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Criminal Law

Defense Newsletter Blog

Breaking news supplementing the Defense Newsletter covering 11th Circuit and Supreme Court Cases.
By Tim Cone

Post Frequency: 9.1/day

Last Entry: October 27, 2020 at 13:19:00

Tagg: Pipe Bombs Not Protected by Second Amendment

Posted on July 02, 2009
In U.S. v. Tagg, No 08-16860 (June 30, 2009), the Court affirmed the conviction of a defendant charged with aiding and abetting in the possession of a pipe-bomb.The Court rejected Tagg?s challenge to the sufficiency of the evidence, pointing out that his conduct in helping persons purchase gunpowder, watching them build pipe bombs in his garage, and telling them to go light the bombs somewhere else, sufficed...

Gari: I-123 Immigration forms if Confrontation Clause error, harmless error

Posted on July 02, 2009
In U.S. v. Gari, No. 08-10014 (June 30, 2009), the Court affirmed certain Cuban alien-smuggling convictions, reversed others, and remanded for resentencing.The Court found sufficient evidence to convict the defendants of several counts of alien smuggling...

Moran: No Notice Required Pre-Sentencing for Supervised Release Conditions

Posted on July 02, 2009
In U.S. v. Moran, No. 08-16987 (July 1, 2009), the Court found no error in the sentencing court?s imposition, without prior notice in advance of sentencing, of special conditions of supervised release to address a defendant?s proclivity to sexual misconduct...

Wilk: Self defense not available when defendant had reason to know law enforcement was entering his home

Posted on July 01, 2009
In U.S. v. Wilk, No. 07-14176 (June 29, 2009), the Court affirmed the conviction and sentence of a defendant charged with killing a state law enforcement officer assisting in a federal investigation.Law enforcement officers, suspecting Wilk of possession of impeding a federal investigation, forcibly entered Wilk?s home...

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Barner: Prosecutor misled court on reasons for not giving 5K1.1 reduction

Posted on July 01, 2009
In U.S. v. Barner, No. 08-10080 (June 29, 2009), the Court affirmed the conviction of a defendant charged with possession of ecstasy, but reversed the sentence.The Court rejected Barner?s claim that statements were obtained from him in violation of Miranda...

Doorball: State waiver dooms federal habeas petition

Posted on July 01, 2009
In Doorbal v. Dept. of Corrections, No. 08-15869 (June 29, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 and 1995 murders.The Court found that the Florida Supreme Court had earlier ruled that Doorbal?s claim of ineffective assistance of counsel was waived because he failed to present the issue on appeal in the Florida state courts...

Flores: Sur-13 gang convictions and sentences affirmed

Posted on June 30, 2009
In U.S. v. Flores, No. 08-10775 (June 29, 2009), the Court affirmed the convictions and sentences of defendants convicted of RICO and murder crimes as members of the Sur-13 gang.The Court found no fault in the district court?s excusing a potential juror for cause when she said she suffered from attention deficit disorder ("ADD"), noting that untreated ADD could interfere with a juror?s ability to pay attention in a lengthy trial...

Gupta: Gupta Sentence Vacated Again

Posted on June 24, 2009
In U.S. v. Gupta, No. 08-12248 (June 23, 2009), on a government appeal, the Court vacated the sentence of three years probation and no restitution imposed on a Medicare fraud defendant.At sentencing, confronted with a government loss estimate of $3.4 million and a defendant estimate of zero, the district court split the difference and determined loss to be $1...

Elso: Case is No Longer Pending Once Eleventh Circuit Mandate Issues

Posted on June 22, 2009
In U.S. v. Elso, No. 06-14954 (June 19, 2009), the Court held that a district court lacked authority to consider the defendant?s motion under Fed. R. Crim. P. 12(b)(3)(B), challenging the subject matter jurisdiction over one of his counts of conviction...

