“Role Reduction Under the Federal Sentencing Guidelines”
By Ken Swartz
Florida Defender, Winter 2002

“A Few Basics About Contempt”
By Ken Swartz
Florida Defender, Winter 2003

“Eleventh Circuit Case Law Update and Survey”
By Ken Swartz
Florida Defender, Summer 2008

“Board of Contributors: Justice Department concedes on fair crack cocaine sentencing”
By Ken Swartz
Daily Business Review, August 3, 2011


U.S. v. LAMONS, 532 F.3d 1251(11th Cir. July 5, 2008)

No Confrontation Clause Violation for Evidence Generated by a Machine and Not a Human Being.

The defendant was convicted of disrupting the operations of a commercial flight and arose out of two incidents. In the first, he was the sole airline flight attendant on a Comair flight from Atlanta to Huntsville, Alabama, in which he was convicted of setting a fire to in the lavatory of the airplane while in flight. In the second, as an AirTran attendant, he made threatening phone calls to AirTran just be a flight he was on was supposed to depart. The incidents were tried separately and sentenced together. At trial the government introduced evidence from a compact disc of data collected from telephone calls. The Court held that no Confrontation Clause violation occurred with the admission of this type of evidence because it is generated by a machine, not a human being who can be called as a witness and confronted. Challenges to the reliability of this type of evidence must arise under the authentication requirements of the Rules of Evidence.

No error in admitting 404(b) Evidence of Similar Crime.

The Court also upheld the admission of evidence of the prior incident, pursuant to Fed. R. Evid. 404(b), in which he made a phone call before the flight claiming that everyone on the flight “was going to die.” The Court noted that this prior conviction resembled the fire-setting crime, in that both were designed to target commercial aviation.

U.S. v. HARRISON, 534 F.3d 1371 (11th Cir. July 16, 2008)

Defense of “First-Sale” rejected in trafficking in illicit Microsoft labels.

The defendant challenged his conviction and sentence on two counts of trafficking in illicit labels, in violation of 18 U.S.C. § 2318, specifically for selling Microsoft labels, called certificates of authenticity (“COAs”), that Microsoft packages with software to ensure that a particular copy of Microsoft’s product is authentic and allow the purchaser to a activate a Microsoft program. The defendant obtained stand-alone COAs from various sources and sold them to others, allowing those others to activate pirated copies of Microsoft’s programs. The defendant invoked the “first-sale” doctrine as a defense, which means that a person does not violate copyright law by distributing copies of copyrighted works when he owns those copies. The Court rejected this defense holding that it is not a defense to a prosecution under 18 U.S.C. § 2318 for unauthorized sales of Microsoft authenticating labels. The Court pointed out that Harrison was not charged with copyright infringement. Further, Congress did not incorporate the “first-sale” doctrine into § 2318. Allowing a “first-sale” defense would effectively eliminate restrictions on secondary markets, when Congress’ intent was to eliminate secondary markets.

U.S. v. BENBOW, No. 07-10560 (Aug. 18, 2008)

Reversed for failure to correctly instruct jury in a drug trafficking conspiracy that Defendant conspired to possess or distribute the cocaine in the United States.

This began as an attempt to purchase materials for a dirty bomb and morphed into a cocaine trafficking conspiracy involving a plan to sell large quantities of cocaine in Europe. The Court found fatal error in the district court’s refusal to instruct the jury that, in order to convict the defendant, the government had to prove that he conspired to either possess or distribute the cocaine in the United States. The government actually confessed error as a result of U.S. v. Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), which held that an agreement to traffic in cocaine that did not involve possession or distribution in the United States did not violate American criminal law. The defendant had requested an instruction that the government had to prove a conspiracy to possess or distribute in the United States, not just in Europe. However, the Court rejected a sufficiency of the evidence argument as there was an issue that the cocaine would originate in the United States and be transported to Europe.

U.S. v. MERCER, No. 06-13258 (Aug. 28, 2008)

Motion to suppress the search of defendant’s hotel room denied.

The Court affirmed the denial of a motion to suppress arising out of the warrantless search of the defendant’s motel room. The defendant was arrested at his hotel room at night and taken into custody. After he was taken from the motel, the police obtained consent from motel employees to search the defendant’s motel room and found a firearm and methamphetamine. The defendant moved to suppress the search arguing that he had booked the motel room through noon the following day. The Court of Appeals determined that because of the defendant’s arrest, and his unlikely return to the hotel, control of the room had reverted back to the motel, and the motel employees had the authority to consent to a search of the room.

