Monday, April 13, 2009

Criminal Appellate Jurisdiction and other appetizing decisions

Criminal Appellate Jurisdiction: The deadline for filing notice of appeal in criminal case under Federal Rule of Appellate Procedure 4(b) is not grounded in federal statute and, accordingly, is not jurisdictional -- Government did not forfeit objection to untimely notice of appeal by failing to raise it before district court -- Although rule permitted district court, upon finding of excusable neglect or good cause, to extend time for defendant to file notice of appeal by no more than 30 days from original deadline, district court was not permitted to grant untimely motion which was filed after expiration of extended period
Reported at 21 Fla. L. Weekly Fed. C1675a

Jury Selection and Peremptory challenges -- If all seated jurors are qualified and unbiased, Due Process Clause does not require automatic reversal of a defendant's conviction because a state trial court erroneously denied the defendant's peremptory challenge to the seating of a juror -- Right to exercise peremptory challenges in state court is determined by state law, and state law determines consequences of an erroneous denial of such a challenge -- Court has no cause to reverse state supreme court's determination that, under circumstances, trial court's error did not warrant reversal of defendant's conviction
Reported at 21 Fla. L. Weekly Fed. S725a

Criminal law -- Indictment -- Defects -- Failure to charge offense -- Indictment did not fail to charge an offense for three counts of laundering property represented to be proceeds from a specified unlawful activity, and presented no Fifth Amendment violation, where indictment included the word “intentionally” and specific references to statutory provisions which described different forms of intent required to violate money laundering statute -- Combination of statutory citation and reference to essential element discussed in that statutory subsection served as reasonable basis for inferring that grand jury found that defendants committed money laundering with intents described in statute -- Constructive amendment -- District court's jury instructions did not constructively amend indictment where jury charge did not expand basis for conviction -- It was permissible to indict in the conjunctive by charging defendants with violation of multiple subsections, but charge jury in the disjunctive by stating that defendants could be found guilty if they violated either of those subsections -- Evidence was sufficient to support jury's verdict for money laundering under Section 1956(a)(3) -- Conspiracy to launder money -- Evidence was sufficient to sustain conviction for conspiracy to launder money where there was sufficient evidence for a reasonable juror to find that defendant entered into a conspiracy to launder drug proceeds with intent of both avoiding transaction reporting requirements and concealing or disguising drug proceeds and there was ample proof from which reasonable juror could find that conspiracy continued into relevant 5-year statute of limitations period -- Material variance -- There was no material variance between indictment which charged conspiracy to launder money and proof at trial on that count where substantial evidence supported jury's finding of single conspiracy based on existence of common goal of avoiding transaction reporting requirements and disguising drug proceeds, nature of underlying scheme, and overlap of participants -- Forfeiture -- No error in ordering forfeiture of inventories of defendant companies and company's bank account which facilitated the money laundering offenses -- Error to order forfeiture of company's bank account for which there was no evidence linking the account to reporting and laundering offenses -- Excessive fines -- Remand of previously unaddressed issue of whether forfeiture of two companies' inventories and bank accounts constituted excessive fine under Eighth Amendment is appropriate, where there is no clear factual basis for evaluating issue -- District court did not justify imposition of joint liability on defendants for personal money judgments on counts of money laundering and failure to follow reporting requirements, neither of which are types of offenses for which joint and several liability would be appropriate -- Forfeiture of substituted assets -- No error in ordering forfeiture of defendant's real property as substitute asset for personal money judgment on conspiracy to launder money charge
Reported at 21 Fla. L. Weekly Fed. C1659a

Criminal law -- Sex offenders -- Registration -- Error to dismiss indictment charging failure to register as required by Sex Offender Registration and Notification Act on ground that SORNA exceeded Congress's authority under Commerce Clause
Reported at 21 Fla. L. Weekly Fed. C1678a

Criminal law -- Attempted voluntary manslaughter -- Attempted robbery with firearm -- Charges arising out of incident in which one of two cab passengers attempted to rob driver and, in the process, shot driver -- Evidence -- Hearsay -- Exceptions -- Statements against penal interest -- Error to exclude statements made by uncharged passenger during police interview in which passenger admitted that he had had a gun matching that used to shoot cab driver in his pocket earlier on the day of the incident and was telling people, “I'm fixin' to rob somebody,” stated that he had possession of the gun used in the shooting after the incident and had sold it to a stranger two days later, admitted to changing clothes immediately after the shooting because he knew police would be looking for the shooter, and told officer that he did not talk to cab driver at any time during cab ride -- Defendant's request to admit passenger's statements was properly limited to only those statements that were self-inculpatory, although entire statement contained portions that were self-exculpatory but inculpated defendant -- Requirements for admissibility were met where passenger was unavailable to testify at trial; statements were relevant to misidentification defense, given driver's testimony that the man who shot him did not speak at all during cab ride while he and the other man chatted during the ride; proffered evidence tended to inculpate passenger and exculpate defendant; and self-inculpatory statements were sufficiently corroborated -- New trial required -- Jury instructions -- Principals -- Trial court erred in instructing jury on principals where evidence did not show that defendant acted in concert with anyone to commit the crimes with which he was charged, but instead showed that two men initially got into cab with intent of committing petit theft by riding without paying, one man got out and fled when destination was reached, in keeping with plan, and second man remained in cab, shot, and attempted to rob driver -- On remand, should state again seek principals instruction, trial court must ensure that instruction is supported by evidence actually presented at trial before giving instruction
Reported at 34 Fla. L. Weekly D664a

