Articles Posted in Constitution – Bill of Rights

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In U.S. v. Ransfer, the defendants were convicted of a Hobbs Act violations, and the use and carrying of firearms during the commission of a violent crime. The first issue the defendants raised in challenging these federal criminal convictions was the admission of evidence resulting from the installation and use of a GPS tracking device without a warrant. It used to determine the location of a Ford expedition that was used in the commission of several robberies. The defendants relied on U.S. vs. Jones, a 2012 Supreme Court case stating that installing a GPS tracking devise on a vehicle and tracking the vehicle’s movement was a search under the fourth amendment and required a warrant. The police installed the tracking device on May 27, 2011, before the Jones decision was issued in 2012. Prior to the Jones decision the prevailing law in the 11th circuit said that law enforcement officers did not violate the Fourth amendment by placing a tracking device on vehicle parked in a public place and to track the vehicles moment on public roads if the officers that reasonable suspicion to initiate surveillance of the vehicle. The Eleventh Circuit found that the officers were in good faith and it was reasonable for the officers to rely on long standing precedent in attaching the GPS without a warrant by installing electronic tracking device of vehicle without a warrant. Because there was clear precedent in the 11th circuit stating that the police did not violate the fourth amendment, the search was not subject to the exclusionary rule.

In their second issue, the defendants challenged the lead an officer’s testimony on grounds that it was hearsay. The officer testified about the identities and their suspicious activities from information learned from out of court sources. The court concluded that his testimony was based on his investigation review of a complex investigation in which he supervised a months-long endeavor to identify and locate the perpetrators of this series of armed robberies. His statements were not offered to rehabilitate any witness. Instead he was merely providing a summary of the investigation and his background information shed light on why the officer conducted the investigation in the manner that he get even if it was an error it was not reversible because the evidence about which he testified was otherwise admissible on the record.

The defendants challenge the convictions on the basis of sufficiency of the evidence. All of the convictions were affirmed except for the robbery of a specific CVS for one defendants, which was reversed. The court found the evidence was insufficient to prove one of the defendants was involved in this particular robbery because the evidence supporting his conviction in the other robberies was absent here. There was no evidence he was ever in the CVS or that he did anything prior to or during the robbery to further the crime.

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In U.S. v Martinez the Defendant appealed her federal criminal conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. The threat came when a talk show host at a Ft. Lauderdale radio station received an anonymous email that expressing support for the second amendment gun rights, and the anonymous sender said he was planning something big around a government building, a post office “maybe even a school, I’m going to walk in and teach all the government hacks working there what the 2nd amendment is all about..” Several hours later an anonymous woman called the station telling them that her husband sent the email, that he was mentally ill, and that he was now planning to open fire at a nearby school. The anonymous woman implored the station to broadcast a plea asking her husband not to carry out the shooting. The phone call resulted in a lockdown of all Broward County schools. After investigators discovered the anonymous calls were sent by the defendant, she was indicted for making a threat in violation of § 875(c). She pleaded guilty reserving the right to appeal her challenges to the statute.

Martinez claimed the indictment was insufficient because it did not allege Martinez subjectively convey a threat to injure others. She argued that the Supreme Court’s decision in Virginia v. Black drew the distinction between true threats and First Amendment protected speech based upon the speaker’s subjective intent, and therefore a conviction required proof the defendant subjectively intended to make a threat. In Black, the Supreme Court addressed a state statute making it a crime to burn a cross with the intent of intimidating any person or group. Martinez argued that Black imported a subjective-intent analysis into the true threats doctrine. In rejecting Martinez’ argument the Eleventh Circuit found that prior to Virginia v. Black, the Supreme Court did not require a subjective analysis for true threats, rather the threats are evaluated on a the objective characteristics of the speech and the context in which it was made. Most federal courts defined true threats according to an objective standard. The Eleventh Circuit found that the Supreme Court’s decision in Virginia v. Black was based on the overbreadth of a specific statute and not whether all threats are determined by a subjective or objective analysis. The Eleventh Circuit concluded that to be convicted under § 875, Martinez need not subjectively intent to her statement to be a threat.

Martinez also argued that § 875(c) was unconstitutionally overbroad because it did not require the Government to prove the speaker subjectively intended her statements to constitute a threat. The Eleventh Circuit found no merit in this challenge. The actus reus of the statute is transmitting a true threat and a true threat is determined from the position of an objective, reasonable person. Section 875(c) is silent as to mens rea and does not require and showing of specific intent. The statute is a general intent offense that requires the government to show the defendant 1) transmitted a communication knowingly, and 2) that the communication would be construed by a reasonable person as a serious expression of an intent to inflict harm. It does not require the Government to prove a defendant specifically intended his or her statements to be threatening.

