Texas Injury to a Child is a Career Offender COV under Modified Categorical Approach

United States v. Nieto, No. 12-50500 (June 27, 2013) (Garza, Southwick, Haynes)

The panel finds that Injury to a Child in violation of Texas Penal Code § 22.04(a) is a “crime of violence” under the U.S.S.G. § 4B1.2(a)(2) residual clause, so Nieto was properly sentenced as a career offender.  The panel used the modified categorical approach to determine whether Nieto’s crime involved conduct that presented a serious potential risk of physical injury to another.  Acknowledging that a prior conviction under § 22.04 does not constitute a “crime of violence” under U.S.S.G. § 2L1.2 because that definition requires force to be an element of the statute of conviction, the panel found that intentionally or knowingly causing a child bodily injury by an act—which is what Nieto’s indictment essentially charged—involves conduct that presents a serious potential risk of injury to another.

The panel also held that the evidence was sufficient to convict the Barrio Azteca defendants on RICO substantive and conspiracy charges as well as conspiracy to possess with intent to distribute controlled substances, and that the district court did not err by “conducting ex parte interviews with the acquiescence of counsel to evaluate intrinsic influence[,]” namely jurors’ anxiety about the case and their safety concerns.  The district court dismissed without objection the one juror who had the extrinsic influence of her husband contacting a friend who then contacted the case officer out of concern for the juror’s safety. 

RICO Sentence for Mail Fraud and Money Laundering Vacated and Remanded for Resentencing Due to Guideline Errors

United States v. Pratt, No. 11-31049 (Aug. 28, 2013) (Higginbotham, Owen, and Graves)

Pratt was found guilty at trial of conspiracy to violate RICO because of her abuse of her political influence and power to further the objectives of a criminal enterprise to illegally funnel state and federal funds and property to members of the conspiracy for their personal benefit.  She appealed her conviction and sentence.  The panel affirmed her conviction but vacated her sentence and remanded for resentencing.

The Government alleged two types of racketeering activity: mail fraud and money laundering.  The district court calculated the sentencing guidelines based on money laundering, when it should have based them on mail fraud.  Pratt did not appeal the use of the money laundering guidelines, though, so she waived that error.  In its use of the money laundering guideline, § 2S1.1, the district court erred by applying a two-level enhancement under § 2B1.1(b)(8)(A) and calculating the loss based on the value of all of the goods and services misappropriated according to § 2B1.1 instead of the value of the laundered funds according to § 2S1.1.  Section 2S1.1 refers to the table in § 2B1.1 to increase the base offense level according to the value of the laundered funds, but that does not mean the instructions and definitions of § 2B1.1 thereby apply to an offense subject to the § 2S1.1 guideline. 

Based on the district court’s miscalculations, it believed the guideline range was 78-97 months when it sentenced Pratt to 87 months.  The correct guideline range, based on the mail fraud guideline, was 70-87 months.  The panel held that the district court’s error was plain and that Pratt’s substantial rights were affected because the court “stated on the record that it was choosing a sentence within the middle of the Guidelines range as the appropriate sentence, indicating that the Guidelines range calculated by the district court was a primary factor in the selection of the 87-months’ sentence . . . .”  Under the correct guideline range, 87 months was the top instead of the middle, so the panel vacated the sentence and remanded.

As for the actual conviction, the panel found that the district court questioned the venire adequately about pretrial publicity.  The potential jurors completed an eight-page screening questionnaire, and the court questioned all potential jurors during voir dire and out of the presence of other potential jurors about their ability to be impartial.  The panel rejected Pratt’s contention that only a trial lawyer can ask sufficiently probing and nuanced questions to uncover bias.  The panel also affirmed the district court’s determination that the Government did not use its peremptory challenges to exclude jurors on the basis of race, since the Government offered other plausible reasons for striking five of the six potential jurors who were black.  Lastly, the panel found that the fourth superseding indictment sufficiently identified the pattern of racketeering activity underlying the conspiracy.

Firearms and Drug Trafficking Convictions Affirmed Over Challenges to Indictment, Juror Dismissal, Instructions, Consent-to-Search Question, and Evidence Sufficiency

United States v. Cooper, No. 11-20711 (Apr. 26, 2013) (Stewart, Davis, Clement)

The panel addressed arguments challenging Cooper’s indictment and trial, ultimately affirming his conviction for a number of drug and firearms offenses.

Indictment Sufficient and Jury Instructions Not a Constructive AmendmentCooper challenged the sufficiency of Counts 2 and 4 of the indictment, which alleged violations of 18 U.S.C. § 924(c) with the caption "Possessing a Firearm in Furtherance of a Drug Trafficking Crime" but the allegations that he "knowingly possessed a firearm . . . during and in relation to a drug trafficking crime." Cooper argued that the allegations of "during and in relation to" do not arise to a violation of § 924(c) and that the indictment improperly combined elements of two different types of conduct proscribed by § 924(c). The panel held that the caption cured any ambiguity of the charged offense conduct and that, viewed practically, the indictment contained all the elements of the offenses charged. Since the indictment was sufficient, the panel also held that the district court’s instructions regarding the possession of a firearm "in furtherance of" a drug trafficking offense did not broaden the bases of conviction beyond the indictment and did not amount to a constructive amendment.

No Abuse of Discretion to Not Dismiss Juror
The panel found that the district court did not abuse its discretion by not striking a juror who responded to a question as to whether the race of the black men who had burgled the juror’s home years ago would impact his treatment of Cooper, who is also black, by saying that he "would try to be impartial."

Affirmed Denial of Lesser-Included-Offense InstructionCooper proposed a lesser-included-offense jury instruction of simple possession for the count that charged him with possession with intent to distribute more than fifty grams of crack cocaine. Given the evidence presented at trial of crack cocaine weighing approximately 42 grams and drug manufacturing and distribution paraphernalia found in Cooper’s house, the panel found "no abuse of discretion in the district court’s holding that no jury could rationally find Cooper guilty of only simple possession."

No Due Process Violation by Improper Government Statements at TrialAt trial, the Government asked a police officer witness whether he had asked Cooper for consent to search his house. Cooper objected that this was an impermissible inquiry into Cooper’s invocation of his Fourth Amendment right not to consent to a search. The Government’s witness never answered the question, so the jury never heard whether Cooper had refused permission for a warrantless search. "Because of the extremely limited impact of the objected-to question on the trial proceedings and the substantiality of the evidence presented," the panel concluded "that the Government’s question did not prejudice Cooper’s substantive rights and was, if erroneous at all, harmless error."

Inoperable Firearms Can Support Possession of Firearms ConvictionsCooper argued that the evidence supporting his convictions for possession of firearms was insufficient because the Government did not introduce any evidence showing that the firearms were actually capable of firing. The panel rejected this argument since the definition of "firearm" includes any weapon that "is designed to or may readily be converted to expel a projectile by the action of an explosive . . . ." The panel found that a rational jury could find, based on the evidence presented, that Cooper possessed firearms as defined by 18 U.S.C. § 921(a)(3).

"If Your Juror Were Writing On Line, Could You Find It?"

That's the title of this very interesting post by Anne Reed at Deliberations, a blog devoted to "law, news, and and thoughts on juries and jury trials." As Reed notes, it's becomming increasingly common for jurors to blog, read blogs, and comment on blogs, both during and after trials. You'd want to be aware of such activity if it was happening in one of your trials, wouldn't you? So how do you find it? Read Reed's post to find out.

While you're there, you might want to check out some of the other posts, as well. Like this one about an article by a federal district judge making the case for jury questionnaires.