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The defendants in U.S. v. McGarity were convicted following trial of engaging in child exploitation enterprise (CEE) 18 U.S.C. 2252A(g), receiving child pornography, 2252A(a)(2), and conspiracy to transport, receive, and possess child pornography, 2251(d)(1). The arrests grew out of a tip to Australian police of a child pornography ring operating through an internet newsgroup. After following the ring’s operation, the police learned that members of the newsgroup were allowed in only after completing certain tests designed to weed out law enforcement infiltrators. Members accepted into the newsgroup were given an encryption key allowing them to post texts, communicate with one another, and post child pornography.

The defendant challenged the constitutionality of 18 U.S.C. 2252A(g) on the grounds that certain terms in the statute are vague and overbroad, specifically the term “series” in “as part of a series of felony violations” and the phrase “three or more separate incidents.” Because the 11th Circuit rejected a vagueness challenge in U.S. v. Wayerski, 624 F.3d 1342 (11th Cir. 2010) the 11th Circuit disposed of this issue finding the same reasoning applied to this case. The statute survived a facial vagueness challenge because it was “clear what the statute as a whole prohibits” and is clear to a person of ordinary intelligence that 2252A(g)’s plain language prohibits “the commission of specified child pornography offenses that occur as a series of three or more separate instances, involving two or more victims, and three or more persons acting in concert with the defendant.”

One defendant challenged his sentencing enhancement for obstruction of justice. When agents sought execute a search warrant at the defendant’s home, the agent’s knock and announce request was ignored for about 30 minutes. After entry was finally gained, agents found him running a destructive wipe program on his computer. The Court upheld the sentencing guidelines enhancement for obstruction because the agents could not gain access to the defendant’s home with a search warrant and found the defendant running the wipe program. Proof was sufficient to warrant the enhancement.

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The Defendant in U.S. v Ignasiak was a medical doctor convicted of dispensing controlled substances in violation of the Controlled Substances Act and for committing health care fraud. The prosecution’s theory was that Ignasiak prescribed unnecessary or excessive quantities of controlled substances (pain killers) without a legitimate medical purpose and outside the usual course of professional practice. Ignasiak ran a busy medical practice out of a medical clinic as the only medical doctor in a rural Florida panhandle town, seeing up to 32 patients each day. Evidence showed he was always available for people who became sick and needed to see a doctor right away. Most patients came in to renew their prescriptions, but he always interviewed and examined his patients before they got a prescription.

At some point his practice drew the attention of the federal Agency for Health Care Administration due to concerns that as a family practice doctor he was billing for higher than normal levels of service. The auditor reviewed 30 of the Defendant’s patients’ charts that he selected out of more than 3,700 patients and found the charts did not justify the charges he was submitting to Medicaid. He concluded that Ignasiak had a practice of prescribing certain narcotic pain-killers in significant quantities. A doctor who took over the practice found patient files appeared to show Ignasiak had been operating a pain management clinic rather than a family practice. Patients who wanted the new doctor to write pain medication became angry when he did not. The government presented testimony from individuals who worked in his office to support the government’s theory the Ignasiak’s practice was to mainly prescribe pain killers for patients that were not really sick. The government also presented patients and patient’s family members to further support this theory by testifying about how these patients became addicted.

Seven of Ignasiak’s patients died from what the autopsy reports concluded were pharmaceutical drug overdoses. The government called as a witness the medical examiner who conducted two of these autopsy reports. The district court allowed this medical examiner to testify about the five autopsies conducted by the non-testifying medical examiners, which included the conclusions that the cause of death was accidental drug overdose for each patient. The testifying medical examiner said she agreed with these conclusions.

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In U.S. v. Vadnais, the 11th Circuit found that a file sharing program does not support a five level sentencing guidelines enhancement and reversed the sentencing. Another panel reached the same conclusion in U.S. v. Spriggs three days earlier involving the software Shareaza 2.0. Vadnais’ 240 months sentence for receiving child pornography included a guidelines enhancement under sentencing guidelines §2G2.2(b)(3)(B), which provides for the enhancement if the offense involves a distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” Vadnais obtained his illicit images over the internet by using LimeWire, a peer-to-peer file sharing software.