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In U.S. v. Williams, the defendant was convicted in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C.§ 922(g), possession of crack cocaine, and possession of a firearm in furtherance of a drug trafficking crime. On appeal he challenged the introduction of evidence seized as a result of an unlawful search. Williams was arrested when two Miami Police Officers approached a rooming house in the Coconut Grove section of Miami to investigate complaints that narcotics were being sold from the location. After the officers knocked on the door, Williams answered and the officer questioned him and eventually asked Williams if he had anything illegal on him. According to the officer, Williams said “go ahead, I ain’t got nothing.” When the officer reached for William’s pocket, Williams pushed him in the chest area causing the officer to stumble backwards. Following that encounter, Williams then ran inside the house to the back of the house. The two officers gave chase and caught him at the end of the house. During the struggle to place handcuffs on Williams, one of the officers saw a semiautomatic gun fall out of the William’s waistband and land nearby. The gun was recovered and after searching Williams’ pocket they found 21 small bags of crack cocaine in a cigarette box and $236 in cash.

Williams filed a motion to suppress the evidence seized on grounds the officers had no probable cause or reasonable suspicion he was dealing in drugs. Williams argued the evidence was seized as a result of an illegal, nonconsensual search. Even if the initial encounter was valid, the officer’s attempt to search was invalid because Williams never consented to the search. Finally he argued that even if he consented at first, he withdrew his consent. During the suppression hearing Williams disputed the officer’s version of the incident. He claimed he denied having any drugs when asked by the officer. When the officer asked if he would mind being searched, Williams denied giving consent and said that when the officer reached for his pockets, he only pushed the officers hands away because he already refused the consent to a search.

The court of appeals upheld the denial of the suppression motion. First the district court did not err in making a credibility finding against the defendant. There was no Fourth Amendment violation by the officer’s entry upon the private property to knock on the door. Their purpose was to investigate the present of criminal activity upon receiving complaints. The court of appeals credited the officer’s account that they obtained consent to search Williams. The officer said that Williams struck him, giving the officer probable cause to arrest Williams for resisting arrest with violence or battery on a law enforcement officer. The court noted that an officer is allowed to enter a dwelling without a warrant if he is in “hot pursuit” of a suspect. The officers could therefore pursue Williams into the house.

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The defendant in U.S. v. McQueen was a corrections officer at the South Florida Reception Center in Doral, Florida who was convicted of conspiracy to deprive several inmates of their constitutional rights in violation of 18 U.S.C. §241, specifically their right to be free from cruel and unusual punishment. McQueen and another corrections officer, Dawkins, were also convicted of obstruction of justice, in violation of 18 U.S.C. §1519. In a cross appeal, the government challenged the McQueen’s 12 month sentence and Dawkins’ one month sentence.

Defendant McQueen was sergeant and Dawkins was an officer at the jail on February 25, 2009 when a fight broke out between two inmates who were housed in the youthful offender wing of the prison. When McQueen and other corrections officers asked the injured inmate who he fought with, the inmate refused to reveal the other inmate’s name. McQueen then beat the inmate with a broomstick and slammed his head, and by doing so aggravated his wounds. Other inmates were beaten by the officers for not talking, and they forced two inmates to fight with each other. In all, about five inmates were injured from the repeated acts of violence caused by these defendants and other officers. In reporting making his report, McQueen reported that the inmate injured himself while cleaning the shower. Both defendant McQueen and Dawkins were found guilty following trial. Factoring the offense characteristic enhancements, McQueen’s offense level was 34, giving him a range of 151 to 188 months in prison. Dawkins’ range was 15 to 21 months. A third defendant, who was allowed to plead to a misdemeanor, received a 12 month sentence for his conviction. In sentencing McQueen and Dawkins, the trial court found that it could not in good conscience sentence McQueen and Dawkins to far heavier sentences and the court sentenced McQueen to 12 months and sentenced Dawkins to one month imprisonment.