Criminal law -- Robbery with weapon -- Double jeopardy -- Separate convictions for robbery of two different employees of store violated prohibition against double jeopardy where defendant took store's money from one employee but did not make a separate and distinct taking of store's money from the other employee -- Defendant was properly convicted of robbery of vehicle from a third employee -- Violation of constitutional prohibition against double jeopardy is fundamental error that can be raised for first time on appeal
Reported at 34 Fla. L. Weekly D668a

Criminal law -- Search and seizure -- Vehicle stop -- Officer with Florida Fish and Wildlife Conservation Commission did not have authority to stop defendant in wildlife management area for a resource inspection in the absence of a reasonable suspicion that defendant was engaged in criminal activity or violating traffic laws -- Trial court erred in concluding that no reasonable suspicion of unlawful activity was required for stop of vehicle in wildlife management area
Reported at 34 Fla. L. Weekly D670a

Criminal law -- Felon in possession of firearm -- Speedy trial -- Interstate Agreement on Detainers -- District court did not abuse its discretion when it dismissed first indictment without prejudice for violation of Speedy Trial Act, after considering three factors pertinent to determining whether dismissal should be with or without prejudice -- District court did not err in denying motions to dismiss for violation of Sixth Amendment right to speedy trial -- No error in denying motion to dismiss indictment under Rule 48(b), which provides that dismissal is mandatory only if defendant's constitutional rights have been violated -- No error in denying motion to dismiss which was based on argument that due process rights were violated by government's retention of defendant in federal custody after first indictment had been dismissed without prejudice, rather than returning defendant to state custody -- Interstate Agreement on Detainers applied where detainer was lodged against defendant before his first indictment while he was in state custody -- Dismissal of first indictment without prejudice did not produce final resolution of charges against defendant and, accordingly, original detainer remained in effect -- Although government technically violated speedy trial clause of IAD when it failed to return defendant to state custody after dismissal of first indictment and defendant remained in receiving state more than 120 days after his arrival, violation of speedy trial clause of Interstate Agreement on Detainers Act can be harmless when United States is the receiving state -- Error was harmless in this case -- Search and seizure -- No error in denying motion to suppress evidence discovered after officers effected valid stop of vehicle in which defendant was passenger -- Evidence -- Statements of defendant were properly admitted where defendant knowingly, voluntarily, and intelligently waived right to remain silent -- Invocation of right to counsel on state charges did not apply to federal charges against defendant -- Evidence was sufficient to support conviction -- Sentencing -- Error to fail to credit defendant with time spent in state custody based on his conviction for obstruction of justice where conduct related to state conviction was used to enhance defendant's federal sentence -- No error in refusing to reduce offense level based on acceptance of responsibility -- No error in calculating criminal history category
Reported at 21 Fla. L. Weekly Fed. C1654a

Criminal law -- Forfeiture -- Thirty-day period prescribed in 21 U.S.C. section 853 for filing of petition for ancillary hearing by third party asserting a legal interest in property subject to forfeiture can be triggered by notice of a preliminary order of forfeiture entered before sentencing -- Section 853 does not conflict with Rule of Criminal Procedure 32.2 -- Once preliminary order of forfeiture is entered, whether before or at the time criminal judgment is entered, the government is authorized to commence proceedings governing third-party rights and must publish notice of that order and its intent to dispose of the property -- Third party then has thirty days from receipt of notice of preliminary forfeiture order or the final publication of notice of the latter, whichever is earlier, within which to petition the court for an ancillary hearing -- Failure to file petition within thirty-day time period extinguishes third party's interests -- District court erred in denying government's motion to dismiss petition filed by third party within thirty days of criminal judgment, but more than thirty days after petitioner received proper written notice of preliminary order of forfeiture -- Government did not waive timeliness issue by not asserting it in motion for continuance of ancillary hearing -- Government's motion to dismiss was not untimely
Reported at 21 Fla. L. Weekly Fed. C1651a

