Monday, July 31, 2006

Federal Murder Conviction Reversed on Double Jeopardy Grounds, But Death Sentence Nevertheless Affirmed

United States v. Agofsky, No. 04-41219 (5th Cir. July 28, 2006)

Agofsky killed a fellow inmate at a federal pentitentiary in Beaumont, Texas. He was charged and convicted of murder by a federal prisoner serving a term of life imprisonment (18 U.S.C. §§ 1111, 1118), and premeditated first degree murder (18 U.S.C. § 1111). "The jury found several statutory and non-statutory aggravating factors, including that the murder was especially heinous, cruel, or depraved. After considering a variety of mitigating factors, the jury found that a death sentence was warranted as to each count of conviction."

On appeal, Agofsky argued that his conviction of both murder counts violated the Double Jeopardy Clause because they were for the same offense. Applying the Blockburger elements test, the court agreed. Both offenses share three common elements: "(1) an unlawful killing (2) with malice aforethought and (3) premeditation." Murder by a Federal Prisoner has an additional element: "that the defendant be a federal prisoner serving a life sentence." The government argued that the two offenses have different jurisdictional elements, thus making them different offenses under the Blockburger test. However, the Fifth Circuit held in United States v. Gibson, 820 F.2d 692 (5th Cir. 1987) that "jurisdictional elements do not count for double jeopardy purposes." The court therefore held that "Federal Murder, as charged in this indictment, is the same offense for double jeopardy purposes as Murder by a Federal Prisoner." The court expressed "some concern with the reasoning of Gibson" (apparently there's a circuit split on the issue), but it was nevertheless bound to follow Gibson.

The court therefore vacated Agofsky's convictions on both counts and remanded with instructions for the district court to enter a guilty verdict and death sentence on the count elected by the Government. The court declined to vacate Agofsky's death sentence because the jury made separate recommendations on both counts, and so it was "'clear' that the invalid conviction 'did not lead the district court to impose a harsher sentence' on the surviving count."

The court also rejected Agofsky's claims regarding his sentence, holding that 1) a note sent by the jury during deliberations did not indicate that the death sentence was influenced by an arbitrary factor, 2) there was sufficient evidence to support the jury's finding that Agofsky committed the murder in an "especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim[,]", and 3) "we find no merit in Agofsky's argument that his conviction or sentence for Federal Murder is invalid because the jury may have rendered inconsistent verdicts as between the guilt and punishment phases on that count." The opinion does not elaborate on what that inconsistentcy might have been.

Monday, July 24, 2006

"Immigration Crisis Tests Federal Courts on Southwest Border"

That's the title of this very interesting article from the June 2006 issue of "The Third Branch," the newsletter of the federal courts:

Federal courts along the southwest border are in crisis mode, contending with criminal caseloads that have skyrocketed since the late 1990s. Drug prosecutions, once the primary cause, have not waned but immigration cases have surpassed them and now drive the unprecedented numbers.

Some of the numbers in the article are astonishing. For example:

The average felony caseload (felony cases per authorized judgeship) nationwide is 87. * * * The Southern District of Texas ranks third, with an average of 326. But the district's Laredo division, home to [Judge George] Kazen and Judge Micaela Alvarez (S.D. Tex.), carries 2,800 felony cases - an average of 1,400 per judge.

Magistrate judges often handle initial proceedings in felony cases, in addition to handling from start to finish the many more numerous misdemeanor prosecutions. In the first four months of 2006, the two magistrate judges in Del Rio (in the Western District of Texas) presided over 15,586 cases.

"[M]any judges voice concerns" about the ability of courts to adequately protect defendants' constitutional right in such an atmosphere:

"The increase in our criminal caseload, especially in Las Cruces, has caused us to conduct hearings in a way that we've never had to conduct them before, and in a way that other jurisdictions don't have to," said Chief Judge Martha Vazquez of the District of New Mexico.

"We have . . . up to 90 defendants in a courtroom. Our magistrate judges try very hard to conduct these hearings in a way that is understandable to the defendants. But most of our defendants have a first or second grade education in their native countries. Some of them are not even able to read in their native languages. And so, we explain to them their constitutional rights in a legal system entirely foreign to them," she said.

