint charges Tsarnaev with violations of 18 U.S.C. sections 2332a(a) and 844(i) for the use of a weapon of mass destruction and malicious destruction of property resulting in death.
U.S. v. Dzhokhar Tsarnaev, Case No. 13-2106-MAB (District of Massachusetts).
Unless you’ve had your head in the sand, you’ve no doubt seen the media coverage of the apprehension of the second Boston Bomber, Dzhokhar Tsarnaev, on April 19. You probably also know that he’s currently being held in a hospital, being treated for his injuries, while the prosecuting authorities, both state and federal, decide how to handle things from here. But what you may not know is that he has NOT been given his Miranda warnings. How can that be?
Those of us practicing criminal defense and criminal appeals know that anytime there’s custodial interrogation, the individual should be Mirandized. (Of course we also know that many times, officers decide the for themselves what constitutes custodial interrogation, but that’s a topic for another post). According to news reports, the feds have invoked the public safety exception to Miranda, which can be traced to the United States Supreme Court case of New York v. Quarles, 467 U.S. 649 (1984). According to Quarles, the reason the court carved out the public safety exception was because of the exigency of the situation facing the officers in that case. There, the officers, while “in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.“ Quarles, 467 U.S. at 657.
Now, does that really seem like the situation that officers and prosecuting authorities are currently facing with Dzhokhar Tsarnaev? I admit that it’s pretty likely that the authorities have not revealed all the facts that have gone into their decision not to Mirandize Tsarnaev, but I would think that if there were any exigent circumstances, such as the possibility of immediate public danger, then the press would have been privy to that. After all, the FBI actively called on the press to help them locate the suspects when they released the photos of Dzhokhar Tsarnaev and his brother the day before Dzhokhar Tsarnaev was apprehended. And the whole reason the city of Boston was on lockdown was because the police feared that he would have a bomb on his person. I guess we’ll have to watch the legal aspects of this unfold. All I can say is that Dzhokhar Tsarnaev is going to need one hell of a lawyer.
I may have used a lot of acronyms in the title, but I bet I’ve got your attention, right? It’s Wednesday, which is opinion day in Florida’s 4th DCA. Although most of the opinions in the criminal appeals were in favor of the State, I came across one that’s worth a quick note.
In Cosme v. State, 4D09-1650 and 4D09-1652, the Court reversed a sentence imposed after the defendant was found guilty of violating his probation. Although Cosme had been given the benefit of a YO sentence when he was originally sentenced, after finding him guilty of the VOP, the trial judge revoked his probation and sentenced him to concurrent life sentences on all 3 counts. In so doing, the trial judge apparently listened to the statement of the ASA, who informed the judge that she could sentence Cosme to the maximum sentence of life, “without the constraints of the criminal punishment code.” Slip op., pg. 1.
After Cosme was sentenced, the ASA prepared a scoresheet, showing that Cosme’s lowest permissible sentence was 12.25 years, and handed it to the trial judge. The judge then told the ASA to note on the scoresheet that the Guidelines weren’t applicable because Cosme was originally sentenced as a YO. The trial judge signed the scoresheet, and the case eventually came up on appeal to the 4th DCA.
Notwithstanding the fact that Cosme and his counsel failed to object, the 4th DCA nevertheless reversed because the trial judge pronounced the sentence before being provided a scoresheet, and because both the ASA and the judge stated that the guidelines were not applicable when in fact they were. Slip op., pg. 2. Although the 4th DCA acknowledged that the 6- year cap doesn’t apply to a YO sentence imposed following a substantive VOP, the Court emphasized that reversal was required in Cosme’s case because the record did not conclusively show that the same sentences would have been imposed had the trial judge considered a correct scoresheet before imposing sentence.
Of note, Cosme’s case originates in Broward County. For those of you who practice in Broward, you may want to be on the lookout for this type of sentencing issue the next time you’re representing someone who had been given a YO sentence and then gets charged with violating his or her probation. If the judge fails to consider a properly completed scoresheet before imposing sentence, you may have a good basis for appeal pursuant to Cosme.
The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants. It’s like a hat trick for criminal defense and criminal appeals lawyers!
In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody. Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA). In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority. SeeMillbrook, 11-20362, slip op., pg. 6.Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability. See id.
In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine). On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative. On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again. In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand. Too bad Hinds had to appeal twice to get the benefit of the FSA.
Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.
As I was scrolling through the news this morning, I came across two articles in the Palm Beach Post that I wanted to pass along to the local criminal defense and criminal appeals attorneys out there.
The first article reports that Palm Beach County Circuit Court Judge Karen Miller has stated that she will call back jurors to inquire into allegations that the jurors discussed a criminal case before the evidence was closed, in violation of the court’s instructions. Although the Court has not set a date for the hearing, according to the article, the Judge decided to call the jurors back after a local criminal defense attorney filed an affidavit executed by one of the jurors, wherein the juror indicated that she had a “terrible concern that the verdict that the jury reached was not fair.” The individuals were both found guilty of the 2011 shooting death of a 15-year-old South Bay youth. They have not yet been sentenced.
In the next article (an op-ed piece), the Palm Beach Post notes that one of the jurors from the John Goodman trial recently admitted in a self-published book that his wife had once been arrested on a charge of DUI. Obviously, Goodman’s defense team says it asked all potential jurors if any family members had ever been charged with DUI, and that if they had known of his ex-wife’s arrest they would not have selected him. Armed with that information, John Goodman’s criminal appeals lawyers filed a motion in the Fourth District Court of Appeal case, seeking to have the Court relinquish jurisdiction so as to allow the trial court to consider the issue. The Fourth DCA initially denied Goodman’s motion on March 22, 2013. However, after Goodman filed a Motion for Reconsideration, the Fourth DCA granted the motion, and on April 1, 2013, the Court granted the Motion to Relinquish based on the newly discovered evidence of juror misconduct. The Court’s April 1, 2013, order which can be found on the Fourth DCA docket for case number 4D12-1930, reads as follows:
The motion to reconsider the order denying stay dated March 22, 2013, is denied. The motion for relinquishment based on newly discovered juror misconduct is granted for the defendant to file and present to the trial court a motion based upon the alleged juror misconduct and for the court to allow a juror interview and then to rule on the issue. Such relief is not procedurally barred. See e.g. Marshall v. State, 854 So. 2d 1235, 1242 (Fla. 2003); Davis v. State, 778 So. 2d 1096 (Fla. 4th DCA 2001). Relinquishment is for a period of forty-five days. ORDERED that appellant’s motion filed March 28, 2013, for permission to file a reply to State’s response is hereby granted.
I don’t know about you, but I am glad to see that both Courts have taken the courageous step of inquiring into the serious issue of juror misconduct. Job well done.