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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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The defendant in U.S. v. Castro was indicted on five counts of possessing marijuana and cocaine with intent to distribute and several firearms offenses including carrying a firearm during and in relation to a drug trafficking offense. Castro had hired an attorney and entered a not guilty plea at his arraignment. He later negotiated a plea agreement with the government which was reduced to writing and signed by Castro just minutes before his change of plea hearing. Because he was taking medication and said he was under the influence of the medication at that time, the plea hearing was postponed. The plea agreement called for Castro to plead guilty to seven of his charges including 3 drug counts and 4 firearm counts. A this change of plea hearing Castro told the district court that he did not want to go forward with the change of plea and was not happy with his defense lawyer and he wanted the court to appoint a new attorney from the public defender’s office to represent him. The district court confirmed that Castro wanted a new attorney. At the request of the defense counsel, the district court advised Castro of the consequences of reneging on his plea agreement with the government. The district court asked Castro if he understood that the government made certain concessions in the plea offer and if he does not plead the government may charge him with other things that will make the sentence more severe. After being told that by the district judge, Castro announced that he would proceed by taking the plea with his counsel and he withdrew his request for the appointment of a public defender. He was later sentenced to 156 months. Soon after the sentencing he moved to withdraw his guilty plea saying he was unhappy with his counsel and his sentence. In his appeal, Castro argued that the district court participated in plea discussions in violation of Rule 11(c)(11).

The 11th Circuit repeated the rule that provides for the parties to engage in plea discussions but the rule was designed separate the sentencing court from any plea discussions for two reasons: 1) judicial participation in the plea process may coerce the defendant into accepting a plea agreement involuntarily; 2) judicial participation may affect the court’s impartiality; and 3) judicial participation affects the appearance of impartiality. Citing 11th Circuit’s opinion in United States v. Johnson, the court said that any discussion between the defendant and the sentencing court of the consequences of a guilty plea as compared to going to trial is inherently coercive. The court reaffirmed that Rule 11 creates a bright-line rule and the district court violated the rule against judicial participation in plea discussions by telling Castro he faced a sentence even more severe if he rejected the plea agreement. It did not matter that the district court may have been motivated by concern that Castro be thoroughly apprised of the situation he faced, no matter how well-intentioned. Until a plea agreement is reached between the parties, the sentencing court cannot offer comments touching upon proposed or possible plea agreements because those comments could coerce the defendant into entering a plea involuntarily. The Defendant was allowed to withdraw his guilty plea and the case was assigned to a different judge.

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In U.S. v. Philador the two defendants pled guilty to conspiracy to steal government funds in violation of 18 U.S.C. §371 and to the charge of theft of government funds in violation of 18 U.S.C. §641. Their offenses involved a scheme to submit fraudulent tax returns to the Internal Revenue Service using stolen social security numbers. They then received refund checks from the government and deposited the funds into various corporate accounts of companies they controlled. The presentence investigation report recommended a six-level enhancement to their offense level pursuant to guidelines section §2B1.1(b)(2)(c) because it claimed the offense involved 250 or more victims. Only twenty-six of the taxpayer victims had been positively identified by the government. The defendants objected to the enhancement, and while they conceded there were more than 250 social security numbers used to file over 250 fraudulent tax returns, the defendants argued that the government failed to meet its burden because the government failed to show by a preponderance of the evidence that 250 of the social security numbers were authentic and belonged to living people.

In rejecting the defendant’s argument, the 11th Circuit found the district court did not err in finding there 250 victims. There was no dispute that over 250 social security numbers were used to cause the Internal Revenue Service to issue fraudulently submitted returns. Because the Internal Revenue Service issued refunds for tax returns associated with those numbers, the district court made the “legitimate” inference that social security numbers corresponded to actual persons. The 11th Circuit has stated in prior cases that it is not necessary for the government to show that in the context of a government issued identification the government verifies an individual’s identity before it issues a driver’s license or a passport. It is reasonable to conclude that the government routinely obtains an applicant’s identity to verify the authenticity of that identity. Here the district court could infer, based on common sense and ordinary human experience that the Internal Revenue Service verifies identifying information, like social security number, before issuing a tax refund. The fact that the Internal Revenue Service paid the refund to the defendants indicates that the social security number used to procure the refunds are associated with real people and the district court’s conclusion was not erroneous.

