Friday, April 18, 2014

5th Circuit Abandons “Equipoise Rule” for Reviewing Sufficiency of Evidence

When examining the sufficiency of evidence supporting a criminal conviction, the Fifth Circuit no longer refers to the “equipoise rule.”  Vargas-Ocampo defines the “equipoise rule” as requiring reversal of a conviction if the evidence construed in favor of the verdict “gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.”  The majority holds that the “equipoise rule” is not helpful in applying the Supreme Court’s standard prescribed in Jackson v. Virginia, 443 U.S. 307, 319 (1979).  Jackson requires a reviewing court to affirm a conviction if, “after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Applying that standard, the Fifth Circuit affirms Vargas-Ocampo’s conviction.  See previous post for a description of the panel’s decision.

Majority: Jones, Stewart, Jolly, Davis, Smith, Clement, Owen, Southwick, Higginson

Concurring in judgment only: Dennis, Prado, Elrod, Haynes, Graves

Judge King elected not to participate.

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Thursday, April 17, 2014

No Prejudice for § 2255 Based on Implausible Testimony that Would Have Appealed But For Counsel’s Deficient Performance

The panel denied the habeas corpus petitions for ineffective assistance of counsel because, even if counsel did not sufficiently consult with the appellants about filing an appeal and had a duty to do so, the appellants did not show any prejudice.  “The record does not support a finding that there is a ‘reasonable probability that Appellants would have timely appealed but for their counsels’ deficient failure to consult[.]”

The appellants (husband and wife) pled guilty to conspiring to commit money laundering and waived their rights to contest their convictions and sentences except for claims of ineffective assistance of counsel.  They were both sentenced to 42 months’ imprisonment (below the advisory guideline range), but the district court allowed the wife to delay her prison term and return to China to care for her minor children until the husband, Bejarano, completed his prison term. 

To show prejudice, the appellants relied on their expression of interest to counsel in appealing and Bejarano’s testimony that he would have appealed.  Evidence of interest in appealing alone, however, is insufficient to establish that a defendant would have instructed his attorney to file an appeal but for the counsel’s deficient performance.  Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).  The district court found Bejarano’s testimony that he would have appealed to be “self-serving” and “implausible in light of the other evidence,” and the appellants did not argue that the district court’s findings were clearly erroneous.  Given that, and that the appellants waited nearly a year after sentencing to file their petitions, the panel found that they failed to show a reasonable probability they would have appealed but for counsels’ deficiency.

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Monday, April 14, 2014

Conviction for Attempted Use of WMD Affirmed Despite Challenges to FISA Searches and “Some Preparations Taken Together” Jury Instruction

United States v. Aldawsari, No. 12-11166 (5th Cir. Jan. 23, 2014) (Reavley, Davis, Higginson)
The panel affirms Aldawsari’s conviction for attempted use of a weapon of mass destruction and sentence of life imprisonment.
Aldawsari appeals the denial of his motion to suppress evidence gathered pursuant to the Foreign Intelligence Surveillance Act (FISA). Under the Foreign Intelligence Surveillance Court of Review (FISCR), FISA searches do not violate the Fourth Amendment so long as they are at least partially motivated by a purpose to “protect the nation against terrorists and espionage threats directed by foreign powers” and are thus not performed with the “sole objective of criminal prosecution.” As a statutory matter, evidence can be collected during a FISA search where protection against terrorist threats is at least a “significant purpose” of the FISA search and admissible in a criminal prosecution.
Aldawsari argues that searches were not validly authorized under 50 U.S.C. § 1805 and § 1824. In particular, Aldawsari claims that the FISC failed to authorize a search upon a showing of probable cause to believe the searches’ target is “an agent of a foreign power” under 50 U.S.C. § 1801.  Aldawsari speculates that the government likely never made the requisite showing of any foreign power’s involvement since no evidence was presented during trial.
The panel, based upon a review of the classified materials in camera, finds that Aldawsari’s inference is incorrect. Moreover, the panel finds that the objective of the searches was not solely the criminal prosecution of the Aldawsari, but protecting the nation against terrorist threats.
Additionally, Aldawsari argues the jury instructions allowed Aldawsari to be convicted even though he had only performed “mere preparations” and never completed a “substantial step” toward committing the offense. The instruction in question states that “some preparations, when taken together with intent, may amount to an attempt.” The panel holds the instruction was proper since it directed the jury to look at the evidence, when “taken as a whole,” describing the preparation-attempt continuum. When read in context, the instruction adequately distinguishes between “mere preparation” and “some preparations” which “may amount to an attempt” so long as such “acts...clearly indicate a willful intent to commit a crime.” See United States v. Mandujana, 499 F.2d 370 (5th Cir. 1974).
Lastly, Aldawsari argues that the district court erred procedurally and substantively in imposing a life sentence. First, Aldawsari claims the district court erred when it applied the § 2K1.4 cross-reference to the guidelines for “attempted murder” because it is unclear whether Aldawsari ever identified a final bombing target. The panel finds there is no authority that requires a finding of a clear targeted victim, location or facility to apply § 2K1.4. See United States v. Polk, 118 F.3d 286, 297-98 (5th Cir. 1997). Second, the panel overrules Aldawsari’s objection that the district court erred when it applied § 3C1.1 adjustment for obstruction of justice based on its finding that Aldawsari feigned mental illness according to a physician’s report. Finally, the panel overrules Aldawsari’s objection that the district court abused its discretion by imposing a substantively unreasonable term of imprisonment.

