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: Federal

United States Supreme Court Hears Oral Argument in Kaley v. United States, 12-464: Government’s Use of Pre-Trial Asset Seizure and the Right to Counsel of Choice

Federal criminal trial and criminal appeals attorneys who follow this blog might remember that the US Supreme Court accepted cert in the case of Kaley v. United States, No. 12-464, a federal criminal case which arose from our very own Southern District of Florida.  (You can read my previous post here.)

Well, on October 16, 2013, the Court heard oral argument in the case, and if the Court’s questions posed during oral argument are any indicator, the case may be too close to call.  You can read the transcripts of the argument by clicking here.  If you prefer the audio recording, click here.

I don’t know about you, but I find this case extremely compelling because it so heavily impacts a defendant’s right to counsel of choice.  That the Government is permitted, by statute, to freeze the assets of a criminal defendant pre-trial, based only on a grand jury indictment, and that the defendant is not permitted to challenge to the evidentiary basis for Government’s asset freeze, is just astounding.  We’ll just have to wait and see what the Court decides, but when the opinion is issued, I know I’ll be looking for the magic word “reversed.”

E-Filing in Florida’s Appellate Courts: A Work in Progress

Can you guess which of Florida’s appellate courts is not like the others?  If you handle criminal appeals on a regular basis, then you know that four out of five of Florida’s District Courts of Appeal are on eDCA, the electronic filing system begun by the 1st DCA a while ago: the First, Third, Fourth and Fifth DCA.  But one of them stands alone: the Second DCA.   While the other DCA’s opted to follow the course of the First DCA, and begin their foray into e-filing on eDCA, the Second is the only DCA to skip eDCA, and commence its foray into e-filing by jumping directly onto Florida’s Statewide e-filing Portal.  (the Florida Supreme Court did this as well a few months ago).  Today marked the first day of voluntary filing with the 2nd DCA through the Portal.

Have any of you tried filing with the 2d DCA through the Portal?  I did.  It leaves a lot to be desired.  Don’t get me wrong, e-filing definitely beats having to send  your briefs, motions, and responses via FedEx, followed by a courtesy copy by e-mail, but for some reason, the Portal does not seem to provide access to the court docket.  To see the appellate docket, you still need to go to the “online dockets” link from the Portal website, or at any of the DCA webpages, and those dockets are not real-time.  So in other words, you can submit something electronically, but it still won’t show up on the docket for several days.  The other thing I don’t like is that when you’re filing through the Portal, you don’t get a time-stamped copy to reflect the time and date of your e-filing.  Similar to the Federal CM/ECF system, the e-DCA system provides both of those functions.

If you are lucky enough to be in Federal court, then you get the ease of working with CM/ECF.  In my view, CM/ECF is the best e-filing system there is because you get a real-time docket, time/date stamps on your e-filed pleadings, electronic confirmation of your successful filing, and automatic e-service of your pleadings on the other parties in the case (except pro se parties).  E-DCA is a close second.  Although e-DCA lacks electronic service, e-DCA at least provides you an e-mail alert that a pleading or order was filed in the case, and a link to view the document.  Plus, e-DCA provides you with a real-time docket, time/date stamps on your e-filed pleadings, and electronic confirmation of your successful filing.

E-filing in Florida’s State courts is a work in progress.  In the coming months, the First, Third, Fourth and Fifth DCA will all have to make the transition to the Statewide Portal, as will the rest of Florida’s trial courts.   Hopefully, the Portal we have today is a work in progress, too.

Eleventh Circuit Circuit Reverses After Appellate Counsel Initially Files Anders Brief

Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.

(1) United States v. Fries, No. 11-15724.  If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues.  Often, the courts accept Anders briefs without question.  However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:

(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and

(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In a revised brief, appellate counsel argued that Fries’ conviction for transferring a firearm to an out-of-state resident should be reversed for insufficient evidence because (1) the evidence at trial failed to show that he sold a firearm to a person who was not a licensed firearms dealer; and, (2) in the alternative, he should be granted a new trial because the court’s jury instructions shifted the burden of proof.
The Eleventh Circuit agreed, and reversed for a simple reason:  at trial, the prosecutor failed to establish an essential element required by section 922(a)(5)–that the individual to whom Fries sold the firearm lacked a federal firearms license (“FFL”).  After a bit of help from the Court by declining to accept the Anders brief, this is a good win for the defense.  It’s not very often that the Government commits such an error.  As noted by Judge Carnes in his concurrence, all the prosecutor had to do during the Government’s case in chief was ask a simple question as to whether the ATF agent who purchased the gun from Fries at the Tallahassee Gun and Knife Show had a federal firearms license.
(2) In United States v. Curbelo, No. 10-14665, the Court affirmed Curbelo’s conviction for a count of conspiracy to manufacture and possess marijuana with intent to distribute, and a second count of manufacturing and possessing marijuana with intent to distribute.  According to the opinion, it seems that Mr. Curbelo was employed as a carpenter for a Mr. Diaz, and that when the carpentry work was no longer lucrative enough, Mr. Curbelo decided to join in Mr.  Diaz’s grow-house operations.  Although the case is a fairly routine opinion affirming a conviction, it’s worth a read, if you have time.  Although I won’t discuss each of the five points analyze by the Court, I will note four of them for you here.
  • First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal.  In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013).  However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
  • Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel.  Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
  • Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants.  The Court quickly disagreed.  In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
  • Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial.  In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).

United States v. Davila: No. 12-167: Although Judge’s Statements Made During In Camera Plea Conference Violated Rule 11, Error Does Note Require Plea to Be Vacated

Things have been busy in these last couple of weeks leading up to the Fourth of July holiday, so I’ll keep this short.  Federal criminal defense and federal criminal appeals lawyers, especially those practicing in the Southern District of Florida or the Eleventh Circuit, will be interested to know that the US Supreme Court has reversed the Eleventh Circuit on an important issue: the consequences of a judge’s violation of Fed. R. Crim. P. 11 regarding guilty pleas.  In United States v. Davila, No. 12-167, the Court held that even though the Magistrate Judge who presided over an in camera plea conference made statements which violated Rule 11’s ban on judicial participation in plea discussions, Davila was not entitled to have his guilty plea vacated because he failed to show that he was prejudiced by the judge’s statements.

Is it just me, or does anyone else notice the irony of this decision?  This is a rare case where the Eleventh Circuit actually sided with the criminal  defendant, and afforded him relief.  Yet, on certiorari review, the US Supreme Court took the position most often taken by the Eleventh Circuit–and denied the criminal defendant relief.

Eleventh Circuit Reverses Two Cases on Sentencing Issues: United States v. Washington, No. 11-14177, and United States v. Hamilton, No. 12-10899

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.  See Washington, 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.

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