Additionally, the district court did not err in applying the six-level enhancement without first finding the victims were living. A victim in this context under the sentencing guidelines a victim is a person whose means of identification was used unlawfully. A means of identification is limited to an actual, and not fictitious, individual. The 11th Circuit found the plain meaning of the phrase “actual” does not distinguish between living and deceased persons. Therefore it was not necessary for the district court to make this finding.

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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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In U.S. v. Hamilton, the defendant appeal the denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which authorizes a court to modify or reduce a sentence for an amendment to the guideline range. The defendant pled guilty to drug offenses including conspiracy to possess and distribute 50 grams or more of cocaine base (crack cocaine). The defendant’s presentence investigation report (PSR) stated that the defendants in the conspiracy received at least one kilogram of powder cocaine that was cooked into crack cocaine. He was assigned a base offense level of 38 based on the drug offense involving at least 1.5 kilograms of crack cocaine. The defendant objected to this base offense recommendations by the PSR. In response to the defendant’s objections, the PSR said that at least two weeks of activities by the conspiracy would have been sufficient to make at least 1.5 kilograms of crack cocaine. The addendum implicitly used the conversion rate of 75% of powder cocaine to powder. At sentencing the district court adopted the addendum’s calculation that the defendants received on kilogram of powder per week and operated for at least 2 months.

The defendant filed a motion for sentence reduction pursuant to 3582(c)(2) in light of amendment 750 to the guidelines which raised to 8.4 kilograms the minimum amount of crack cocaine necessary to establish a base offense level of 38. In response to the motion to reduce, the probation officer found the defendant was responsible for 12 kilograms of crack cocaine and fell under the offense level of 38. The defendant’s response was that at sentencing the district court initially only found him responsible for at least 1.5 kilograms of cocaine.

The 11th Circuit held that the district court may reduce a defendant’s sentence based on a subsequently enacted amendment if the sentencing Guidelines make the amendment retroactively applicable. In determining the amended guideline range, the district court may not reconsider any guideline application decisions and must leave all previous factual decisions intact. The district court is limited to considering the sentence that it would have imposed had the amendment been in effect at the time of the original sentencing and must leave all its previous factual decisions intact.

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In U.S. v Washington the defendant pleaded guilty to conspiracy to traffic in unauthorized credit cards and using and trafficking in unauthorized credit card numbers in violation of 18 U.S.C. § 1029. The presentence investigation report recommended an enhancement under sentencing guidelines § 2B1.1(b)(2)(C) because the number of victims exceeded 250, the threshold number for a 6-level enhancement. Washington disputed the number of victims and requested that the government identify the victims by name. The defendant noted the government only identified 70 banks and financial institutions and requested hard evidence of the 250 or more victims. He also disputed the length of time he was involved in the conspiracy.

At the sentencing hearing, the government did not present any evidence identifying 250 or more victim and only argued that there were thousands of individuals who had their credit cards stolen. The district court ruled for the enhancement noting that it previously applied the enhanced the codefendants’ sentences.

The 11th Circuit held that the government has the burden of introducing sufficient and reliable evidence to prove the necessary facts by a preponderance of the evidence. The government did not meet its burden because it did not introduce any evidence to support the enhancement. While the government told the sentencing court there were over 250 individuals who have been victims of stolen credit card information and other related account information during the time the defendant was involved in the scheme, the representation was insufficient. Absent a stipulation by the parties, an attorney’s factual assertions at a sentencing hearing do not constitute evidence that the district court can rely upon in the face of challenged conclusions of the presentence investigation report. Even though the district court had applied the enhancement to the coconspirators, those findings could not serve as a basis for applying the enhancement to the defendant because the defendant objected. The defendant should have been given an opportunity to rebut the evidence or to generally cast doubt on its reliability. Furthermore, the defendant was not a participant of the conspiracy during the entire duration and without the information about the identities of the victims and the dates of the theft of their credit card information, the government failed to meet its burden of showing that the fraud scheme involved more than 250 victims during the time of the defendant’s involvement.