Thanks to FPD intern Linda Corchado for this post.

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Thursday, April 03, 2014

Section 922(g)(9) “Misdemeanor Crime of Domestic Violence” Only Requires Offensive Touching

A person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm.  A “misdemeanor crime of domestic violence” is defined in part as an offense that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a . . . person with whom the victim shares a child in common.”  18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).  In Castleman, the Court had to define “physical force” and determine whether Castleman’s conviction of “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tennessee Code § 39-13-111(b), made him a prohibited person under § 922(g)(9). 

Castleman successfully argued before the district court and the Sixth Circuit that his conviction was not a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact” with the victim.  The Sixth Circuit held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as that required by the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i), which defines “violent felony” and was addressed by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).  In Johnson, the Court held that “physical force” as used to define a “violent felony” does not mean battery or offensive touching but must mean “violent force.”

The Supreme Court reverses.  The majority holds that “physical force” as used in § 921(a)(33)(A)(ii) has the common-law meaning of physical force, which is essentially battery or offensive touching.  The Court reasons that the common-law definition applies because, unlike the term “physical force” in the ACCA, there is no indication that Congress did not intend to incorporate the common-law term of “physical force” in the definition of misdemeanor crime of domestic violence.  To support this, the majority points out that perpetrators of domestic violence are routinely convicted under assault or battery laws, that the term “domestic violence” does not necessarily connote a substantial degree of force, that it makes sense to group domestic abusers convicted under generic assault or battery offenses with the others listed in § 922(g) who can’t possess guns, and that construing the term otherwise would have rendered § 922(g)(9) inoperable in at least ten states.

The majority then applies this definition of “physical force” to Castleman’s offense and finds that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” offensive touching.   

In his concurrence, Scalia applies the Johnson definition of “physical force,” meaning “force capable of causing physical pain or injury to another person,” but still finds that Castleman’s offense would necessarily involve the use of violent force.  He thinks that the term “physical force” should mean the same thing in § 921(a)(33)(A)(ii) as in § 924(e)(2)(B)(i) and systematically rejects each of the majority’s reasons for distinguishing the terms.

Alito writes separately to voice his disagreement with the Johnson majority, as he believes “physical force” in both statutes should be given the common-law meaning of battery.

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“Willfulness” Instruction that Did Not Include that Good-Faith Belief Could Be Unreasonable or Irrational Was (Harmless) Error

United States v. Montgomery, No. 12-20741 (5th Cir. Mar. 28, 2014) (Jones, Elrod, Haynes)

The Montgomerys were convicted of conspiracy to avoid federal income tax and of filing false tax returns.  On appeal, they argued that the district court incorrectly instructed the jury on the willfulness element of the charged tax offenses.  The panel finds that the court erred but that the error was harmless.

Both parties requested jury instructions on “willfulness” pursuant to Cheek v. United States, 498 U.S. 192 (1991), asking that the jury be instructed in part:

A defendant does not act willfully if he believes in good faith that his actions comply with the law. . . . If you find that the defendant honestly believed that he was not violating the tax laws, even if that belief was unreasonable or irrational, then you should find the defendant not guilty.

Over the Montgomerys’ objection, the district court instructed the jury that it must acquit if the Montgomerys acted in good faith, but it did not say—as both parties had requested—that their beliefs could be “unreasonable or irrational.”  The panel finds that the jury instruction given did not correctly reflect the issues and the law since the jury could acquit the Montgomerys if it found that the Montgomerys “truly believed that they were not obligated to report their income, . . . however objectively unreasonable [that] belief was.”  As given, the instructions suggest that the good faith belief must be objectively reasonable.  While a court need not always instruct the good-faith defense, when it does, it must explain that the good-faith belief need not be objectively reasonable.  The error was harmless, though, given the overwhelming evidence that the Montgomerys intentionally underreported their income.

The Montgomerys also argued that, in sentencing, the district court could have calculated a more accurate tax loss resulting from the offenses because the IRS agent’s figures did not take into account the business expenses associated with underreported gross receipts.  Instead, the IRS agent multiplied the underreported gross receipts for each year by a tax rate of 28% pursuant to U.S.S.G. §2T1.1(c) cmt. n.(A).  The panel affirmed the calculation holding that, under Fifth Circuit precedent (circuit split), unclaimed deductions that could have been legitimately claimed do not get counted against the tax loss on a fraudulent return and that, even if they did, the Montgomerys’ evidence was unreliable to do so since it was based on estimates.

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Tuesday, March 18, 2014

Court’s Consideration of Rehabilitation Needs as a Secondary Factor Permissible under Tapia

United States v. Walker, No. 12-40748 (5th Cir. Feb. 7, 2014) (Davis, Barksdale, Elrod)

The panel affirms a 24-month imprisonment followed by a 24-month order of supervised release for Walker, who violated conditions of an earlier sentence of supervised release, in spite of Walker’s appeal claiming that the sentencing court improperly considered his rehabilitative needs in violation of 18 U.S.C. § 3582(a). See United States v. Garza, 706 F.3d 655 (5th Cir. 2013).

