Articles Posted in Federal Trial Issues

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In U.S. v. Diaz Calderone, the defendant was convicted and sentenced for the federal crime of being found in the United States after having been deported. The issue here is whether a prior Florida aggravated battery conviction should be classified as a “crime of violence” under the sentencing guidelines to warrant a sentence enhancement. The 11th Circuit found it was, and in this appeal the defendant challenged the district court’s application of the “modified categorical” approach in determining that Diaz Calderone’s prior was a crime of violence.

The defendant’s aggravated battery conviction, he was specifically charged with the battery on a pregnant victim whom the perpetrator knew or should have known was pregnant. Under the Florida statute for battery, an aggravated battery upon a pregnant woman need not be violent and can be committed merely by intentional touching the pregnant victim against her will by committing a simple battery. Simple battery occurs when a person intentionally touches or strikes another person against their will, or intentionally causes bodily harm to another person. Therefore under Florida law, aggravated battery upon a pregnant woman can be accomplished by: 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm. The 11th Circuit determined that a conviction for aggravated battery on a pregnant woman is not a categorical crime of violence because the slightest contact could be an aggravated felony under the Florida statute but not a crime of violence under the federal sentencing guidelines for sentencing guidelines purposes. The district court correctly applied the modified categorical approach.

The charges and conviction did not establish what Diaz-Calderone did because he pleaded nolo contendere to an information which charged him in the disjunctive with intentionally touching or striking the victim against the person’s will or intentionally causing bodily harm to the victim. Standing alone the charges are consistent with either mere touching, which would not be a crime of violence, or with causing bodily harm, which would be a crime of violence.

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In Adkins v. Alabama Department of Corrections, the petitioner, Adkins, was tried and convicted of first degree murder of a Caucasian woman. Adkins is also Caucasian. At the jury selection of his trial, the state exercised nine of its 24 peremptory strikes to remove nine of eleven black potential jurors. Adkins struck one of the two remaining black jurors and ultimately only one black juror served on the jury. At the time of the trial in 1988, the rule in Alabama was that a white defendant lacked standing to challenge the state’s exercise of peremptory strikes to remove black jurors from the panel. For this reason there was no objection from the defense nor was there a proffer of reasons by the prosecutor for striking the nine black jurors. The conviction was affirmed and he was sentenced to death. The Alabama Supreme Court affirmed the conviction. While his case was on appeal in the Alabama courts, the U.S. Supreme Court decided in Powers v. Ohio that a defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded juror share the same races. Adkins included a Batson challenge to his appeal to the Alabama Supreme Court, which remanded the case to the trial court for a Batson hearing. At the hearing, the prosecutor proffered reasons for striking each of the nine black jurors. The reason given for striking one juror which is the issue in this case, the prosecutor said, “he answered during the voir dire that he knew about the case and because he was also single.” It turned out the potential juror was married and the trial directed the state attorney to supplement the Batson hearing by providing an affidavit explaining his contention that the juror was single. The prosecutor gave as his reason that he believed he was single and their notes do not show he was married. The trial court accepted this explanation and the Alabama courts affirmed the conviction. Adkins filed a 2254 motion in the federal court raising a Batson claim and the district court denied his claim.

The 11th Circuit noted the three-step inquiry to evaluate a prosecutor’s use of peremptory strikes: 1) a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; 2) if that showing is made, the prosecutor must offer a race neutral basis for striking the juror; 3) in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Here the focus was on how the Alabama state courts applied the third step in Adkins’ appeal. The 11th Circuit noted that in analyzing a defendant’s showing of purposeful discrimination, the trial court must “consider all relevant circumstances” in weighing the prosecutor’s proffered reasons for the strike. The 11th Circuit concluded that the Alabama appellate courts unreasonably applied the third step of Batson when it failed to consider all relevant circumstances bearing on whether Mr. Adkins established purposeful discrimination. The Alabama appellate court did not fully complete the third requirement of Batson by failing to consider the relevant circumstances bearing on the ultimate issue of discriminatory purpose beyond the fact that the prosecutor had proffered race-neutral reasons for its strikes.

The 11th Circuit found that the appellate court did not consider relevant circumstances raised by Adkins such as: 1) the strength of Adkins’ prima facie case; 2) the fact the prosecution explicitly noted the race of every black veniremember (and only black veniremembers) on the jury list the state relied on in jury selection; 3) the fact that specific proffered reasons provided by the prosecutor turned out to be incorrect or contradicted by the record; 4) the trial court did not subject the prosecutor’s affidavit to adversarial testing, and 5) the fact the trial court relied upon facts not part of the record, such as the trial court’s personal experience with the prosecutor (in finding the prosecutor to be credible.)