Criminal law -- Indecent exposure -- Public lewdness -- Convictions for violation of state law while in national wildlife refuge, an area under jurisdiction of the United States -- Defendant affirmatively waived his right to challenge charging document on appeal where he encouraged the district court to proceed to trial on allegedly faulty count -- Evidence -- Prior crimes, wrongs, or bad acts -- No abuse of discretion in admitting evidence of defendant's prior sexual acts in the wildlife refuge -- Evidence was elicited on cross-examination of defendant and was plainly relevant to rebut defendant's claims on direct examination, bore directly on predisposition and an entrapment defense, and was not so unfairly prejudicial as to outweigh its probative value
Reported at 21 Fla. L. Weekly Fed. C1647b

Criminal law -- Plea agreement -- Violation by government -- Appeals -- Standard of review -- A forfeited claim that the government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b), Federal Rules of Criminal Procedure
Reported at 21 Fla. L. Weekly Fed. S721a

Criminal law -- Burglary of conveyance with assault or battery -- Sentencing -- Error to impose ten-year mandatory minimum sentence for use of firearm during commission of offense, rather than three-year mandatory minimum sentence, where burglary of conveyance with assault or battery was not one of offenses enumerated in statute calling for imposition of ten-year minimum mandatory
Reported at 34 Fla. L. Weekly D697a

Criminal law -- Extortion -- Prosecutions under Hobbs Act for extortion and Travel Act for traveling from Germany to the United States to carry out extortion -- Jury instructions -- No error in giving pattern instruction on Hobbs Act, which included in definition of extortion the wrongful use of actual or threatened force, violence “or” fear and stated that “fear” included “fear of economic loss as well as fear of physical violence” -- Indictment charged defendant with extortion under theories of physical violence and economic loss -- Fact that government, in its opening statement to jury, took the position that extortion was based on victims' fear of physical violence, not fear of economic loss, not basis for relief -- Evidence -- Hearsay -- Defendant not entitled to relief on claim that rights under Confrontation Clause were violated when district court admitted evidence of out-of-court statements made by defendant, other witnesses, and co-conspirator -- No abuse of discretion in denying motion for new trial on basis of newly discovered evidence in form of foreign court judgment against victim and circuit court order denying victim's motions for summary judgment in civil litigation pending in that court -- Although defendant contended that these court rulings were relevant to issue of his state of mind, and thus his intent, during time he allegedly conspired to commit Hobbs Act offense, court rulings had not yet issued at that time and, accordingly, could not have influenced defendant
Reported at 21 Fla. L. Weekly Fed. C1696a

Criminal law -- Possession with intent to distribute crack cocaine -- Sentencing -- Where appellate court previously remanded to district court for compliance with statute requiring district court to state reasons for giving defendant a life sentence and to explain why the sentence was appropriate, district court complied with that limited mandate by giving reasons for sentencing, including defendant's failure to take responsibility for his actions, lengthy criminal history, need to promote respect for law, deterrence, and need to protect public
Reported at 21 Fla. L. Weekly Fed. C1684a

Criminal law -- Search and seizure -- Vehicle stop -- Speeding -- Defendant was lawfully stopped for speeding -- Troopers did not unlawfully detain defendant beyond time allowed by law where less than thirty minutes elapsed between initial stop and completion of vehicle search, and computer check of defendant's license had not yet been completed -- Arrest for knowingly driving with a suspended license was supported by probable cause where trooper observed defendant driving with suspended license -- Evidence that defendant knew his license was suspended was not required to establish probable cause for arrest -- Incident to arrest -- Search of defendant's cell phone was not a valid search incident to arrest where search officer was rummaging for information related to odor of marijuana emanating from vehicle, rather than seeking to provide for officer safety or to preserve evidence related to defendant's driving with a suspended license -- Accordingly, photo of a “grow house” obtained pursuant to search of cell phone photo album directly led to and tainted resulting search of curtilage of residence listed on defendant's driver's license -- Residence -- Defendant's Fourth Amendment rights were violated when troopers searched curtilage of residence without a warrant -- Government failed to show that troopers approached residence just as would be expected of any private citizen such as mail deliverer or salesperson where one of troopers jumped the fence and unlocked electronic driveway gate through which other troopers proceeded -- Consent -- Government failed to satisfy its burden of establishing that taint from unlawful search of curtilage was sufficiently dissipated from defendant's subsequent consent to search of residence and, therefore, consent did not excuse warrantless full-scale search of residence and trailer parked behind home and within curtilage -- Evidence seized during search should be suppressed
Reported at 21 Fla. L. Weekly Fed. D561a

Criminal law -- Using minors to engage in sexually explicit conduct outside United States for purpose of producing visual depictions and transporting images to U.S. -- Sentencing -- Government failed to demonstrate that sentence imposed, which government contended was too lenient, was not within borders of reasonable sentences under circumstances of instant case
Reported at 21 Fla. L. Weekly Fed. C1685a

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