Analyzing the sentencing guideline issue, the 11th Circuit noted the commentary defines the 5 level enhancement of 2G2.2(b)(3)(B) as ‘any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” A “thing of value” can include the receiving child pornography “bartered” or in exchange for other child pornography. On this basis, the five level enhancement could apply to a defendant engaging in this activity. Vadnais argued that using the peer-to-peer file sharing software in a way that allowed others to obtain child pornography files from his shared folder did not support the enhancement.

The opinion spends time analyzing how peer to peer software works. The software networks are so named because they allow computers to communicate directly with each other without going through central servers. The software permits users to search for files located in the shared folders on other computers. When found, the requesting user can download the file directly from the other computer. The 11th Circuit found that the LimeWire software encourages users to share files. Its default settings make all files that a user downloads through LimeWire available to other LimeWire users to download.

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In U.S v. Spriggs, Spriggs pled guilty to receipt of child pornography and sentenced to a five level enhancement for distribution of the illegal images for the receiving or expecting to receive something of value under USSG §2G2.2(b)(3)(B). Spriggs kept his child pornography collection in a peer to peer file sharing program called Shareaza 2.0. that could be accessed by other Shareaza users. Spriggs also downloaded the child pornography using the Shareaza program. The default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required extra steps if a user did not want to share files with others using the program. The copy on Sprigg’s computer was rigged to allow peers to download files from his computer. The sentencing judge reasoned that Spriggs distributed the child pornography with the expectation that he would receive either more child pornography or could down load it faster. Law enforcement tried but was unsuccessful in its attempt to download the defendant’s files. There was no evidence showing that other users downloaded files from Spriggs child porn collection.
The 11th Circuit found that Spriggs’ distribution of child pornography is not enough to apply the 5 level enhancement under USSG §2G2.2(b)(3)(B). The distribution must be for the receipt or expectation of receipt of a thing of value. Though the 8th Circuit has applied the enhancement when using the file sharing network to distribute and access child pornography files, the 11th Circuit disagrees with that result. File sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares files. Files are free. The mere use of a program that enables free access to files does not, by itself, establish a transaction that will support a five-level enhancement.

The 11th Circuit refused to follow an 8th Circuit’s decision finding that file sharing programs gave the defendant and expectation of value. Spriggs’ hope that a peer would reciprocate his generosity does not amount to a transaction conducted for “valuable consideration.” There was no evidence that Spriggs entered into a transaction with another user in which he shared his child pornography to gain access to another person’s child pornography. Without evidence that Spriggs and another made a promise with each other to share their illicit collection of images on the file sharing program, this was not a transaction whereby Spriggs expected to receive more pornography. The fact that Spriggs expected to receive faster downloading capabilities when he shared his files was a transaction between he and the software developer but this was not a “for value transaction” between Spriggs and other child porn collectors. There was no evidence that there was downloading priority given to Shareaza 2.0 users which would then allow someone like Spriggs to download child pornography faster. The record did not support a conclusion that Spriggs entered into a child pornography distribution transaction with the expectation he would receive a thing of value.

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In U.S. v. Miranda, defendant Miranda negotiated with an undercover agent to purchase some firearms in exchange for a quantity of heroin. Miranda expressed a strong desire to obtain the firearms right away and he and the undercover agents agreed to exchange 4 handguns and 3 machine guns for 57 grams. Miranda would not even accept money for partial payment; He insisted on a firearm. Miranda was charged with several counts, most relevant was possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A).

Miranda appeals the denial of his motion to dismiss and motion for judgment of acquittal, claiming that the possession of the firearms was not in furtherance of a drug trafficking offense. Miranda relied on Watson v. United States and United States v. Montano, two Supreme Court finding passive receipt of firearms did not further a drug trafficking offense. In each of those cases, the Supreme Court said that where the agents bartered for drugs by offering a firearm, it was the agents who were using the firearms and not the defendant.