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In U.S v. Davis the defendant was charged in a 16-count indictment with various offenses arising out seven armed robberies. During the jury selection one of the prospective jurors, a dance instructor, announced she had a problem serving because she was paid by the hour and would not be paid during the trial. Another prospective juror said her English was poor. Both were seated as jurors anyway. The 12 jurors were empaneled, but there were no venire members remaining to select as alternates, and the trial began without alternates. After the trial began, the defendant announced that he was dissatisfied with his court-appointed counsel and insisted on representing himself. The defendant also announced to the court that he wanted to go back to his cell for the remainder of the trial and turned down an offer that would have allowed him to monitor the proceedings from his cell. The trial continued under those conditions, with the defendant representing himself from his cell. When the trial court took an early lunch break to review the issue of the defendant’s absence from the trial, the dance instructor approached the trial judge and persisted about the loss of income she faced and the affect this would have on her finances. The non-English speaker also approached and informed the trial court and informed the court that she did not understand everything. When the defendant was asked if he would agree to go with less than twelve he refused. Because the opening statements had been given, the trial judge decided he could not ask the clerk to send up more prospective jurors. The court found it necessary to dismiss the two jurors. The defendant advised the court that he did not agree to a jury trial of less than twelve jurors. The trial judge decided the only alternative was a mistrial. Defendant’s standby counsel moved for to dismiss under Double Jeopardy because he argued there was no manifest necessity. The district court denied the motion and the defendant took an interlocutory appeal.

The issue in this appeal was whether a retrial was prohibited under the Fifth Amendment of the U.S. constitution. The “Double Jeapardy Clause” states that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Jeopardy attaches when the jury is empaneled and sworn and subject to limited exceptions is entitled to have his case decided by that jury. One of those exceptions applies when the mistrial was caused by “manifest necessity,” which means “the ends of public justice would otherwise have been defeated by continuing the trial.”

The 11th Circuit found no Double Jeopardy violation caused by the trial court declaring a mistrial. Rule 23(b) required a jury be composed of 12 persons and proceeding with less than 12 requires stipulation by the parties. The defendant objected to proceeding with a jury of less than 12. The court found that dismissal of the juror with poor understanding of English was manifest necessity. While she showed sufficient language proficiency during voir dire, she brought her language difficulty to the trial court’s attention after the trial started. Under those circumstances dismissing her as a juror became a matter of manifest necessity. Davis’s position was against a jury of less than 12 and his position was for a trial with the original 12. Because that was impossible due to the language difficulty of the juror, the mistrial was the only alternative.

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The defendant in U.S. v. Darden was charged with obstructing commerce by robbery and brandishing a firearm in connection with two robberies. In the first underlying incident, an armed robbery of a Tampa, Florida convenience store, the gunman fled without apprehension. In the second incident Darden was shot by the pursuing store clerk. In the second incident Darden was apprehended and admitted to the robbery. Charged with both robberies, Darden went to trial placing the defense counsel in the position of having to vigorously defend against both robbery charges or concede guilt as the second robbery to save credibility in defending Darden against the first robbery. Apparently without consulting Darden, his counsel chose the latter. At trial, Darden’s attorney conceded the evidence was enough to convict of the second robbery, but not enough for a guilty verdict on the first robbery. The attorney argued that by charging Darden with both robberies, the government was trying to “buy a verdict and get one free.”

After his convictions were affirmed on appeal, Darden brought a 2255 collateral challenge claiming ineffective assistance of counsel arguing that under the Supreme Court’s decision in U.S. v. Cronic, the decision to concede guilt on one of the two charges without consulting his client was presumptively prejudicial. In Cronic the Supreme Court held that if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” prejudice is presumed, making unnecessary the 2-step analysis in Strickland v. Washington, which requires that the defendant show 1) deficient performance by counsel and 2) the deficiency caused substantial prejudice to the case.

The issue facing the 11th Circuit was to determine whether the defense counsel failed entirely to subject the government’s case to meaningful adversarial testing. In other words, whether to analyze Darden’s ineffective assistance claim under Strickland or under Cronic. The 11th Circuit held that Cronic did not apply and Darden would have to show he suffered substantial prejudice by his counsel’s failure to consult with him about the trial strategy.

