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.

“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.

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).

Guideline Errors Harmful Despite 99-Month Downward Variance; Fifth Circuit Still Likes Pattern “Deliberate Ignorance” Charge

United States v. Roussel, No. 11-30908 (Jan. 16, 2013) (Jolly, Jones, Graves)

Roussel, a New Orleans Police Department Captain and Traffic Division commander, was convicted of conspiracy and 2 counts of wire fraud involving a scheme to defraud a New Orleans-based utilities provider. Roussel’s strategy at trial seemed to be "Yeah, I was there when other people discussed defrauding the company and the related bribery scheme, but I really wasn’t paying attention to what they were saying. It was way over my head, I was bored and busy texting, and I went to the bathroom right when they were finalizing the bribery plans. Basically, I’m on the tapes, but I had no idea what was going on."

The district court included the Fifth Circuit pattern charge on "deliberate ignorance." Roussel appealed, arguing, among other things, that inclusion of the deliberate ignorance charge lowered the required from mens rea and violates Supreme Court precedent. The panel suggests that the deliberate ignorance charge should not have been given, but found that any error was harmless because "there was substantial evidence of Roussel’s actual knowledge of the illegal scheme." The panel bypassed any substantive review of the deliberate ignorance pattern language but suggested that it is consistent with the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) because it conveys the same meaning, even though it uses different words.

With regard to sentencing, the panel affirmed the use of the public official sentencing enhancement as well as the enhancement based on Roussel’s high-level or sensitive position. The panel found the district court clearly erred, however, in finding that more than one bribe occurred for a 2-level enhancement under 2C1.1(b)(1) and in calculating the expected benefit for a 16-level increase under 2C1.1(b)(2). "[T]he district court’s calculation of expected benefit was purely speculative." The court arbitrarily relied on a previous, historically costly hurricane season to predict the benefit. If the court had relied on the hurricane season that actually applied, Roussel would have only received a 12-level enhancement.

The panel found that these sentencing calculation errors were not harmless. The district court had granted a 99-month downward variance, resulting in a 136 month sentence. The correct advisory guideline range, though, was 121-151 months instead of 235-293 months. Even though the given sentence was in the middle of the correct range, the panel could not assume that the court would not have granted a variance from the correct range. On remand, the district court will have a chance to do just that.

Claim That Jury Instructed On Multiple Theories May Have Found Guilt On Invalid One Is Subject to Harmless Error Review

Hedgpeth v. Pulido, No. 07-544 (U.S. Dec. 2, 2008) (per curiam)

The opening paragraph of today's opinion from the Supreme Court sums up the decision tidily:

A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. See Stromberg v. California, 283 U. S. 359 (1931); Yates v. United States, 354 U. S. 298(1957). In this case the Court of Appeals for the Ninth Circuit held that such an error is "structural error," requiring that the conviction be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant. The parties now agree that the Court of Appeals was wrong to categorize this type of error as "structural." They further agree that a reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507 U. S. 619, 623 (1993) (internal quotation marks omitted). We agree as well and so hold.

Thus, a remand for the Ninth Circuit to conduct harmless error review.

Justice Stevens dissented, joined by Justices Souter and Ginsburg. They argued that the decision below should be affirmed because the Ninth Circuit in fact conducted harmless error review, notwithstanding that court's misuse of the term "structural error."

Additional analysis is available at SCOTUSblog and the Volokh Conspiracy.

Jury Unanimity as to Gun Not Required Under 922(g); TSR Condition Requiring Compliance with State Sex Offender Registration Laws OK

United States v. Talbert, No. 06-31233 (5th Cir. Sept. 25, 2006) (Higginbotham, Garza, Benavides)

Although brief, this opinion breaks new ground for the Fifth Circuit on two important issues: 1) whether the felon-in-possession statute, 18 U.S.C. § 922(g), requires jurors to unanimously agree that the defendant possessed a particular gun, and 2) whether a district court may order a defendant to comply with a state sex offender registration scheme as a condition of supervised release.

Gun Unanimity Under § 922(g)
Talbert's indictment alleged that he possessed two guns which were found in his car on the night of his arrest. At trial, the court instructed the jury, over Talbert's objection, that

[i]t is not necessary for the government to prove that the defendant possessed both firearms. It is only necessary that you find that the government has proven beyond a reasonable doubt that the defendant possessed a firearm.

On appeal, Talbert argued that this instruction

improperly allowed conviction even if the jurors were not unanimous as to which gun he actually possessed. This is not just theoretical, he asserts, because defense witnesses at his trial testified that the two guns were left in the vehicle on separate occasions, one days or weeks before the arrest and the other on the day of arrest. Consequently, he asserts, jurors may have disagreed as to which gun he knowingly possessed.