Jefferson: Failure to investigate brain damage not ineffective assistance

Posted on June 17, 2009
In Jefferson v. Hall, No. 07-12502 (June 12, 2009), the Court (2-1, Carnes, J. dissenting) reversed the grant of habeas relief to a Georgia inmate sentenced to death for a 1985 murder.The Court found that counsel had not given ineffective assistance at the penalty phase of the trial...

Docampo: 270 month sentence on 18 year old is reasonable

Posted on June 16, 2009
In U.S. v. Docampo, No. 08-10698 (June 15, 2009), the Court (2-1, Barkett, J., dissenting in part) affirmed as "reasonable" a sentence of 210 months, plus a 60 month consecutive sentence, for cocaine trafficking and gun conviction convictions.The Court agreed with Docampo that the district court erred in admitting the hearsay statement of an accomplice?s girlfriend about a threatening phone call that Docampo made to the girlfriend...

Sarras: 1,200-month sentence for step-daughter child porn affirmed

Posted on June 16, 2009
In U.S. v. Sarras, No. 08-11757 (June 16, 2009), the Court affirmed convictions and sentences for persuading a step-daughter to engage in sexually explicit conduct for photos.The Court rejected the argument that a doctor the defense called as a witness should have been permitted to opine that, based on his expertise in examining penises, the penis shown on photographs was not that of the defendant...

Demarest: Yacht dealer money laundering conviction upheld

Posted on June 15, 2009
In U.S. v. Demarest, No. 08-12296 (June 10, 2009), the Court affirmed money-laundering convictions and sentences for a yacht dealer who agreed to sell a yacht for cash to undercover agents posing as narcotics traffickers.The Court found that the jury reasonably rejected Demarest?s defense that he was intoxicated when he agreed to the deal...

Kapordelis: 420 month sentence for child porn

Posted on June 03, 2009
In U.S. v. Kapordelis, No. 07-14499 (June 1, 2009), the Court affirmed the convictions and 420-month sentence of an anesthesiologist charged with producing, receiving and possessing child pornography.The Court rejected Kapordelis' argument that some of his photos were taken in Greece and the statute should not apply extraterritorially...

Hoffman-Vaile: Dermatologist Obstruction Conviction Affirmed

Posted on May 27, 2009
In U.S. v. Hoffman-Vaile, No. 07-12629 (May 27, 2009), the Court affirmed the convictions of a dermatologist charged with Medicare fraud and obstruction of justice.Applying plain error review, the Court rejected a challenge to the admission of reports prepared by a private administrator that processes and reviews claims for Medicare...

Spoerke: PVC pipe bombs are "destructive devices"

Posted on May 27, 2009
In U.S. v. Spoerke, No. 08-12910 (May 22, 2009), the Court held that a homemade explosive device made of polyvinyl chloride (PVC) pipe that could propel shrapnel was a "destructive device"under 26 U.S.C. �� 5801 et seq. The Court noted that Spoerke admitted that his devices could hurt people...

Lamarca: No Habeas Relief for Murder of Daughter's Husband

Posted on May 21, 2009
In Lamarca v. Sec. Dep?t of Corrections, No. 08-16775 (May 19, 2009), the Court denied habeas relief to a Florida inmate sentence to death for the 1995 murder of his son-in-law.The Court rejected most of Lamarca?s claims because they were not presented to the Florida state courts, and therefore were not exhausted...

Owen: Appellate Counsel Not Ineffective

Posted on May 20, 2009
In Owen v. Dep?t of Corrections, No. 07-14727 (May 18, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for murders committed in 1984.The Court rejected the argument that Owen?s appellate counsel was ineffective because he labored under a conflict once Owen filed a bar complaint against him...

Smith: No Abuse in Imposing High End of Guidelines in Amended Crack Sentence

Posted on May 19, 2009
In U.S. v. Smith, No. 08-13215 (May 19, 2009), the Court held that the district court, at a resentencing pursuant to 18 U.S.C. � 3582(c)(2) for a defendant eligible for a sentence reduction pursuant to the recent Amendment to the crack cocaine Guidelines, did not err in failing to adequately address the � 3553(a) factors when it imposed sentence at the high end of the amended guideline range...