The court of appeals found the district court abused its discretion in imposing substantially unreasonable sentences that varied downward by more than 90% from the bottom of the sentencing guideline range. The district court emphasized only one sentencing factor under 18 U.S.C. § 3553(a) in comparing the codefendant’s sentence. In reviewing the sentence, the court of appeals is not limited to the §3553(a) factors examined by the district court, and the court can find that a sentence may be unreasonable when the sentence is grounded solely only one factor and ignores other relevant factors. The court found the sentencing court “completely failed to reflect the seriousness of the offense, promote respect for the law, and to provide just punishment for the offense.” The court of appeals determined that the conduct of these corrections officers were particularly egregious, especially McQueen who was the sergeant in charge of the youthful offender wing of the prison. The court reviewed in detail the specific acts of violence he carried out and pointed out the statute’s intent was to protect citizens from the abuse of power by those who infringe on rights secured by the Constitution. The sentence also failed to adequately deter criminal conduct, which in this case involves the violent abuse by corrections officers against inmates which may easily go undetected or unpunished.

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In U.S. v. Curbelo, the defendant was convicted following a trial of conspiracy to manufacture and possess marijuana with intent to distribute in connection with his involvement with an indoor marijuana growing operation in Naples, Florida. He was specifically charged with conspiracy to manufacture and possess with intent to distribute 1,000 or more marijuana plants and conspiracy to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. §§841 and 846. The defendant was hired initially hired to work as a carpenter for Diaz, who offered the defendant the opportunity to work as a caretaker for one of his grow houses and received a percentage of the profit to supervise the house. Later, Curbelo became more involved as Diaz gave him opportunities to work on other grow houses. Eventually the DEA placed GPS tracking devices on vehicles used by Diaz but did not obtain a warrant. The DEA also obtained a court order to intercept Diaz’s cellular phone conversations and intercepted conversations with the Defendant and a coconspirator in which they discussed aspects of the marijuana growing operation.

At trial the government played recordings of the wiretaps on Diaz’s phone, which were in Spanish, so the government provided the jury with an English translation that had been prepared by translator but the government never identified who prepared the transcript. Instead the government used Diaz who was fluent in Spanish and English to establish the accuracy of the transcripts. The defendant objected at trial to the admission of the translations of the recordings without putting on the witness who made the translations. The defendant objected to the admission as a violation of the Sixth Amendment Confrontation Clause because he could not cross examine the person who translated the records. In resolving this issue the court of appeals had to decide if the transcripts contain statements that are testimonial and hearsay. It found the conversations themselves were not hearsay because Diaz testified ant the defendant’s statements may be admitted against him. Furthermore, the transcripts did not contain a certification by the translator as to the accuracy of the translations. The government merely presented the translations themselves and do not contain any hearsay statement by the translator. There were no express assertions by the translator that could be true or false, only an implicit statement that the translation was accurate. Diaz, who was a participant in the conversations, testified at the trial that based on his independent review of the transcripts and the recordings the English translations were accurate. The only statement the jury heard regarding the accuracy of the transcripts came from Diaz. Therefore, even if the translator made a testimonial statement out of court, she did not become a witness against the Defendant. Diaz testified based on his own judgment, that the translations were accurate.

GPS suppression issue waived.

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In U.S. v. Charles the Eleventh Circuit found that the out-of-court statements by an interpreter to a Custom’s officer interrogating the defendant were testimonial and their admission was in violation of Sixth Amendment right to confront the interpreter as required by the Supreme Court’s decision in Crawford v. Washington. The defendant was convicted of knowingly using a fraudulent travel document, in violation of 18 U.S.C. 1546(a). When Ms. Charles entered the United States, she presented to a Customs and Border Protection officer her Haitian passport and a Form I-512 which provides authorization for persons to travel in an out of the United States while they are in the process of gaining legal immigration status. An inspection of the I-512 revealed that the names on the computer database did not match the name on the document in her possession. She was interrogated by a CBP officer who did not speak Creole but who used an over-the-phone interpreter service under contract with the Department of Homeland Security to communicate with the defendant and conduct his interrogation. The interpreter interpreted from English to Creole and then from Creole to English. At the trial the government did not call the interpreter to testify but presented the testimony of the CBP officer who conducted the interrogation through an interpreter and who told the jury what Charles said through the interpreter. The officer testified that she said that when she started reading the document and noticed the document was illegal because it did not fit her profile.

On appeal the defendant argued that her Confrontation Clause rights were violated by the admission of the CBP officer’s in-court testimony about the interpreter’s out-of-court statements without an opportunity to cross examine the interpreter. The defendant did not have a chance to cross examine the interpreter regarding the meaning any of Charles’ statements or the specific words she used. When the interpreter told the CBP officer that the defendant knew the form was illegal, the defendant could not cross examination about what actual words Charles used in Creole and whether the words she used could have had some other meaning.