"You line them up in a courtroom that is intimidating even to American citizens, and we ask them to waive their constitutional rights. It is a difficult atmosphere in which to waive important constitutional rights, and to ask them if they understand their rights. Defendants in other parts of the country do not have to give up critical rights in this atmosphere, only in the border districts because of this exploding caseload," Vazquez said.

Read the whole thing. (You can also watch an 11-minute video that accompanies the print article here.)

Friday, July 21, 2006

FRE 413 Doesn't Require a Convction; Kidnapping Under 18 U.S.C. § 242 Doesn't Require Transportation Across State Lines

United States v. Guidry, No. 05-50977 (5th Cir. July 18, 2006) (corrected op.)

Here is the court's summary of the opinion:

Defendant Dwaun Guidry was charged with depriving Denise Limon of her civil rights by kidnapping (Count One) and with violating her constitutional right to bodily integrity by sexually assaulting her (Count Two), both in violation of 18U.S.C. § 242; carrying a firearm “during and in relation to” the sexual assault of Limon, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three); and conspiring to deprive five other women of their due process right to bodily integrity, in violation of 18 U.S.C. § 241 (Count Four). After trial, the jury found him guilty on all counts. On appeal, Guidry makes five arguments: (1) the district court improperly admitted the testimony of Julie Ristaino accusing Guidry of extrinsic sexual assault offenses of which he was not convicted; (2) the prosecutor made remarks in his closing argument amounting to reversible error; (3) the evidence was insufficient to prove that Guidry conspired to deprive the five victims of their Fourteenth Amendment rights; (4) the evidence was insufficient to prove that Guidry carried a firearm “during and in relation to” the rape of Denise Limon, because Guidry carried a gun in his gunbelt as a matter of course; and (5) the kidnapping enhancement in 18 U.S.C. § 242 cannot be applied to Guidry because he did not transport or attempt to transport Limon across state lines. For the forthcoming reasons, we AFFIRM.

I'll just highlight two things from the opinion:

1) The court "join[s its] sister circuits in holding that, subject to other admissibility considerations, Rule 413 allows the admission of other sexual assaults including those that are the subject of uncharged conduct." Slip op. at 19. Guidry had argued that only sexual assualts resulting in convictions are admissible under FRE 413. The Fifth Circuit had not previously considered the application of this rule.

2) Relying in part on Taylor v. United States, the court holds that the term "kidnap" in 18 U.S.C. § 242 must be defined according to its generic, contemporary, and common meaning. The court rejects Guidry's argument that § 242 incorporates either the common law defintion of kidnapping or the definition found in the federal kidnapping statute (18 U.S.C. § 1201). Thus, "kidnapping" under § 242 can consist of either asportation or confinement, and does not require transportation across state lines.

Thursday, July 20, 2006

Refusal to Consider Fast-Track Disparities Doesn't Make Guideline Sentence Unreasonable

United States v. Aguirre-Villa, No. 05-50978 (5th Cir. July 18, 2006) (per curiam)

In Aguirre-Villa the Fifth Circuit joins a number of other circuits that have addressed the issue, and holds that a district court's refusal to take fast-track disparities into account will not render the resulting sentence unreasonable, notwithstanding § 3553(a)(6)'s command for district courts to consider the need to avoid unwarranted sentencing disparities.

A few districts around the country have "fast-track" programs under which defendants charged with certain offenses (usually immigration offenses) can obtain sentence reductions by agreeing to plead guilty early in the process (and which usually require the waiver of a whole host of other rights, including the right to appeal). The sentence reductions are achieved either by 1) reducing the statutory maximum via charging relief, or 2) granting a guideline departure of up to 4 levels under a §5K3.1-sanctioned early disposition program. However, only a few districts have fast-track programs (mostly southwestern border districts), and there is a great deal of variation from one district to the next in the particulars of each program. There is even intra-district variation: in some districts the fast-track program is only available in certain divisions, and even then one division's fast-track program can be different from another's.

