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In U.S. v. White, former Commissioner White of Jefferson County, Alabama, was convicted of the federal crime of conspiracy to take a bribe in connection with federal funds. White was also convicted of the substantive federal crime of bribery in violation of 18 U.S.C. § 666. In writing the opinion, Judge Carnes had this comment about the overall integrity of the Jefferson County Commissioners.

‘Kleptocracy’ is a term used to describe ‘a government characterized by rampant greed and corruption.” [Citing the American Heritage Dictionary of the English Language] To that definition dictionaries might add, as a helpful illustration: ‘See, for example, Alabama’s Jefferson County Commission in the period from 1998 to 2008.’ During those years, five members or former members of the commission that governs Alabama’s most populous county committed crimes involving their ‘service’ in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal. We have affirmed the convictions of three others who did. This is the appeal of the fifth one.

First, some background. Jefferson County Alabama had entered into an agreement with the U.S. Environmental Protection Agency following a lawsuit against the county for untreated sewage released into the county’s rivers and streams. The agreement required the county to fix its sewer system at the cost of $3 billion. The county hired engineering firms to do the repair and renovation work. One of Whites responsibilities as Jefferson County Commissioner was to oversee the hiring of the engineering firms that contracted with the county to perform the sewer construction work. One of those engineering firms won lucrative contracts with the county because the firm’s owner bribed White. In exchange for the contracts totaling $1 million, White collected $22,000 in cash from its owner.

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The court of appeals held that the 5-level enhancement for distributing child pornography to a minor requires proof it was intended for an actual child or a fictitious child created by law enforcement. In U.S. v. Fulford, the Defendant was convicted of possessing and distributing child pornography and given a 5 level enhancement under sentencing guidelines section 2G2.2(b)(3). According to the presentence investigation report (PSR), Fulford entered into an on-line chat room with children to whom he distributed child pornography. At sentencing, the district court made a fact finding which showed that Fulford chatted over the internet with a person named “Dawn” who claimed she was a 13 year old female. Because the court found the defendant sent child pornography to Dawn, who he believed to be a minor, it applied the 5 level increase even though the sentencing court did not make a finding about whether Dawn was actually a minor. Fulford objected to this enhancement arguing that the government never proved that Dawn was in fact a minor, as defined by the guidelines, and the enhancement did not apply.

The government did not show that any of the individuals whom he sent images were in fact minors. The government argued that the evidence showed he distributed child pornography to a minor based on the user’s name and purported age. The government also argued that regardless of her actual age and identity, it was sufficient to apply the enhancement if the government can show the defendant thought she was a minor and intended to distribute the child pornographic images to her. At sentencing the government offered testimony from its case agent that an examination of his computer showed that Fulford exchanged images with people who, the agent inferred, were minors. Yet there was no proof any were in fact minors.

Under the definition of a “minor” given under this guidelines enhancement, Dawn would have to be one of the following:

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The issue in Walton v. Attorney General, State of Florida was whether Walton’s second state petition for a writ of habeas corpus was properly filed under the Antiterrorism and Effective Death Penalty Act (AEDPA) so as to toll the one-year limitations period for filing a federal petition for a writ of habeas corpus. Under 28 U.S.C. § 2244, a state court defendant in custody has one year from the date the judgment and sentence becomes final to file a petition for writ of habeas corpus in federal court. The one year limitations period may be tolled by a properly filed application for state court post-conviction or other collateral review. However, an application for post-conviction relief is not properly filed if it is untimely.

Walton was convicted by a Florida court of three murders and sentenced to death. After his convictions and death sentences were affirmed by the Florida Supreme Court, he filed his first application for state collateral review in 1990. On June 30, 2003, the Florida Supreme Court affirmed the denial of Walton’s motion for post-conviction relief and denied his first habeas petition. One week prior, on June 23, 2003, Walton filed a second habeas petition, and on October 3, 2003, the Florida Supreme Court denied it as successive. On September 30, 2004, Walton filed his federal petition for writ of habeas corpus. The federal district court found that Walton’s second state petition was not timely filed so as to toll the federal limitations period. The district court dismissed the petition and the court of appeals affirmed.