The 11th Circuit reviewed this for plain error because the defendant did not object during the trial to the CBP officer’s testimony was a violation of the 6th Amendment. Under plain error standard the court of appeals cannot correct an error not raised at trial unless: (1) there was error, (2) the error was plain, (3) it affected the defendant’s substantial rights, and (4) the court determines the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Analyzing the statements by the interpreter in light of the Supreme Court’s decision in Crawford v. Washington, the court determined that the interpreter’s statements were testimonial. The 11th Circuit determined that the defendant had a Sixth Amendment right to confront the interpreter who was the out of court declarant whose testimony the government sought to introduce through the CBP officer. However, the court of appeals found no plain error because there was no binding circuit precedent or Supreme Court precedent clearly articulating this rule, that the declarant of the statements testified to by the CBP officer is the language interpreter.

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In Castillo v. State of Florida, the defendant filed a collateral challenge to her Florida state court conviction of attempted robbery that took place on Miami Beach. Castillo claimed she received ineffective assistance of counsel and was deprived of her Sixth Amendment right to counsel. In this three-day trial, one of the jurors was absent from the second day of trial, but the juror was not replaced by an alternate. Instead the juror returned the third day to participate in the deliberations and voted with the other jurors to convict Castillo. Castillo’s counsel did not object. While the parties agreed that counsel’s failure to notice and object to the juror’s deliberating after being absent during one trial day was deficient performance, the issue was whether the deficient performance by counsel was prejudicial under of Strickland v. Washington.

The 11th Circuit found no actual prejudice resulted from counsel’s failure to object because all of the testimony presented during the second day, the day the juror missed, was evidence of guilt. Nothing the juror missed would have helped the defendant because the testimony was evidence of guilt. All the evidence presented on all three days was incriminating. Finding that there was no reasonable probability of an acquittal if all 6 jurors heard all testimony presented on the second day, rather than just 5 of them. The Defendant argued however that prejudice should be presumed pursuant to the standard laid out in the Supreme Court’s decision in U. S. v. Cronic. The 11th Circuit found that none of the three Cronic factors applied. First, the court found that the defendant’s counsel was present throughout every moment of the trial and there is no suggestion he did not assist the defendant at any critical stage. Second, the court found the record showed defendant’s counsel did subject the prosecution’s case to a meaningful adversarial testing throughout the trial.

The court rejected the trial court’s finding that the defendant’s attorney’s failure to object to a constitutional or otherwise important error can warrant a presumption of prejudice and therefore result in a reversal regardless of whether there is real prejudice. The Eleventh Circuit rejected this “big error” exception to the actual prejudice requirement. Here, the attorney was present throughout the trial and contested the prosecution’s case. Any errors the attorney committed must be judged under the Strickland standard, which requires a showing of actual prejudice. The district court incorrectly relied on language in the 11th Circuit’s decision in Harding, where the defendant was effectively left with no representation during trial because of a disagreement with his court-appointed lawyer. The district court seized on language in Harding that “silence of counsel may constitute denial of counsel at a critical stage of trial and thus constitute error even without a showing of prejudice.” The district court understood this language to support the defendant’s position in that an attorney’s failure to object to a single error, if the error is big enough, can constitute an extraordinary circumstance justifying a presumption under Cronic. While the language was applicable to the facts in Harding, where the defense counsel stood by silently while the trail judge directed a verdict against his client in a criminal case. Here the failure to object to a juror deliberating, who missed hearing some of the prosecution’s evidence, pales in comparison to the facts of Harding.

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In U.S. v. Valerio the defendant became the target of a federal drug investigation when he was spotted at a hydroponic gardening equipment store by DEA agents acting suspiciously. After the defendant drove away, the agent followed the defendant’s truck and concluded he was acting nervous about being followed. Two weeks later the agents spotted the defendant again at the store and followed him to a Deerfield Beach warehouse where he entered one of the bays. The agents believed the warehouse was in a location suitable for a marijuana grow house operation. Agents later brought out a K-9 dog to sniff the doors but it did not alert to the bay that the defendant had entered. After coming up short the law enforcement decided to send agents to his house to knock on his door and ask to speak with him. They waited for the defendant to emerge from his house. Instead of approaching him to ask questions, they blocked his truck has he tried to drive away from his driveway. One of the agents wearing a bullet proof vest bearing the words “police” drew his firearm and ordered him out of the truck. They conducted a full pat-down search and escorted him to the front of his truck. When asked if he operated grow house he admitted to operating one inside a bay at the warehouse.