These geographic variations can and do lead to wildly disparate sentences, particularly in illegal reentry cases, based on nothing more than the particular district and division in which defendants are prosecuted. Such a result would seem to run afoul of the statutory mandate for district courts to impose a sentence "sufficient, but not greater than necessary" to comply with, among other things, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]" 18 U.S.C. § 3553(a)(6).

Many illegal reentry defendants have been making this argument in the wake of the Booker decision, and that's the argument that Aguirre made in this case. Aguirre pled guilty to illegal reentry in the Western District of Texas, which had no fast-track program. His guideline range, under U.S.S.G. §2L1.2, was 77 to 96 months. He argued for a lower sentence on the ground that had he been prosecuted in the adjacent District of New Mexico, which did have a fast-track program, his guideline range would only have been 52 to 78 months. The district court rejected Aguirre's argument, and sentenced him to 77 months.

Aguirre challenged the reasonableness of his sentence on appeal, arguing that it "failed to reflect the need to avoid a sentence disparity among defendants convicted in districts with early disposition programs and defendants convicted in districts without such programs." Slip op. at 3.

The court of appeals, following the lead of a number of other circuits, rejected Aguirre's argument:

The refusal to factor in, when sentencing a defendant, the sentencing disparity caused by early disposition programs does not render a sentence unreasonable. Section 3553(a)(6) is but one factor in a list of factors to be considered; moreover, the U.S. Sentencing Commission must have thought the disparity warranted when it authorized early disposition programs without altering § 3553(a)(6).

Slip op. at 4. The court also noted that even if an early-disposition departure had been available to Aguirre, his 77-month sentence would still have fallen within the resulting 52- to 78-month range. The presumption of reasonablness for guideline sentences therefore carried the day, and the court affirmed Aguirre's sentence.

Can this be right? Have Congress and the Sentencing Commision really authorized substantial geographic disparities in a sentencing scheme crafted, in large part, to combat geographical disparities?

Tuesday, July 18, 2006

Notice of Proposed Amendments to Fifth Circuit Rules

Here you can read a "Notice of Proposed Amendments to Fifth Circuit Rules". Written comments on the proposed changes are due no later than August 15, 2006.

There are three proposed changes:

1) Adding language to Rule 8.10 (currently "Time Requirements for Habeas Petitions") to apply the rule to death-sentenced inmates "who seek to challenge their convictions, sentences, or the execution procedures (including but not limited to a suit filed pursuant to 42 U.S.C. § 1983)[.]"

2) Eliminating from Rule 32.2 unnessary language regarding type-volume limitations in cross-appeals.

3) Adding a new Rule 28.7 and adding language to Rules 47.5.3 & 47.5.4 to make Fifth Circuit rules consistent with an amendment to Fed. R. App. P. 32.1 that will take effect on December 1, 2006 (permitting citation to unpublished opinions).

Appeal Waiver in Plea Agreement Did Not Bar Appeal of Conviction; Evidence Insufficient to Support 924(c)(1)(A) Conviction

United States v. Palmer, No. 04-21016 (5th Cir. July 17, 2006).

Palmer pled guilty to possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)), and possession of five or more grams of cocaine base with intent to deliver (21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii)). He appealed, "challenging the sufficiency of the factual bases of his conviction." The court of appeals reversed Palmer's conviction on the gun count and affirmed his conviction on the drug count, holding:

1) The appeal waiver in Palmer's plea agreement did not bar him from appealing his convictions. The "Waiver of Appeal" language specifically waived Palmer's right to appeal his sentence, reserving only the right to appeal a sentence in excess of the statutory maximum or an upward departure that had not been requested by the Government. It also waived his right to collaterally attack his conviction or sentence in a post-conviction proceeding. Palmer argued on appeal that none of the language in the waiver applied to the direct appeal of a conviction. The court agreed: "Given our duty to construe appeal waivers narrowly, we read Palmer's agreement as having preserved his right to challenge his conviction." Slip op. at 7.