A Florida prisoner sentenced to death may file a post conviction relief in a state court trial court, and petition for a writ of habeas corpus in the Florida Supreme Court. But in a death penalty case, all petitions for extraordinary relief, i.e. a habeas petition, must be filed in the Florida Supreme Court simultaneously with the initial brief in the appeal from the denial of a motion for post-conviction relief. Here the defendant did not file his second habeas petition simultaneous with this initial brief in the appeal of the denial of the motion for post-conviction relief. The simultaneous filing requirement is a timing requirement. An untimely state petition is not properly filed and cannot toll the federal limitations period. A post-conviction relief application is not properly filed in state court if it is untimely, and will not operate to toll the one year limitations period for a federal habeas petition.

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The defendants in U.S. v. Augustin, a case known in the Miami area media as the Liberty City Seven case, lost their appeal from convictions for the following offenses:

1. Conspiracy to provide material support to a foreign terrorist organization (Al Qaeda) knowing it to be engaged in terrorist activities;

2. Conspiracy to provide material support (themselves) knowing they would be used in preparation for and in carrying out a violation of 844(f)(1) and (i)(making it a crime to maliciously damage or destroy any property of the United States.); and 3. Conspiracy to destroy by means of explosive a building leased to an agency of the U.S. and with conspiracy to levy was against the U.S.

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A professional sports agent, the defendant in U.S. v. Dominguez was charged and convicted of smuggling 5 Cuban baseball players to the United States, transporting them from Miami to Los Angeles, and then harboring them there until they applied for asylum. Dominguez represented over 100 baseball players, many of whom played for Major League Baseball teams. Some of his clients were Cuban nationals who arrived without official documentation in the United States. According to the government’s theory, he planned to represent them in their baseball contract negotiations and collect a percentage of their earnings.

For his defense, Dominguez invoked the U.S. law known as the Cuban Adjustment Act (CAA) which gives special treatment to Cuban nationals who come to the U.S. and allows Cuban nationals who have no documentation authorizing their presence in the U.S. to remain here without having to prove they are the victim of persecution. The CAA is enforced through the “Wet Foot/ Dry-Foot” policy, which offers the benefits of the CAA to those Cuban nationals who reach U.S. soil (dry feet) while Cubans who are interdicted at sea (wet feet) are repatriated and can not benefit.

Dominguez arranged with his cohort, Medina, to smuggle 5 Cuban baseball players into the U.S., agreeing to give Medina 5% of any Major League Baseball contract the players might sign. The five players were successfully brought in through the Florida Keys. The players were transported to Los Angles where they met with Dominguez and signed agency contracts that included clauses obligating them to pay Medina a percentage of their baseball earnings. Shortly after their arrival, Dominguez arranged for an immigration attorney to process the players through immigration to apply for asylum and parole.

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In U.S. v. Perez, the defendants were charged with a Hobbs Act conspiracy for planning to rob a fictitious cocaine stash house in Miami. The Hobbs Act makes it a federal crime to conspire to commit a robbery that has some affect on interstate commerce. They were also charged with carrying a firearm in connection with the attempted robbery, and defendant Del Monte was charged with possession of a firearm by a convicted felon. In this case, the Informant (CI) tried to convince the defendants to rob a fictional cocaine stash house by explaining how they could pull it off with the cooperation of a disloyal drug courier who would pass on information about the location of the drug stash house so the co-conspirators could steal the drugs. He told the coconspirators that the stash house was guarded by armed guards. They discussed obtaining five guns including a machine gun. They decided to transport the weapons in a separate vehicle. The weapons were placed in a car driven by the CI while the coconspirators followed. When law enforcement stopped the cars, they found the guns in the CI’s car and stocking hats, pepper spray, and knives were found in the car driven by the defendants.

Defendants argued there is no evidence they had constructive possession of the firearms transported by the CI. The appellate court disagreed finding the evidence supports a reasonable conclusion that defendants:
1. had knowledge of the guns being transported to the robbery site in the other car, and
2. had intent that those guns be used by the coconspirators in the robbery of the fictional stash house.
The evidence shows the defendants were aware of the dangerous nature of the operations, i.e. robbing armed guards of 30 kilograms of cocaine and other undercover discussions by the coconspirators.

The appellate court found the evidence was sufficient to prove Del Monte constructively possessed the guns. The evidence required a showing Del Monte had the intention to later exercise dominion and control over the guns, whether personally or through others. In Del Montes’ car were found the stocking hats, which implicated him in the armed robbery, together with the intent of the coconspirators to use guns to overcome the guards in order to carry out the robbery.