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In U.S. v. McGuire, the defendant challenged the sufficiency of the evidence to support his conviction of attempting to damage, destroy, disable, set fire to, or wreck an aircraft in the special aircraft jurisdiction of the United States in violation of 18 U.S. C. §32(a)(1). After McGuire shot of several rounds of a gun near his driveway, neighbors called police, who responded with officers on the ground and a police helicopter. As the helicopter shined its spotlight in McGuire’s direction, McGuire raised his arm and fired one round in the sky. A deputy saw him fire in the direction of the spotlight as the helicopter orbited and another witness said he fired in the general direction of the helicopter. McGuire said he went outside to fire into the sky randomly without meaning to hit the helicopter and not knowing it was in the sky, but witnesses contradicted his testimony by attesting to the noise and vibrant light the helicopter produced. McGuire argued the the deputy’s testimony was inherently incredible and that a reasonable person would believe it beyond a reasonable doubt because McGuire stood still without moving to follow the helicopter’s path or tacking it as he fired. The 11th Circuit found McGuire’s argument is simply disputing the inference a jury can draw from the evidence, and the inferences have to be drawn in favor of the jury verdict.

The 11th Circuit also upheld district court’s finding that the offense of attempting to damage destroy, disable, or wreck an aircraft is a crime of violence for the purpose of 18 U.S.C. 924(c)(1)(A), which imposes a consecutive sentence for anyone using a firearm in connection with a crime with a crime of violence. The court used the “categorical approach” because § 924 defines a criminal offense as “an offense” that “has as an element the use, attempted use or threatened use of physical force against the person or property of another” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used.” The categorical approach must reference the elements of the offense and not the actual facts of McGuire’s conduct, and for this reason, even though firing a gun at a helicopter is unmistakably violent, the categorical approach requires the court to determine whether the crime, in general, plausibly covers any non-violent conduct. “Only if the plausible applications of the statute of conviction all require the use or threatened use of force can McGuire be held guilty of a crime of violence.”

The 11th circuit found that a federal jurisdictional element of the statute requires that the aircraft be “in flight” which is defined as encompassing the time the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave.” In other words the conviction was for attempting to damage or disable an aircraft that was either flying or ready to take off or arriving at its destination. In that context the offense was offense necessarily involved the attempted or threatened destruction of sensitive property or lives and was a crime of violence.

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Jimenez was convicted of violating 18 U.S.C. § 666 for misapplying funds from a federally funded program. He challenged the factual sufficiency of his conviction to the 11th Circuit arguing that he did not misapply funds within the meaning of 666(a)(1)(A). The 11th Circuit found in United States v. Jimenez that no federal crime took place and reversed the conviction with directions to enter a judgment of acquittal. Because the facts are important in a judgment of acquittal, the background is set out here.

Jimenez was Deputy Director of Fiscal and Administrative Services for Hillsborough County’s Head Start Program, a federally funded program that provides educational and health care to preschool children from low-income families. Jimenez’s wife Melendez, a microbiologist, wrote a children’s book intended to educate children “about germs and their relationship to disease” She sent her husband, Jimenez, an email suggesting that Head Start could use to the book to “encourage kids to read.” Jimenez relayed the information to his peer at Head Start, Mason, who served as the Deputy Director of Program services. Mason knew that Jimenez’s wife authored the book. Jimenez and Mason brought a copy of the book to Bell, a registered nurse with Head Start and asked Bell to look at the book for her opinion on whether to order copies of the book for the Head Start children. Bell nixed the idea because she thought the book was too advanced. Bell showed the book to Navejar, another official at Head Start, who recommended against purchasing the book because it implicated a conflict of interest for Jimenez’s wife to profit from a head Start transaction. Bell and Navejar brought this concern to the attention of Knight, Bell’s supervisor. Despite Bell and Navijar’s concerns, Mason, who supervised Knight, told Bell to order the book. Because Bell did not have purchasing privileges, she referred the task to Navejar. Soon after, Jimenez e-mailed Navejar price quotes on the book. Mason initiated and approved a $9,000 order for 750 copies of the book. Melendez delivered the books, a report authorizing payment to Melendez was issued, and Jimenez signed a form acknowledging the books had been received. Shortly afterwards a check was issued to Melendez. Throughout this period, Head Start required every employee to complete disclosure forms within 45 days of any change in the conflict of interest status, including circumstances in which an employee’s spouse entered into a contractual relationship with Head Start. Jimenez failed to file a disclosure the conflict of interest stemming from his wife’s transaction with Head Start.