Payne: Appellate counsel not ineffective

Posted on May 12, 2009
In U.S. v. Payne, No. 08-12944 (May 7, 2009), the Court rejected an inmate?s motion under 28 U.S.C. � 2255 which claimed ineffective assistance of appellate counsel.Payne pointed out that his appellate counsel had failed to challenge on appeal the district court?s imposition of a two-level "abuse of trust" sentence enhancement based on Payne?s status as a pastor...

Bautista-Silva: Reasonable Suspicion to Stop Suburban on I-95

Posted on May 12, 2009
In U.S. v. Bautista-Silva, No. 08-13803 (May 11, 2009) (2-1) (Barkett, J., dissenting), the Court reversed the district court?s suppression of statements and physical evidence obtained as a result of a traffic stop which resulted in the arrest of five illegal aliens from Mexico...

Aldrich: Masturbating on internet is "sexual contact"

Posted on April 28, 2009
In U.S. v. Aldrich, No. 08-15556 (April 27, 2009), the Court held that the "sexual contact" sentence enhancement of USSG � 2G2.1(b)(2)(A) includes the act of masturbating on the internet. The Court explained that the guideline definition of "contact" refers to contact with "any person" ? which includes the defendant.

Carter: Reasonable Suspicion Suffices to Search Probationer's Home Without Warrant

Posted on April 27, 2009
In U.S. v. Carter, No. 08-14460 (April 27, 2009), the Court held that "reasonable suspicion" sufficed to justify a warrantless search of the home of a probationer.Carter was serving probation after arrests for battery and possession of cocaine. Carter?s probation officer became suspicious that Carter was engaging in drug trafficking after noticing changes in Carter?s lifestyle (despite a meager income), his association with a person with a criminal record, and his apparent gang affiliation...

Schultz: Magistrate Judge can decide self-representation

Posted on April 23, 2009
In U.S. v. Schultz, No. 06-11673 (April 22, 2009), the Court affirmed fraud convictions and dismissed the defendant?s appeal in part for lack of jurisdiction.The Court found no error in having a Magistrate Judge, as opposed to an Article III district court, decide Schultz?s Faretta motion for self-representation...

Mitchell: unreasonable 21-day delay in seeking warrant to search hard drive

Posted on April 23, 2009
In U.S. v. Mitchell, No. 08-10791 (April 22, 2009), the Court reversed the denial of a motion to suppress, holding that the 21-day delay between the seizure of a computer hard drive and obtaining a warrant to search the hard drive constituted an unreasonable delay, in violation of the Fourth Amendment?s warrant requirement...

Covington: 404(b) admissible in murder for hire

Posted on April 22, 2009
In U.S. v. Covington, No. 08-10513 (April 22, 2009), the Court affirmed the convictions and sentence of a defendant charged with having hired a murderer to kill a girlfriend.Covington was arrested and charged with assaulting his girlfriend. He allegedly hired a hitman to murder his girlfriend to avoid having her testify against him...

Lopez-Garcia: No Interrogation where interrogator would not have known of incriminating possibility

Posted on April 22, 2009
In U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. � 1326(a) and (b)(2).The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment...

Emmanuel: Fourth Amendment does not reach Bahamas

Posted on April 22, 2009
In U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap...

Parker: No Purposeful Discrimination in Peremptory Strikes

Posted on April 20, 2009
In Parker v. Allen, No. 05-16907 (April 20, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate convicted of a 1988 murder.The Court rejected Parker?s Batson challenge to the peremptory strikes used against black venirepersons. The Court noted that the Alabama courts had considered this claim, and found no error in a finding of an absence of "purposeful discrimination...

Beckles: Undisputed PSI sawed-off shotgun establishes crime of violence

Posted on April 20, 2009
In U.S. v. Beckles, No. 07-15062 (April 17, 2009), the Court affirmed a conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. � 922(g).The Court rejected Beckles? argument that his confession was obtained in violation of Miranda...

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