Defense witness had the right to remain silent
The codefendants subpoenaed Rojas to a pretrial deposition but Rojas exercised his right to remain silent. The defendant asked the court to compel Rojas to answer questions by defendants counsel. The district court denied the request. The defendant argued the district court should have held a hearing to determine if Rojas had reasonable cause to refuse to answer counsel’s questions. The court found no abuse of discretion
for the district court to find that Rojas could plausibly fear his answers could lead to a perjury charge by the government.

Warrant for electronic surveillence was proper
The defendant moved to suppress all evidence obtained through court ordered electronic surveillance of calls to and from cell phones. The defendants argued that because the government had success in obtaining evidence prior to receiving permission to intercept electronically, the necessity requirement was not met. Even if the government possessed sufficient evidence to prosecute defendant prior to the wire tap, it only had limited knowledge of the full extent of his criminal activities and of the coconspirators activities.

Failure to address the defendant was error and new sentencing ordered
The sentencing allocution for one defendant was error because the district court did not address the defendant directly. The court directed its question about the defendant allocating to the attorney and not the defendant directly. The Court never got a response from the defendant, and the case was remanded for resentencing. The court found the defendant’s substantial rights were affected because there was a chance of a lower sentence under the sentencing guidelines.
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In U.S. v. Doe, the defendant John Doe went to the Miami passport agency office to apply for a passport presenting drivers license, birth certificate and other identifying documents in the name of Laurn Daniel Lettsome. Doe was not Lettsome. When the passport agency official became suspicious, Doe was asked to return with more identification document. He then returned and suspecting fraud, the passport officials located the real Lettsome and discovered he was not the person who had applied for a passport. The defendant was called “John Doe” in this case because the government claimed it did not know his true identity.

Doe was charged with making a false statement in a passport application and two counts of aggravate identity theft. Doe pled guilty to making a false statement in a passport application but went to trial on the aggravated identity theft, claiming that the government failed to prove beyond a reasonable doubt that Doe knew the false identification he was using belonged to a real person. The aggravated identity theft conviction provides for a mandatory two year sentence for possessing an identification of another person.

In the benchmark decision of Flores-Figueroa, the U.S. Supreme Court required the government to show the defendant knew the identification used belonged to another person. The Supreme Court acknowledged there were many ways the government could show this through circumstantial evidence. Following this decision, the 11th Circuit Court of Appeals affirmed an aggravated identity theft conviction where it was shown the defendant had been successful in obtaining a drivers license or passport using the victim’s personal information. There was no need to show the defendant had knowledge of the rigorous verification process.

Here, the appellate court found circumstantial evidence that Doe knew the identification belonged to a real person by Doe’s repeated and successful testing of the authenticity of the victim’s identifying information prior to the crime, and by his using the birth certificate and social security card to obtain drivers license in two jurisdictions – the Virgin Islands and from the state of Florida. Doe also opened a bank account and obtained a credit card in the false name.

Even though the government did not present direct evidence that Doe knew of the verification process to which he subjected Lettsomes’ identifying documentation, the Eleventh Circuit precedent makes clear that it was not required to do so. A rational jury could have inferred based on ordinary human experience that federal and state governments routinely verify the authenticity of the identifying documentation. Also, the passport application say that documents and statements presented are all subjected to verification. Doe’s conduct could be understood to mean that he had unfaltering confidence in his ability to obtain a U.S. passport using Lettsome’s identification.

Evidenced showed Doe showed no trepidation about the possibility that Lettsome’s identifying information (his Virgin Islands D.L. and Florida D.L.) were not genuine. A rational jury could conclude beyond a reasonable doubt that Doe never doubted for a moment that Lettsome identifying information belonged to a real person. Otherwise, the increased scrutiny from an official, on Doe’s first visit to the passport agency would have given Doe great pause about continuing the effort to obtain a passport.
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In Fajardo v. U.S. Attorney General the court of appeals reversed an order of removal. Soon after he entered the U.S. from Cuba, Fajardo was arrested and convicted of false imprisonment, misdemeanor assault and misdemeanor battery as a result of an altercation with his wife. Three years later when Fajardo was returning from a visit abroad, he was stopped at the Miami International Airport and placed in removal proceedings by the Department of Homeland Securities on the ground that his conviction for false imprisonment qualified as a crime involving moral turpitude. The Immigration Judge concluded that the assault and battery convictions were not crimes involving moral turpitude. It did however find the conviction for false imprisonment did constitute a crime of moral turpitude and ordered his removal on that ground.