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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 U.S. v. Hall, the defendant pled guilty to the charge of possession of a handgun by a convicted felon. The district court enhanced his sentence after the court determined that a prior felony conviction for possession of an unregistered shotgun qualified as a crime of violence under the sentencing guidelines. The guidelines require an enhancement for a defendant who commits any part of the offense subsequent to sustaining one felony conviction of a crime of violence. The guidelines commentary states that the unlawful possession a firearm, such as a sawed off shotgun as described in Title 26 U.S.C. § 5845, is a crime of violence and inherently dangerous when possessed unlawfully.

Citing the Supreme Court’s decision in Stinson v United States, the 11th Circuit affirmed that a commentary in the sentencing guidelines manual which interprets or explains a guideline is authoritative, unless it violates the constitution, a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline.

The sentencing guidelines defines a crime of violence as follows: an offense that has as an element the use, threatened use, or attempted use of violence or physical force; a burglary of a dwelling, arson, or extortion, involves the use of explosives; or otherwise involves conduct that presents a serious risk of physical injury to another. The court in recent precedent has elaborated on this “crime of violence” definition. An offence can be a crime of violence if it fits into one of three categories. The first is referred to the elements clause crimes, the second category includes the enumerated crimes of burlary of a dwelling, arson, etc. The third category is the “residual clause”, included those crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

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In U.S. v. Cruz, the defendant and her brother obtained credit cards numbers which they purchased from a waiter working at a Flanigan’s restaurant in Hialeah, Florida. Using a credit card skimming device, the waiter sold the skimmed numbers to a codefendant who was married to Cruz. Cruz’s sister also a codefendant worked at a Target. At one point after a complaint by a customer about an authorized purchase of $200 on the credit card, Target security began to focus on the sister. While working the register they observed her and became suspicious because she was continuously selling to the same man buying stacks of gift cards and other merchandise. She sold 65 gift cards and 50 “other” other transactions involving the same two customers. After she was interview by Metro-Dade Police, she admitted selling to her brother who came into the store to use credit cards she knew to be fraudulent and did not belong to him.

They were convicted of aggravated identity theft. The identity statute, 18 U.S.C. §1028(a)(1) mandates a 2 year additional consecutive sentence for a defendant convicted of a predicate crime if during (or in relation to) the commission of the predicate crimes, “the offender knowingly transfers, possess, or uses, without legal authority, a means of identification of another person.” The 11th Circuit found that the defendant’s underlying offense of using an unauthorized access devise (section 1029) was a predicate offense for purposes of §1028A and were subject to the 2 year consecutive sentence in addition to the guidelines sentence. In calculating the guidelines sentence, the district court gave them a two- point increase for the use of a device-making equipment under U.S.S.G. §2B1.1(b)(10)(A)(i).

The defendants argued this was double counting and found support in the commentary of U.S.S.G. §2B1.6 which limits the application of §2B1.1(b)(10) to avoid double counting. That section states that the guidelines sentence for an aggravated identity theft conviction under §1028 is the statutory term of imprisonment. The commentary prohibited applying any specific offense characteristics for “the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense” because the sentence under 2B1.6 accounts for this relevant conduct. The defendant interpreted this commentary to prohibit a guidelines enhancement for relevant conduct that includes the use of a device-making equipment. The 11th Circuit did not agree and found that §2B1.6 allows for an enhancement for the use of device-making equipment. The court interpreted the commentary of §2B1.6 to prohibit the enhancement where the relevant conduct pertains to the transfer, possession or use of a means of identification. Here, the defendants’ enhancements were premised on relevant conduct related to the device-making equipment. The court found the commentary did not prohibit this relevant conduct from serving as the basis for the increase. The evidence supported the enhancement given the sister’s knowledge her codefendant brother bought merchandise using credit cards that did not belong to him. There was also circumstantial evidence that the sister knew about the skimmer because she lived at the same address where it was found.

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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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