Jimenez was indicted and convicted of misapplying funds from a federal program and honest services fraud. The judge entered a judgment of acquittal for the honest services count but upheld the § 666(a) conviction. A conviction under § 666(a) requires the prosecution to show (1) Jimenez was an agent of Head Start, (2) he obtained funds by fraud or intentionally misapplied property of Head Start property in excess of 5,000, and (3) Head Start received federal assistance. The prosecution’s theory was that Jimenez “intentionally misapplied” $9,000 in Head Start funds by brokering 750 copies of his wife’s book. The court found the term “misapply” connotes the offender exercises some degree of power over the funds of the agency. There was no evidence demonstrating that Jimenez misapplied any Head Start funds. Even though there may have been an conflict of interest, standing alone without evidence of bribe or kickback is insufficient to sustain a conviction for intentionally misapplying funds for a violation of §666. The evidence showed it was Mason, not Jimenez, who approved purchase and directed the Head Start funds for payment of the book. Though Jimenez did not disclose his wife’s financial stake in the transaction, the 11th Circuit is “reluctant to metamorphose every municipal misstep into a federal crime” and the court would not stretch the language of §666 to find a white collar crime here.

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Sandra Day O’Connor sat on this panel also. The opinion was written by Judge Pryor. In U.S. v. Garcia-Sandobal, the defendant, citizen of Honduras, entered the United States illegally and committed a variety of crimes. After he was deported in 1998, he reentered illegally, and committed more crimes, including a conviction for disorderly intoxication for which he was sentenced to 50 days in jail. In 2010 he was indicted in federal court located in Florida with the federal crime of being found in the United States after having been previously removed under 8 U.S.C. section 1326.

Section 1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant was removed following a conviction of an aggravated battery. The indictment alleged Garcia’s three prior aggravated felonies imposed before his removal including 1996 convictions for battery on a law enforcement officer and obstructing an officer with violence. At Garcia’s guilty plea he announced that he was preserving the right to challenge the classification of the prior sentences as aggravated convictions. As expected, the pre-sentence investigation report recommended a 16 point enhancement base on the 1996 conviction for obstructing an officer with violence.


Garcia’s claim that the federal district court erred when it accepted his guilty plea was waived by his guilty plea.

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When Rozier was sentenced in 2001 Rozier distributing crack cocaine, the sentencing court in the southern district of Florida enhanced the sentencing guideline applying the career offender provision because it found he had two prior felony convictions for a violent crime. One of the two predicate prior was a Florida felony for battery on a law enforcement officer in violation of Fla. Stat. §784.07(2)(b). Rozier appealed the enhancement on the grounds that the felony was not a crime of violence under §4B1.2(a) of the guidelines. The Eleventh Circuit affirmed the sentence in U.S. v. Rozier (Rozier I) reasoning that the crime of battery qualified as a crime of violence under the residual clause of guideline §4B1.2(a)(2) because in committing the unlawful touching “the offender creates the potential for violence to the officer, a violent response on the officer’s part and the risk of harm to bystanders.”

Following the decision in Rozier I, the Supreme Court decided Johnson v. U.S., 130 S.Ct. 1265 (2010), that Florida’s battery offense is not a “violent felony” under the Armed Career Criminal Act (ACCA) elements clause of 18 U.S.C. 924. In U.S. v Rozier, the defendant filed a 2255 motion to set aside his sentence relying on the Johnson case and the district court in Ft. Lauderdale denied the motion and issued a certificate of appealability on the issue of whether Johnson should be given retroactive application so that Rozier’s career offender status should be eliminated and he should be resentenced. But the Eleventh Circuit phrased the issue in this case as follows: “Whether the Supreme Court’s Johnson decision is a change in the controlling law that was applicable at the time of Rozier’s sentencing and at the time we affirmed his sentence.”

The Eleventh Circuit ruled that Johnson was not a change in the law. While the Johnson decision did find that the Florida felony of battery is not a violent felony under the elements clause of the ACCA, the Supreme Court did not reach the issue of whether the crime of battery is a crime of violence under the residual clause of the statute. Because there was no change in the controlling law since the Eleventh Circuit affirmed Rozier’s conviction in the first appeal, 2255 relief cannot be given. Even applying a modified categorical approach, which permits the court to determine which statutory phrase was the basis for the conviction by consulting the trial record, charging documents, plea agreements, transcripts of plea agreements, etc., there was a factual basis for the sentencing court to find that Rozier’s battery conviction was a crime of violence. The original panel affirmed the finding the prior conviction fit within the residual clause, and the Eleventh Circuit would not reverse the original panel’s decision based on Johnson.

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In U.S. v. Dortch the Defendant was charged in federal court in Florida with the federal crimes of possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The federal charges also included the possession of two specific firearms by a convicted felon. The indictment alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce at trial 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

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The Defendant in U.S. v. Dortch was charged in federal court with possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a federal criminal drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The indictment also charged the defendant with possession of two specific firearms by a convicted felon and it alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

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