To determine whether a crime constitutes a conviction of a crime involving moral turpitude, the 11th Circuit Court of appeals and the Board of Immigration Appeals has historically looked to the inherent nature of the offense as defined by the statute, rather than the circumstances surrounding the defendants’ particular conduct. Thus the “focus of the immigration authorities must be on the crime which the alien was convicted, to the exclusion of any other criminal or morally reprehensible acts he may have committed.” This is known as the categorical approach. Stated another way, the categorical approach requires “looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”

However, if the statutory definition of a crime encompasses some conduct that categorically would be ground for removal as well as other conduct that would not, then the record of conviction, that is the charging document, the plea, verdict and the sentence may also be considered. This has been referred to as the modified categorical approach.

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On October 4, 2011, the Eleventh Circuit Court of Appeals vacated U.S. v. Rojas decision. A majority of the judges on the Court have voted to rehear the case en banc. This means that the issue of whether the Fair Sentencing Act of 2010 (FSA) applies to defendants sentenced after the Act but whose offense occurred before the Act will now be resolved by the entire court.

In U.S. v. Rojas the Court held the FSA applies to the defendants convicted of a federal drug crime, who were sentenced after its enactment but who committed their offense prior to August 3, 2010, enactment date. By passing the FSA the court found that Congress intended to restore fairness to Federal cocaine sentencing. The legislation attempted to reduce the disparity between federal criminal penalties for crack cocaine and powder cocaine offenses by lowering the gram – penalty ratio from 100:1 to 18:1. It also raised the drug quantities that triggered mandatory minimums.

Rojas, charged in Miami with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, pled guilty prior to the August 3, 2010 enactment. Because she conspired to distribute 71.8 grams of crack cocaine, she was facing the ten year mandatory minimum. After enactment of the FSA the amount triggering the ten year mandatory minimum was raised from 50 to 280 grams, she then faced a lower mandatory sentence of 5 years under the new law. Because her sentencing took place after the enactment, she wanted the new law to apply to avoid the pre-FSA 10 year mandatory minimum sentence.

In the panel decision, the appellate court ruled that the FSA should apply to those offences that occurred prior to enactment but who are sentenced afterwards. The appellate court rejected the government’s argument that the FSA is prohibited from applying to prior offenses under the Savings Clause unless the statute expressly provides.

Prior to Rojas, there was a contrary decision in U.S. v. Gomes, which held that the FSA is not retroactive to offenses committed prior to the FSA enactment. In Gomes the defendant’s offense took place before the FSA enactment and the sentencing took place prior to enactment. In Rojas the sentencing took place after enactment. Rojas court rejected the language in Gomes as dicta.
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In U.S. v Mckay, the defendant pled guilty to a federal drug crime, charging him with possession with intent to distribute cocaine base (crack cocaine.) His pre-sentence report classified him as a career offender under the sentencing guidelines §4B1.1. McKay qualified as a career offender if he had two prior felony convictions for either: (1) a controlled substance offense or (2) a crime of violence. One of McKay’s was selling a controlled substance. The other was for carrying a concealed weapon, which at the time counted as a crime of violence. After his sentence was imposed, he did not appeal his sentence of 262 months (21 years, 10 months.)

Over two years after his sentence, the Supreme Court decided U.S. v. Begay which held that a D.U.I. conviction is not a “violent felony” under the Armed Career Criminal Act. Following that decision the Eleventh Circuit decided U.S. v. Archer which held that in light of Begay, it would have to find that carrying a concealed weapon is not a crime of violence.

Following the Archer decision, McKay filed a motion to vacate his sentence pursuant to 28 U.S.C. §2255 arguing that pursuant to Begay and Archer, his sentence was incorrectly enhanced. McKay argued that his conviction for carrying a concealed firearm no longer qualified as a crime of violence and should not have been sentenced as a career offender. The court of appeals found that the actual innocence exception does not apply to excuse his default. Under the procedural default rule of §2255, a defendant must raise a challenge to a conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a 2255 motion. McKay’s problem was that he did not raise the issue of whether his conviction for carrying a concealed weapon was a crime of violence in a direct appeal from his sentencing. For that reason, he had procedurally defaulted on his 2255 sentencing claim.

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