“Eleventh Circuit Case Law Update and Survey”
By Ken Swartz
Florida Defender, Fall 2008

Excerpt :

U.S. v. SCHWARTZ, 541 F.3d 1331 (11th Cir. Sept. 5, 2008)

Conviction Reversed for a Bruton Violation.

The Court reversed a $30 million fraud conviction because the admission of an affidavit incriminating a defendant, also incriminated his codefendant, in violation of Bruton v. U.S., 391 U.S. 123 (1968). During its case in chief, the prsecution introduced in evidence a defendant’s affidavit which set forth the name of a corporation that was using investor monies to line the personal business coffers of the persons who controlled it. Then, in closing argument, the prosecutor expressly linked a codefendant to this corporation, as the person who controlled the corporation. The Court found that even if the affidavit lacked an incriminatory inference against the co-defendant, the prosecutor’s closing statement made the inference inevitable and a Bruton error occurred. Moreover, the error was not harmless because the affidavit, though repetitive of other testimony, summarized points contained in disparate parts of a lengthy trial, and had “singular credibility,” coming as it did from an alleged participant in the fraud.
No Use Immunity Violation.

As to another defendant, the Court rejected the argument that the government violated his use- immunity agreement by using statements in the grand jury that the defendant gave to a law enforcement agent to obtain his indictment. The Court noted that the use immunity agreement contained a “Kastigar waiver.” A Kastigar waiver means that the defendant waived his right to challenge use of his statements before a grand jury because they were obtained in violation of the Fifth Amendment. The Court inferred that by waiving the Kastigar remedy the defendant meant to waive challenges to the use of his statements before the grand jury. The Court rejected the sufficiency of the evidence challenge of two other defendants. The Court found that the evidence showed that they knowingly participated in fraud conspiracy.

U.S. v. VALLADARES, 544 F.3d 1257 (11th Cir. Oct. 9, 2008)

No Error in Denial of Defendant’s Motion to Continue Medicare Fraud Trial that Began 35 Days after Arraignment.

The Court upheld the conviction and sentence of a defendant convicted of defrauding Medicare by bribing doctors to prescribe medically unnecessary medication. The Court rejected Valladares’ argument that the district court abused its discretion when it denied her request for a continuance of the trial. The trial began 35 days after arraignment. The Court noted that the government had identified all the documents it intended to use.

The “Fraud Achieved Through Bribery” Guidelines Apply.

The Court rejected the argument that the district court erred in using the commercial bribery guideline in U.S.S.G. § 2B4.1 instead of the fraud guideline of § 2B1.1 to determine the base offense level. The Court noted that this case involved “fraud achieved through bribery” rather than “straight bribery” and the district court therefore applied the correct guideline.

Ex Post Facto Argument for Forfeiture Rejected.

The Court rejected the argument that Ex Post Facto principles barred the imposition of forfeiture for the portion of the conspiracy that predated the effective date of one of the statutes of conviction. The Court noted that no Ex Post Facto violation occurs when a conspiracy does not end until after a statute takes effect.

U.S. v. ANTON, No. 07-13124 (11th Cir. Oct. 30, 2008)

Prior Plea of Nolo Contendere was Still a Felony Conviction for Possession of a Firearm.

The Court affirmed a conviction for possession of a firearm by a convicted felon but vacated the sentence and remanded the case for resentencing. The Court rejected a claim that Mr. Anton’s prior conviction was not a felony conviction because it was based on a plea of nolo contendere. The Court noted that Mr. Anton was adjudicated guilty of, and sentenced for, grand theft, which made it a felony conviction.

Issue of What Constitutes a Criminal Conviction is a Question for the Judge and Not the Jury

The Court rejected the claim that the district court had erred in precluding an affirmative defense that Mr. Anton’s civil rights had been restored where the defense was not supported by evidence. The issue was not a jury question.

Sentence Remanded where the Number of Firearms was Decided on Unsubstantiated Hearsay.

The district court clearly erred in determining the number of firearms involved. The government argued that Mr. Anton was responsible for over 300 firearms and a stolen firearm based on documents found during the search of Mr. Anton’s home. However, the documents were not introduced at sentencing and the only evidence as to the number of firearms was unsubstantiated hearsay statements of the confidential informant. There was no evidence introduced to demonstrate that any firearm was stolen.

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