2) There was not a sufficient factual basis to support Palmer's conviction of possessing a firearm in furtherance of a drug trafficking crime. Palmer admitted to possessing the Lorcin .380 pistol that police found in his apartment. However, the pistol was unloaded and locked in a safe, all of the ammunition found in the apartment was of a caliber other than .380, and most of the drugs were found elsewhere in the apartment. Furthermore, although Palmer admitted purchasing the pistol for protection, he denied using the gun for drug trafficking. He also explained that he kept the pistol locked in the safe to keep children away from it. Based on Palmer's admissions during the guilty plea colloquy, as well as the other evidence, the court of appeals concluded that his conviction on the 924(c)(1)(A) count was plain error.

3) There was an adequate factual basis for Palmer's conviction of possession of crack with intent to deliver. In his guilty plea colloquy, Palmer denied dealing drugs from his apartment. However, in response to the district court's question about where he was dealing drugs, Palmer responded, "On the streets. And I was using drugs." Although it acknowledged the ambiguity of Palmer's responses to the court's questions, the court nevertheless found "no plain error in the district court's acceptance of these responses - combined with Palmer's possession - as together providing a sufficient factual basis for conviction under subsection 841(a)." Slip op. at 15.

Monday, July 17, 2006

Alien's Prior Arkansas Burglary Conviction Qualifies as "Crime of Violence" Under U.S.S.G. §2L1.2(b)(1)(A)(ii)

United States v. Mendoza-Sanchez, No. 03-40658 (5th Cir. July 14, 2006) (per curiam)

Mendoza pled guilty to illegal reentry, in violation of 8 U.S.C. § 1326. The district court found that his prior Arkansas burglary conviction was for a "crime-of-violence" for purposes of the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). Mendoza challenged that finding on appeal. Utilizing a "common sense approach," the court of appeals holds that Mendoza admitted sufficient facts at his change-of-plea hearing to support a finding that his prior burglary conviction involved the burglary of a "dwelling," thus subjecting him to the 16-level COV enhancement.

Mendoza argued, and the court agreed, that the Arkansas burglary statute underlying his conviction is broader than "burglary of a dwelling" because it applies to structures other than dwellings. Mendoza further argued that the Government could not establish that the prior conviction involved the burglary of a dwelling, as opposed to, say, a business, because neither the charging document nor the judgment identified the type of structure that he burgled. However, the court of appeals held that Mendoza admitted sufficient facts to establish that he was convicted of burglarzing a dwelling, pointing to the following exchange from his change-of-plea hearing in which the district court asked Mendoza whether he had previously been convicted of an aggravated felony:

MR. ANDY GUARDIOLA: Felony burglary is a five-year sentence, your Honor.

THE COURT: Burglary.

THE INTERPRETER: A house. A home.

THE COURT: You went to the house without permission, right? Do you accept that?


Slip op. at 6-7. According to the court, "In the context of this exchange, it is clear to us that the court's question 'you went into the house without permission ' referred back to the interpreter's use of 'house' and 'home' as synonymous. When Mendoza's admission that he entered the home (or dwelling) without permission is added to the allegations of the information, this adequately establishes his conviction of a crime of violence." Id. at 7.

A couple of points: First, it is not clear from the quoted exchange whether Mendoza was admitting to having burglarized a dwelling (as opposed to some other type of structure), or whether he was simply admitting to the fact that he had been convicted of burglary. This is especially so in light of the fact that the exchange occurred through an interpreter, and legal terms, in particular, can present translation difficulties.

Second, the court used a "common sense approach" to arrive at this holding, rather than the traditional Taylor categorical approach. The court doesn't clearly explain how this common-sense approach differs, if at all, from the Taylor categorical approach, nor does it explain why the enumerated-offense prong of the 16-level COV definition would call for a different analysis than the force-element prong. Instead, the court relied on the Fifth Circuit's earlier panel opinion in United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir.) (per curiam), cert. denied, 126 S. Ct. 253 (2005), which itself is arguably contrary to an even earlier panel opinion in United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004) (applying Taylor categorical approach to determine whether Texas offense of criminally negligent homicide was equivalent to enumerated offense of manslaughter), cert. denied, 543 U.S. 1131 (2005). Other cases have applied the Taylor categorical approach to the enumerated-offense prong, without suggesting that the Izaguirre-Flores common-sense approach is any different in substance from the categorical approach. See, e.g., United States v. Torres-Diaz, 438 F.3d 529 (5th Cir.), cert. denied, 126 S. Ct. 1487 (2006). It therefore remains unclear what difference, if any, there is between the two approaches. But to the extent that the common-sense approach allows a broader inquiry than the categorical approach, it could very well run afoul of the due process and Sixth Amendment concerns underlying Taylor and Shepard.

