Tag Archives: appellate

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

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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?

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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

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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

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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

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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.

Florida Supreme Court Justices and Fourth DCA Judges Facing Merit Retention Vote In November 2012

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All of Florida’s attorneys–not just criminal trial and appellate attorneys–have been hearing for a while now that several of the Justices on the Florida Supreme Court are under attack.  Supreme Court Justices Pariente, Quince, and Lewis are all up for merit retention votes in November 2012.  Judges Carole Taylor and Burton Conner from the Fourth District Court of Appeal in West Palm Beach are also up for merit retention votes in November.  According to the reports being circulated among the members of the Florida and Palm Beach County Bars, political groups, PACs, have been formed to raise massive amounts of money in anticipation of the November elections.  According to the reports, the organizers of the PACs are not based in Florida.

Why all the fuss, you ask?  Several years ago, something similar happened in another State (a mid-western State, I believe).  A large PAC was formed, and the PAC raised massive amounts of money to run political attack ads against several of the State Supreme Court justices.  The justices who were attacked all lost re-election.

Florida’s Supreme Court Justices are in a tough spot.  Although they are elected officials, they are precluded from actually going out and running a formal campaign.  They are also precluded from saying many things that a traditional candidate would say.  In other words, they can be attacked, but cannot fight back.  That’s where we come in.   If you are Florida lawyer, you know that the merit retention vote is about one question: whether the Justice or Judge should retain his or her judicial position based on his or her ability to render decisions on a fair and impartial basis, not whether you as a lawyer agree with those decisions.  As a citizen of the State of Florida, everyone has the responsibility to make an informed choice at the election booths in November.  In addition to reading about your local candidates, you should take a few minutes to read about Florida’s merit retention system here.

Florida’s Battle of the Branches of Government Continues, and E-Discovery Violation in Federal Criminal Case Results in New Trial

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It’s no secret that Florida Governor Rick Scott and Florida’s Supreme Court haven’t been able to get along.  Since he’s taken office, the two branches of Florida’s government have squared off, indirectly, on more than one occasion.  Well, it looks like things are heating up now.  The latest shot came from the office of the Governor, with Scott basically calling for FDLE to begin an investigation of Justices Pariente, Lewis, and Quince, all of whom are up for merit retention votes this November.  You can read more about it here.  The story is even making national headlines on the ABC website.

Now, for South Florida’s  Federal criminal defense lawyers, trial and appellate alike, I came across an interesting post today that I wanted to share.  Apparently, District Judge Altonaga of the Southern District recently granted a new trial in a criminal case after the defense attorney argued that the Government committed a discovery violation by failing to produce e-discovery in a reasonably usable form.  According to the post, even though the Federal criminal rules do not have the same requirements as the Federal civil rules with regard to production of e-discovery, there may be a growing trend by the courts to adopt the Federal Civil rule’s standards in criminal cases.

Practical Tips for Federal Court

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If you’ve ever been in Federal court in South Florida, you already know that there is a huge difference between State and Federal Court.  In keeping with the Federal bench Bar Conference that happened in West Palm Beach on Friday, April 27, 2012, I thought some practical tips might come in handy.

1.  If your client gets slapped with Federal criminal charges, or your civil case gets removed to Federal court, DON’T PANIC.

2.  For civil cases, the first thing you should do is familiarize yourself with the Local Rules for the Southern District.  They are available on the Southern District website.

3.  For criminal cases, you’ll need to call the Assistant United States Attorney (AUSA) assigned to the case to determine if he or she will agree to release your client on bond or whether the Government is seeking pre-trial detention.  Unfortunately for criminal defense lawyers and their clients, most criminal defendants, at least those that have their cases assigned to the West Palm Beach courthouse, have historically been detained without bond.  But, there is potentially some good news: with two new Magistrate Judges on the bench this year, maybe things will change.  After all, Magistrate Judge Brannon (already on the bench) is a former Federal P.D., and the next Magistrate Judge to be sworn in, Bill Matthewman, is also a former criminal defense lawyer.