The circumstances surrounding the stop and seizure of the defendant did not fall within the Fourth Amendment exception pursuant to Terry v. Ohio. The court found the timing and circumstances surrounding the officer’s seizure of the defendant placed it well outside the Terry exception to probable cause requirement. Given the delay and absence of a contemporaneous observations of the defendant that required swift law enforcement action, the court found there was no activity that would support the underlying purpose behind Terry exception to the probable cause requirement. While there may have been suspicious activity at the time he was observed a week earlier, the passage of time allowed the police to conduct conventional criminal investigation. They could have continued to conduct surveillance of the warehouse or his residence, verify his connection to the warehouse through utility records, or conduct a voluntary encounter with him. None of these investigative tactic would have been a problem under the Fourth Amendment prohibition against warrantless search and seizure. The opportunity to Terry stop is only “justified by and limited to the exigent circumstances of the moment” and cannot be used later after the exigency has expired. “The exception established in Terry to the general Fourth Amendment requirement that all seizures be supported by probable cause is justified by the exigencies associated with law enforcement dealing with the rapid unfolding and often dangerous situations on city streets.” There was no exigency when the defendant exited his house and entered his truck and there was no probable cause to believe he was involved in any illegal activity when he was seized. Statements made by the defendant and evidence obtained as a result of the illegal seizure should have been suppressed.

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The main issue addressed in U.S. v. Pacchioli is whether the defendant’s bribery conviction was time-barred under the statute of limitations,18 U.S.C. §3285. The defendant was an electrical contractor who performed various maintenance services for a hospital run by the Memorial Healthcare system. In order to obtain lucrative service contracts with the hospitals, the contractor enticed the hospital’s facility managers with cash payments, kickbacks, and free goods and services. One of the free services the defendant provided to the managers were free electric generators installed for no charge.

The statute of limitations states that a person can only be prosecuted for an offense if charges are brought within five years after the offense has been committed. The defendant argued his crime fell outside the five year statute of limitations period because the agreement to commit a bribery occurred more than five years prior to the indictment’s return. The court of appeals rejected this argument, finding that his crime was completed at the time the electrical generators were installed. The defendant’s indictment, which tracked the bribery statute, 18 U.S.C. §666, charged him with giving, offering, or agreeing to give a thing of value to a person with intent to influence or reward an agent of the organization. The indictment specifically charged the defendant with giving the generator as a bribe, making the completion point for the crime at the time the bribe was given. The statute of limitations began to run when the installation the electrical generators at the facility manager’s home. The evidence presented to the jury showed the bribe was paid less than five years before the date of the indictment and within the limitations period. The trial court gave the jury a statute of limitations instruction, which allowed the jury to find him not guilty if it found the crime was completed more than five years before the indictment’s return. The court noted that the defendant did not challenge the instruction to seek a more precise wording on what the instruction meant for an offense to be completed.

Sufficiency of the evidence

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In U.S. v. Whatley, the defendant was charged with four armed bank robberies that took place from 2003 through 2006. He was arrested following an aborted robbery attempt in 2007, to which he pled guilty. At his federal criminal trial on the earlier four bank robberies, the government called 14 different bank employees as witnesses who identified Whatley. The defendant challenged the admission of the in-court identifications by the 14 bank employees claiming a violation of the Due Process Clause. Whatley relied on 11th Circuit precedent which held that the admission of an in-court identification may violate a defendant’s federal right to due process if the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (Code v. Montgomery) Whatley argued the in-court identification was unnecessarily suggestive because he was the only African American in the courtroom other than courtroom personnel, he had never been identified in a line-up or photo array before trial, and he was first seen by the witnesses during their testimony.

The panel held that in Perry v. New Hampshire the Supreme Court abrogated the 11th Circuit’s in-court identification precedent. Perry held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not arranged by law enforcement officers. Perry rejected the argument that due process requires judicial prescreening of all identifications obtained under suggestive circumstances. Because the identification was not the result of improper police conduct, there was no due process violation. The 11th Circuit ruled that the defendant’s right to due process was protected byt the right to confront all eyewitnesses who identified him in court, the right to offer impeachment evidence, and the limiting instructions given by the district court given before each in-court identification.

Prior attempted bank robbery was admissible

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