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Thursday, July 13, 2006

Is Suppression of Evidence Still a Remedy for Knock-and-Announce Violations in Federal Court?

Orin Kerr has this very interesting post at his blog, in which he asks the question: "Is the 'Hudson rule' that suppression is not a remedy for knock-and-announce violations applicable in federal court?" He suggests not, on the ground that there is a statutory suppression remedy that provides greater protection that the minimum requirements of the Fourth Amendment.
As you'll recall, the Supreme Court recently held in Hudson v. Michigan that the Fourth Amendment doesn't require suppression of evidence found in a search that follows a knock-and-announce violation. However, Professor Kerr notes that, "It has generally been understood that violations of 18 U.S.C. 3109 can lead to suppression in federal court as a matter of statutory law[,]" based on the Supreme Court's decisions in Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190 (1958), and Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755 (1968). He suggests that because Hudson dealt only with the Fourth Amendment's reasonableness requirement, it left Miller and Sabbath intact with respect to the availability of a statutory suppression remedy.
This is an argument that you may want to consider making if you have a case with evidence obtained by federal agents in violation of section 3109. As they say, read the whole thing.

Wednesday, July 12, 2006

Fifth Circuit Grants En Banc Review in International Money Laundering Case

The Fifth Circuit has granted en banc review in United States v. Cuellar, No. 05-10065 (July 3, 2006 order here; February 22, 2006 panel opinion here).

Cuellar was convicted, at a jury trial, of one count of international money laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i). The panel held, over a dissent, that the Government failed to prove that the transportation of the money was designed to conceal the source, ownership, etc. of the funds, and that Cuellar knew of that design.

In short, Cuellar was caught driving a car to Mexico with $83,000 in cash concealed in a secret compartment. He testified at trial that he didn't know anything about the cash and "was returning the car to Acuna, Mexico at the behest of a shadowy character he identified only as Mr. Morcia."

The court held that there was sufficient evidence to support a finding beyond a reasonable doubt on the first three elements of international money laundering: 1) Cuellar was attempting to transport the cash to Mexico, 2) the jury could infer that the money constituted proceeds of drug trafficking, and 3) Cuellar's behavior was consistent with courier behavior as explained at trial by an expert ICE agent.

However, the court held that the evidence was insufficient as to the fourth and fifth elements of the offense: that "the transportation of the funds must have been designed (in whole or in part) to conceal or disguise the nature, location, source, or control of the proceeds," and that Cuellar knew of that design.
Concealing the money in the hidden compartment was the means employed to [get the cash to Mexico], but the concealment itself was not the "design" of Cuellar's activity, as the statute requires; the concealment was merely ancillary to Cuellar's design.

Taking hidden cash to Mexico is not money laundering unless some further design to conceal can be proved. The statute would prohibit taking drug money to Mexico for the purpose of concealing the fact that it is drug money. The statute does not outlaw concealing drug money for the purpose of taking it to Mexico.
Slip op. at 5. The majority did, however, opine that Cuellar could probably be prosecuted for bulk cash smuggling in violation of 31 U.S.C. § 5332(a) without offending double jeopardy principles.

The dissent would have held that there was sufficient evidence to establish the concealment element "on several levels": 1) Cuellar was involved in a plan whose overall purpose was to "surreptitiously move cash proceeds of drug sales from the United States to Mexico[,]" 2) the plan effectively concealed the kingpin's ownership of the funds, and 3) the cash was literally concealed in the vehicle. According to the dissent, other circuits have found similar facts to constitute sufficient evidence of concealment.