The court rejected Talbert's argument, adopting the reasoning of the First Circuit's decision in United States v. Verrecchia:

1. § 922(g) refers to "any firearm," suggesting that "any firearm" is the element and the particular firearm is the means;
2. the statutory structure and legislative history focus on felon status rather than the number of guns possessed;
3. "Usually, the only issue under § 922(g)(1) is whether the defendant possessed a gun, so there is little risk that jurors will ignore underlying factual detail."; and
4. other courts, including the Fifth Circuit, have held that unanimity on a particular firearm is not required under § 924(c).

Requiring State Sex Offender Registration as a Condition of Supervised Release
"At sentencing, the district court voiced concern about Talbert’s lengthy and serious prior criminal history, particularly his two state convictions for sex-related offenses." After asking Talbert whether he'd ever been required to register as a sex offender under state law, the court stated that it was "reserv[ing] to the probation department the right to order him to do that[.]" The written judgment "included as a 'Special Condition' of supervised release that Talbert 'shall register as a sex offender under state law if required to do so.'"

On appeal, Talbert challenged the condition itself, as well as the district court's delegation to the probation officer. The court rejected both arguments. It construed the written condition as a requirement that Talbert obey the law, which a district court may include as a condition of supervised release. (It left open the question of whether a court can required a defendant to register as a sex offender in the absense of state law requiring such registration.) As for the delegation question,

Presumably whether Talbert is required to register under state law is a mechanical, straightforward question – one the court did not address merely for lack of definitive information about Talbert’s prior sex-related convictions and state law. This, along with the fact that probation officers are often given wide discretion in enforcing conditions of supervised release–indeed, the United States Probation Office is a branch of the federal judiciary and “an investigatory and supervisory arm” of the sentencing court, see United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)–lead us to find no error in with the discretion given here.

We'll leave for another day the question of whether application of a state sex offender registration scheme is as mechanical and straightforward as the court believes, not to mention the troubling separation-of-powers concerns raised by the grant of investigatory and quasi-prosecutorial duties to an agency within the judicial branch.

Whether Specific Unanimity Instruction Is Required When Single 922(g) Count Alleges Multiple Firearms Must Be Determined On Case-By-Case Basis

United States v. Villegas, No. 06-20165 (5th Cir. July 25, 2007) (per curiam) (Jones, King, Davis)

Villegas was charged with being a felon in possession of a firearm, in a count that alleged nine different firearms. At trial, he requested that the court instruct the jury that it must make a unanimous finding as to at least one of the nine firearms. The court denied the instruction, and Villegas was convicted.

Villegas pressed that issue on appeal. The court observed that "[a]lthough the right to a jury trial carries with it a right to a unanimous verdict, absolute factual concurrence is not mandatory and, indeed, would be unworkable[,]" and that "[t]he duty of the court is to determine which facts are necessary to constitute the crime and to require consensus on those facts." Thus, the question of whether unanimity is required as to the factual basis for a conviction is a question that must be answered on a case-by-case basis after consideration of several factors from Richardson v. United States, and United States v. Correa-Ventura. Those factors include:

• "statutory language and construction, legislative intent, historical treatment of the crime by the courts, duplicity concerns with respect to defining the offense, and the likelihood of juror confusion in light of the specific facts of the case"
• "the risk that allowing the jury to avoid addressing specific factual details will cover up disagreement among the jurors about the defendant’s conduct, or that the jury might convict based on evidence that generally paints the defendant in a bad light rather than focusing on the facts of the case"
• "whether defining a crime that allows a jury to convict while disagreeing about means 'risks serious unfairness and lacks support in history or tradition'"

The court held that in this case, the Richardson-Correa-Ventura factors did not require a specific unanimity instruction. First, the text of the statute and its legislative history place the emphasis on the type of person who is prohibited from possessing a firearm, not on the firearm itself. Second, "simultaneous possession of multiple firearms has been treated uniformly as a single offense regardless of the number of weapons involved[,]" thus assauging duplicity concerns. Finally, given the facts of the case, there was little likelihood that the jurors would be confused, that they would disagree about Villegas's possession of a firearm (mitigating any disagreement about a particular firearm), or that they "would ignore underlying factual details and convict on an improper basis."

Although a specific unanimity instruction wasn't required here, the court made a point of saying that "[w]e do not mean to suggest, however, that such an instruction is never required in a § 922(g) case, and we decline to speculate as to which factual scenarios might require such an instruction." Note that the opinion doesn't flesh out the facts of this case in great detail, so there should be ample room to argue for such an instruction in other cases.