The 11th Circuit did not agree, basing its decision on the plain language of the statute and other decisions of the Supreme Court and other circuits. The charge here involved the “possession” element, which the Supreme Court found was different in this context and “use” connoted more than mere possession. The language of 924(c)(1) makes it an offense for a person who “in furtherance of a drug trafficking crime, possesses a firearm. Earlier 11th Circuit decisions concluded that Congress sought to address the inherent dangers of having firearms in the proximate area of drug transactions when their presence was intended “to advance or promote the criminal activity.” Other 11th Circuit decisions have taken a broad view of how possessing a firearm is in furtherance of a crime to include any set of facts when the firearm helped, furthered, promoted or advanced the drug trafficking. The 2nd Circuit has agreed. “So long as the prosecution offers proof of some nexus between the firearm and the drug selling operation, the defendant is subject to enhancement of his sentence under section 924(c)(1)(A).”

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In U.S. v Webb, the defendant pleaded guilty to possessing a firearm as a convicted felon. He was arrested when he was stopped by police en route to meet an informant for a drug purchase. Police found cash and a 9mm semiautomatic handgun. Webb was charged with attempted drug possession and possession of a firearm by a convicted felon but in his plea to the gun possession counts the drug counts were dismissed.

This is how his sentencing guidelines were calculated by the sentencing court for this conviction. First, the court looked at USSG §2K2.1, the guidelines for the firearm offense. A four level enhancement applies for possession of the firearm in connection with a drug offense giving him a level 18. Under 2K2.1, if the defendant possessed the weapon in the attempted commission of another offense, the court must calculate the offense level under 2X1.1, which was the drug offense 2D1.1, and then apply the greater of the two offense levels. The fact that Webb was not convicted of a drug offense is irrelevant because the Guidelines commentary states that another offense means “any offense” regardless of whether criminal charges were brought or a conviction obtained. The drug weight raised the offense level to 26. Pursuant to 2D1.1(b)(1) there is a 2 level increase for possession of a firearm during a drug offense for a level 28. Because 28 was higher than the range calculated under 2K2.1, the range under 2D1.1 applied, giving him a range of 70 to 87. Webb challenged the 2 level increase for possession of the firearm because it amounted to double counting. He claimed that his range for the drug offense was higher because of the firearm enhancement.

The 11th Circuit upheld the enhancement and found applying 2D1.1(b)(1) did not result in double counting for the firearm. Double counting occurs when one part of the guidelines increase the punishment for a harm that has been fully accounted for by the application of another part of the guidelines. The plain language of the guidelines shows the Sentencing Commission intended for the enhancement to apply. Section 2K2.1 directs the court to apply the higher of the adjusted offense level as calculated under 2K2.1 and 2X1.1. Section 2X1.1 directs the court to apply the guideline for the substantive offense when it includes “attempt” crimes. Here, 2D1.1 applies to attempted drug possession. The guidelines require the court to apply 2D1.1 in its entirety including the gun enhancement. In fact, the guidelines commentary confirms that the enhancement was intended in the case of a firearm possession.

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In U.S. v. Davila appealed his tax fraud conviction and 115 month sentence. The only issue addressed in this reversal was that the lower court erred in participating in his Davila’s decision to plead guilty. Several months prior to his plea there was an in camera hearing before a Magistrate where Davila had asked to discharge his court-appointed attorney. He complained that his attorney had not discussed any defense strategies with him except pleading guilty. The Magistrate commented that “there may not be viable defense to these charges” and that the advice from his counsel about pleading guilty may be the best advice an attorney could provide his client. The Magistrate went further with the following comments about pleading guilty:

The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.

Several months later Davila pled guilty to a tax fraud charge. On appeal Davila asked that the conviction be vacated, claiming that the magistrate judge’s comments amounted to an improper participation in his plea discussions. Because Davila failed to object to a Rule 11 violation so the issue was treated as plain error. Under a plain error standard the defendant must show:

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In U.S. v. W.B.H. the defendant was convicted of federal drug conspiracy. His sentence included a condition of his supervised release that required him to register as a sex offender under Sex Offender Registration and Notification Act (SORNA) because he had a 20 year old Alabama conviction for first degree rape. The rape conviction occurred in 1987, well before enactment of SORNA in 2006. He was 18 at the time of the rape and given 3 years probation under Alabama law, which at the time did not require that he register as a sex offender. W.B.G. challenged the supervised release condition under the Ex Post Facto Clause of the Constitution, which forbids Congress and the states from enacting “any law which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.”