Since Walker did not object to the district court’s reliance on rehabilitation as a sentencing factor, the panel applies the “plain error” standard of review and affirms the sentencing court’s order. The panel upholds its previous interpretation of Tapia, where a consideration of the need for rehabilitation as a “secondary concern” or “additional justification” for a sentence is permissible, unless a defendant’s rehabilitative needs are a “dominant factor” informing the district court’s sentencing decision.

The panel distinguishes the instant case from Garza, where the district court focused “almost exclusively on rehabilitation in crafting” the defendant’s sentence of 24-months imprisonment so that the defendant could enter an appropriate treatment program. There the court stated that defendant should at least be afforded an opportunity to engage in a residential institution drug treatment program after discussing on the record various drug treatment programs available under different sentences. The court made no additional justifications for the sentence imposed.

In the instant case, while the district court took rehabilitation into account (“I think if you have a longer period of time in prison to think about [sic] and perhaps get some counseling...”), that concern was not a dominant factor. Instead, the court only referred to rehabilitation after detailing factors under 18 U.S.C. § 3553(a) that took into account Walker’s multiple violations of supervised release after being given a relatively lenient sentence.

Thanks to FPD intern Linda Corchado for this post.


Monday, March 17, 2014

NM Aggravated Assault with Deadly Weapon Is § 2L1.2 COV because No Realistic Probability of Prosecution for Least Culpable Act Argued on Appeal

Carrasco-Tercero loses his argument that his 1985 New Mexico Aggravated Assault with Deadly Weapon conviction is not a U.S.S.G. § 2L1.2 crime of violence because the panel finds no realistic probability that New Mexico would prosecute someone of the least culpable act criminalized under NMSA § 30-3-2.  The statute defines assault as attempting to commit a battery upon a person; “any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery”; or “use of insulting language toward another.”  Carrasco-Tercero argues that the least culpable act under § 30-3-2 would be using insulting language toward another while holding a deadly weapon and that such a crime would not be a crime of violence under the elements clause (because no element of use of force) or under the enumerated offense of aggravated assault (because broader than the generic definition of aggravated assault).

The panel acknowledges that the statute allows for such prosecution, but declines to reach Carrasco-Tercero’s conclusion—and the conclusion reached by the Sixth Circuit in United States v. Rede-Mendez, 680 F.3d 552 (6th Cir. 2012)—that § 30-3-2 is not categorically a crime of violence since the panel finds there is no “realistic probability” that someone would be prosecuted for that least culpable act.  Carrasco-Tercero did not point to any examples of someone being prosecuted in New Mexico for aggravated assault with a deadly weapon because he was yelling insults while holding a deadly weapon, and the New Mexico’s uniform jury instructions do not provide instructions for the charge of aggravated assault based on using insulting language. 

Since Carrasco-Tercero’s sole contention on appeal concerns the “insulting language” arguments, the panel affirms the judgment.  The panel does not consider whether the alternate means of committing aggravated assault under § 30-3-2 would constitute a crime of violence.  So, there may still be valid arguments against § 30-3-2 being a crime of violence under different theories. 

Thursday, March 13, 2014

AG Holder Supports Proposed 2-Level Decrease to Drug Offense Guidelines

Start incorporating the proposed 2-level decrease into your variance arguments now.  If that proposed amendment becomes official (which it looks like it will), it won’t be official until November 2014.  However, Attorney General Eric Holder voiced his support for the proposed decrease today in his testimony before the U.S. Sentencing Commission, and he also indicated that assistant U.S. attorneys will not oppose variance requests that ask the Court to vary downward in light of the proposed change.

The Commission is accepting comment until March 18, 2014, on its proposed amendments to the Guidelines.

Here are some resources from the U.S. Sentencing Commission:
-          U.S. Sentencing Comm’n, Proposed Amendments to the Sentencing Guidelines 45 (Jan. 17, 2014),
-          U.S. Sentencing Comm’n, News Release, “U.S. Sentencing Commission Seeks Comment on Potential Reduction to Drug Trafficking Sentences” 1 (Jan. 9, 2014),
Some resources regarding the Department of Justice’s position:
-          Horwitz, Sari, Holder Will Call for Reduced Sentences for Low-Level Drug Offenders, Wash. Post (Mar. 13, 2014),
-          Dep’t of Justice, Office of Public Affairs, Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers (Mar. 13, 2014),

Some related resources regarding changes to mandatory minimums:
-          The Smarter Sentencing Act, S. 1410.
-          U.S. Sentencing Comm’n, News Advisory, “Comment of Judge Patti B. Saris on the Senate Judiciary Committee’s Bipartisan Vote to Report the Smarter Sentencing Act” (Jan. 30, 2014),
-          Memorandum from U.S. Att’y Gen. Eric Holder to U.S. Att’ys & Asst. Att’y Gen. for the Crim. Div., Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013), available at

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