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

Tag: appellate

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.

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional.  See Evans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012).  Well, now what can Evans do?

Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court.  If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.

A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment.  See Fed. R. App. P. 40.  The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.

If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment.   Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues.  If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.  The Rules of the United States Supreme Court may be viewed here.

Put simply, seeking discretionary review in the United States Supreme Court is a long shot.  For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.

And now the next round of waiting begins . . .

State v. Adkins, No. SC11-1878: Drug Possession Statute, Section 893.13 Constitutional

Well, I’ve finished reading the Florida Supreme Court opinion in State v. Adkins, No. Sc11-1878, and my initial opinion has not changed: disappointed, but not surprised.  I suspect that a lot of other criminal defense and appellate lawyers in South Florida are feeling the same way too.

The rationale for the majority’s holding is not exactly convincing.  In support of its holding that the Florida Comprehensive Drug Abuse Prevention and Control Act (“the Act”) is constitutional, the Court deferred to the Legislature’s broad authority the define the elements of a crime.  Slip op., pgs. 7-8.   Next, the Court cited several decisions from the United States Supreme Court, including United States v. Balint, 258 U.S. 250 (1922), Staples v. United States, 511 U.S. 600 (1994), and United States v. Freed, 401 U.S. 601 (1971) for the proposition that the legislature has the authority to define the elements of a crime for the public welfare.  Slip op., pgs. 8-16.  In support of its conclusion that the omission of a mens rea element did not violate due process, the Court reasoned that (1) the State is still required to prove that a defendant was engaged in the affirmative act of selling, manufacturing, possessing, or delivering a controlled substance; (2) an innocent person can rely on the affirmative defense as contained in the Act; (3) the Act and section 893.13 are rationally related to the Legislature’s goal of controlling drugs with a high potential for abuse; (4) prohibiting the sale, manufacture, delivery, or possession of controlled substances does not impinge on any constitutionally protected rights; (5) common sense and experience support a conclusion that possession without awareness of the illicit nature of the substance is highly unusual; and, (6) the Legislature’s decision to treat lack of knowledge of the illicit nature of the substance as an affirmative defense does not violate due process.  Slip op., pgs. 16-19.  The Court also analogized the affirmative defense to the New York case of People v. Patterson, 347 N.E.2d 898 (N.Y. 1976).  Slip. op., pgs. 19-22.

After reading the majority opinion, I wondered: why did the Court not cite more persuasive, or even more contemporary authority in support of its conclusion that the substitution of the affirmative defense for the mens rea element renders the Act constitutional?  Then, reading the first lines of Justice Pariente’s concurring opinion, I realized the answer: there is nothing more contemporary for the Court to cite!  As noted by Pariente, Although 48 other States have chosen to require the prosecution to prove mens rea as an element of a drug offense, the Florida Legislature opted to eliminate the mens rea element.  Slip op., pg. 23, (Pariente , J., concurring).  Pariente does an adequate job of pointing out some flaws in the majority opinion, and her concurring opinion reads more like a dissent than a concurrence.  But the fact that she concurs in the result is surprising, given number previous dissenting opinions she has authored in criminal cases.  The reasons for her concurrence is also surprising: (1) the Act still requires the State to prove that a defendant had knowledge of the presence of a controlled substance; and, (2) the Act allows a defendant to raise the affirmative defense of lack of knowledge.  Slip op., pg. 24 (Pariente, J., concurring).

After reading Justice Perry’s dissent, I am convinced that Justice Pariente and the majority both failed to adequately recognize two key concepts.  First, the existence of the mens rea element is the cornerstone of American criminal jurisprudence.  Slip  op., pgs. 25, 32-34.  (Perry, J., dissenting).  Second, the elimination of the mens rea element, the substitution of the affirmative defense, and the Florida jury instructions which permit the jury to presume that a defendant had knowledge of the illicit nature of the substance based on mere possession, all combine together to strip people charged with drug offenses of their constitutional presumption of innocence.

What comes next?  Well, for Adkins and the other co-defendants, they go back to square one and get back on the trial docket.  But other people who already stand convicted of drug offenses might wish to consider filing petitions for writ of habeas corpus in state, then federal courts.  Case in point: Shelton v. Sec’y, Dept. of Corr., 803 F. Supp. 2d 1289 (M.D. Fla. 2011). 

Florida Supreme Court Sua Sponte Issues Corrected Order On E-Mail Service Requirements For Some Trial Court Divisions, and All Appellate Cases: Rule Change Now Effective September 1, 2012

If you are a Florida attorney, you should be aware that today, the Florida Supreme Court sua sponte issued a corrected Order governing e-mail service.  Pursuant to the Sua Sponte Order, the Court changed the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012.  To read the collection of orders, click here, here, and here.

South Florida Fugitive Martin James Malone Turns Over New Leaf While on the Run, and US Supreme Court Holds that Sentence of Mandatory Life Without Parole for Juveniles Violates the Eighth Amendment

The Sun Sentinel ran a good story today that I wanted to pass along to other criminal defense and criminal appellate lawyers in South Florida.  Martin James Malone fled to Ecuador before a jury convicted him of federal drug charges in 1990.  According to the story, Malone made good use of his time while on the lam, acting as a “medicine, man” contractor, and overall good samaritan.  His story is a great example of how people can make a change for the better after getting into trouble.  Since even the prosecutor reportedly noted that Malone played a very small role in the 1989 cocaine-importing conspiracy, let’s hope that Judge Zloch’s sentencing will be fair.

Also today, the United States Supreme Court issued an opinion in Miller v. Alabama, No. 10-9646, where it held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.’” In its rationale, the Court relied heavily on two other juvenile cases, one of which hits close to home for Florida’s criminal defense lawyers: Roper v. Simmons, 543 U. S. 551, 560, (2005) (invalidating death penalty for all juvenile offenders under 18), and Graham v. Florida, 560 U. S. –, (2010) (holding that life without parole violates the Eighth Amendment when imposed on juvenile nonhomicide offenders).  As you’re reading the majority opinion, be sure not to skip the footnotes, as several point out the flaws in the dissenter’s analysis.  I especially like footnotes 6, 8, and 10.


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