Supreme Court case law holds that the Ex Post Facto bar applies only to criminal laws and not to civil regulations. The 11th Circuit turned to Smith v. Doe, 538 U.S. 84 (2003) the leading case in determining whether a statute is criminal or civil and non-punitive.

The facts in Doe are similar to the facts in W.B.G.’s case. Doe involved a defendant convicted of a sex offense who was required to register as a sex offender under the Alaska Sex Offender Reporting Act. There Doe made an Ex Post Facto challenge of the Alaska Sex Offender law because it was enacted after the sex offense conviction. The Supreme Court found it did not violate the Constitution because the primary purpose was not to impose a civil and regulatory scheme and not punishment. The Doe analysis first requires the court to determine if the intent of the legislation was to impose punishment. If so, the inquiry ends. The 11th Circuit determined that the statute has a civil purpose. Congress intended to enact a civil regulatory scheme whose purpose was to protect society from sex offenders and to keep law enforcement informed about sex offenders in their jurisdiction.

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Consalvo v. Secretary for Dept. of Corrections is a federal habeas case arising from a death sentence imposed by a Florida state court for burglary and first-degree murder convictions. After the Florida Supreme Court affirmed Consalvo’s conviction and sentence and denied post conviction relief, Consalvo petitioned the federal district court for habeas corpus relief that was denied. This appeal ensued.

The defendant was convicted of armed burglary and murder of his neighbor, who prior to her death, had been pursuing charges against Consalvo for the theft of money from her car. The victim was stabbed following a break in and video recordings showed Consalvo using her ATM card and driving a car similar to the victim’s. According to an inmate who testified at trial, Consalvo made self incriminating statements while in jail. Consalvo claimed in his post conviction motion in the state court that the witnesses recanted their testimony. Consalvo also argued the state attorney violated Brady by withholding exculpatory evidence. He claimed the state did not disclose the identity of the informant in the jail and that the state attorneys purposely placed the informant with Consalvo and supplied him with information about the case to recruit him to act as the state’s agent. Consalvo also claimed the jailhouse witness received favorable treatment and leniency in exchange for his testimony. The state rebutted by presenting testimony from the assistant state attorneys involved in the case who denied ever having met the witness and who denied giving any promises of leniency in exchange for his testimony. The state court found the witness’s recantation testimony was incredible. Instead the state court credited the testimony of state attorneys who refuted the testimony of the recanting witnesses.

The petitioner also claimed his sentencing judge erred in relying on the deposition testimony of a witness that was not presented in open court at the guilt or the penalty phase, relying on Gardner v. Florida, 97 S.Ct. 1197 (1977), where the Supreme Court found a defendant was denied due process of law when a capital sentence was imposed partly on the basis of confidential information in a pre-sentence report which had not been disclosed to the defendant.

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In U.S. v. Martinez-Gonzalez, the defendant appealed the 24 month sentence he received for illegal reentry into the U.S. after having been deported. What led to his deportation was his felony conviction in Alabama for possession of forged instruments – a forged permanent resident card and a forged Social Security card. Following his deportation to Mexico, he entered the U.S. illegally. He then pled guilty to entering the U.S. without permission, in violation of 8 U.S.C. 1326(a).

Under the sentencing guidelines calculation for his offense, he receives an 8 level bump in his offense level if the prior felony conviction is considered an aggravated felony. The definition of aggravated felony (8 U.S.C. §11011(a)(43)) includes an offense “relating to forgery” The main issue raised here was whether Martinez-Gonzalez’ prior conviction for possession of the forged documents was a conviction relating forgery.

Martinez-Gonzalez argued that merely possessing a forged document does not amount to committing a crime relating forgery. He also argued that §11011(a)(43) is ambiguous requiring the application of the rule of lenity to be construed in his favor. The 11th Circuit did not buy in – mainly because four other Circuit Courts have upheld the 8 level increase for possession of false documents, and Martinez-Gonzalez could not cite any cases supporting his position.

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