4.  As your case progresses, some other things to keep in mind are:

(a) Try to keep phone calls to chambers to a minimum.  Scheduling of matters is, for the most part, handled through the courtroom deputy (CRD), not chambers. If you have to call chambers, be polite.  After all, the person answering the phone might be a law clerk who will be writing the order on your case!

(b) Don’t call chambers with questions like “what does the Judge want me to do,” or “how would the Judge like me to handle . . .”  As the lawyer on the case, it is your responsibility to figure things out for yourself.  Although many Judicial Assistants in State court will tell you what the Judge would like you to do, many chambers in the Southern District are required by the Judge to answer those kind of questions by simply referring you to the Local Rules.  Don’t take it personally.  Most Judges just want to avoid the possibility of ex parte communications.  Some Judges in the Southern District won’t even entertain calls to chambers or the law clerks.

(c) Don’t presume you’ll get a hearing on anything.  Most matters in Federal court are handled on the written pleadings only.  If you need a hearing, you must file a separate motion requesting the hearing.

(d) Since most matters are handled on the pleadings, put your best effort into your writing.  Say everything you need to say up front.  Acknowledge weaknesses in your case candidly, but then explain why those weaknesses should not affect the result in your case.  Be precise, be succinct, clearly cite all authorities and record references  in support of your position, and conclude.

(e) If a Magistrate Judge handles your motion/pleading, you will have the chance to file an objection within the requisite time frame (14 days).  The objection will then be handled by the District Court Judge, like an appeal.  If your pleading was disposed of by the District Court, you would appeal any rulings to the Eleventh Circuit, according to the Rules of Appellate Procedure.  For criminal cases, bond/detention orders are appealed to the District Court.

More tips to follow next time!

Florida’s Fourth DCA on February 15, 2012: Detective Testimony as to Video Creates Reversible Error, as Does Use of Screen in Court to Shield Child Victims, and “Things That Make you Go Hmmm!”

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It’s a beautiful day here in Jupiter, Florida, so I thought I’d pass along a few notes about some criminal appeals opinions issued by my local appellate court, the Fourth DCA.

First, South Florida’s criminal defense lawyers who have videos from the scene allegedly depicting their client may wish to review the case of Charles v. State, 4D09-4191, as the 4th DCA reversed Charles’ conviction and remanded the case for a new trial based on an error with regard to the video.  According to the opinion, the State elicited testimony, over objection, from the Detective that he believed that Charles was the person depicted on video.  However, the Fourth held that the Detective’s testimony improperly invaded the province of the jury because he admitted that he was originally unable to identify the person in the video.  In finding that reversible error occurred, the Fourth relied on Ruffin v. State, 549 So.  2d 250 (Fla.  5th DCA 1989).

Second, in McLaughlin v. State, 4D10-2255, the Court reversed and remanded for a new trial because the trial court allowed the prosecutor to erect a physical shield in the courtroom, presumably so that the child victims would not have to see McLaughlin when they testified.  The Court found that the shield was not authorized by any statute, and that it’s presence compromised McLaughlin’s right to a fair trial.  The Fourth stated that rather than allowing the use of the shield, the trial court should have instead inquired as to whether the victims would suffer emotional or mental harm due to the presence of McLaughlin, and if so, allowed the child victims to testify outside the courtroom via closed circuit television.

Finally, in Hernandez v. State, 4D10-4186, the Court got a little creative with its writing!  The case involves something pretty routine, the trial court’s denial of a motion to suppress.  After an ordinary legal discussion of the facts and applicable standards, the Court closed with the following:

But one must wonder why, after twice telling the police to get a warrant, the defendant would invite law enforcement on his property, put the dog away, and kick down his own door to allow law enforcement to have a good look at his indoor marijuana grow room—providing sufficient probable cause for a search warrant.  As Arsenio Hall used to say, “Things that make you go Hmmm!”

Arsenio Hall?   “Hmmm!?”

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

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In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.