Wednesday, June 28, 2006

Case Summaries

June 28, 2006 Slip Opinions. One criminal case.

U.S. v. Jeffrey Thomas, No. 05-3264 (E.D. Missouri). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Judge Arnold.

Thomas was indicted on several counts of mail fraud, wire fraud, money laundering, and bank fraud after several people complained to the authorities that he had taken their money but failed to use it as promised on the construction of their homes. A jury acquitted him on one of the mail fraud counts, but found him guilty on the other charges, and sentenced him to 172 months in prison.

Thomas appeals, arguing that a number of assigned errors require reversal. First, he argues that FBI agents violated his Fourth Amendment rights when they seized unopened mail from his rented mailbox. Held: Evidence showed that Thomas’s failure to make the required payments and to retrieve any of his mail for longer than a year is sufficient to establish abandonment. Abandoned property is outside the scope of fourth amendment protection because its owner has forfeited any expectation of privacy to it. U.S. v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997).

Thomas next argues the district court abused its discretion in adjourning his trial for several weeks in the middle of the government’s case when a juror was injured. Held: The precautions taken by the district court precludes the court from finding any abuse of discretion. When faced with several juror emergencies and conflicts, the court consulted with jurors and the parties to come up with a solution that would allow the trial to continue. Before adjournment, the court reminded the jurors that they were bound by the court’s original instructions, that they were not to discuss the case with anybody, and that they should keep an open mind until the case concluded. Additionally, the Fourth Circuit in a similar case decided that the district court acted within its discretion when it took a mid-trial recess of 32 days.

Thomas also argues error in the admission of business record detailing customer calls to a bank, contending that the conversation log was hearsay. Held: No error detected in the admission of the statements. Thomas did not make an objection to most of what was in the conversation log; he objected to the admission of only one portion of it. Even if the objection had been raised with respect to the entire log, it could not have been sustained. Questions and commands generally are not intended assertions, and therefore cannot constitute hearsay.

Lastly, Thomas challenges the sufficiency of the evidence for several of his convictions, all of which were found wanting. Held: Evidence presented at trial was sufficient for the jury to determine that Thomas’s transactions involved proceeds obtained from ongoing fraudulent activities; that he was in financial distress when he entered into a sales agreement with one of the victims for property he knew the victim could not afford, that the purchase price for the house was grossly inflated, and that he knew the victim’s loan application contained several false statements; and the victim’s loan application materials with the UPS envelopes found in Thomas’s car was sufficient evidence for the jury to find Thomas guilty, where it was foreseeable that UPS would be and was used in furtherance of the attempt to commit mail fraud. For the reasons stated, the Eighth Circuit affirms the judgment of the district court.

June 27, 2006 Slip Opinions. Nine criminal cases.

U.S. v. Nasir Jaleel Rahim, a.k.a. Junero Antonio Smith, No. 05-1573 (D. Minnesota). Before Circuit Judges Murphy, Beam, and Colloton. Per Curiam. Unpublished.

Rahim pled guilty to drug and firearm charges and was sentenced as a career offender under § 4B1.1(a) based in part on a prior state felony conviction for auto theft. He urges the court to revisit its holding that auto theft is a crime of violence. The court refuses to do so, stating that only the court sitting en banc may do so. Affirmed.

U.S. v. Rommel Smith, a.k.a. Ro Sleezy, Nos. 05-2124/2126 (D. Nebraska). Before Circuit Judges Bye, Heaney, and Colloton. Opinion by Judge Bye.

Smith appeals his drug conspiracy conviction, arguing 1) the district court erred by improperly instructing the jury; 2) there was insufficient evidence to support a conviction for conspiracy; and 3) his counsel was ineffective. The government appeals the 204-month sentence, arguing the district court erred by 1) not imposing an obstruction of justice enhancement; 2) improperly determining Smith’s criminal history category overstated his criminal history; and 3) conducting an improper § 3553(a) analysis. The Eighth Circuit affirms the conviction but remands for resentencing.

As to Smith’s arguments, the court held: 1) his substantial rights were not affected by the jury instruction and there was no reversible error in the instructions provided. Even if the jury ignored all the evidence regarding powder cocaine, it still could have attributed over 4 kilos of cocaine base to Smith and convicted him on the offense charged. 2) There was ample evidence Smith pooled his resources with other dealers, cooked cocaine base with his co-conspirators, shared drug suppliers, acted as a go-between for a number of drug purchases, bought and sold cocaine base from shared contacts on a regular basis, and received compensation for allowing drug activities to occur at his home, all with a purpose of distributing powder cocaine and cocaine base. Under the totality of the circumstances, the evidence established a single conspiracy to sell cocaine base from a central location – Smith’s home – with changing parties; it did not establish multiple conspiracies. 3) No exceptional circumstances were found to justify consideration of Smith’s ineffective assistance claim on direct appeal.

Concerning the government’s arguments, the court held the district court erred in not considering whether to impose an obstruction of justice enhancement. The district court’s suggestion that Booker required the prosecution to bring a perjury charge against Smith because the enhancement increased Smith’s maximum sentence by a factor not found by the jury was erroneous. The Eighth Circuit held that Booker did not change how the Guidelines are calculated. In determining the advisory Guideline sentence, the district court must rule on all applicable Guidelines departures and adjustment. Application of an obstruction of justice enhancement is not discretionary if the requisite factual findings are made. Accordingly, the court remanded for resentencing without reaching the government’s challenge to the reasonableness of the sentence imposed.

U.S. v. Plancarte-Vazquez, Nos. 05-2286/2287 (N.D. Iowa). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Judge John R. Gibson.

Manuel Plancarte and his son, Isidro Plancarte-Vazquez, appeal their sentences after pleading guilty to conspiracy to distribute meth and possession with intent to distribute meth. The Eighth Circuit affirms Plancarte’s sentence, but vacates Plancarte-Vazquez’s sentence and remands for resentencing.

Plancarte argues that the quantity of drugs attributed to him was clearly erroneous because the government’s main witness, co-conspirator Lori Perez, provided uncertain and inconsistent estimates of the quantities of drugs involved in the conspiracy. The court held that the district court did not err in calculating the amount of drugs attributable to Plancarte. When calculating drug quantity in the context of a narcotics trafficking conspiracy, the sentencing court may consider all transactions known or reasonably foreseeable to the defendant that were made in furtherance of the conspiracy.

Plancarte next argues there was insufficient evidence to warrant the enhancement for being a supervisor or manager of the drug trafficking conspiracy. Lori Perez testified that Plancarte-Vazquez had to get permission from Plancarte to sell drugs to her, that Plancarte would tell her how to conduct her business, and that Plancarte would get upset with his son and cut him off from selling and send him back to Mexico. The court found no clear error with respect to the district court’s role determination and affirms Plancarte’s sentence.

Plancarte-Vazquez challenges the district court’s drug quantity calculation. The Eighth Circuit concluded that the district court committed plain error by reaching a base offense level that was not supported by its drug quantity findings. At sentencing, the district court found Plancarte-Vazquez responsible for at least 10,000 kilos of marijuana equivalent, but then concluded that this amount called for an offense level of 38. However, an offense level of 38 must be supported by a finding of at least 30,000 kilos of marijuana equivalent, while a finding of at least 10,000 kilos would only support a base offense level of 36. Because there is some uncertainty as to the sentence the district court would have imposed if it had applied the correct offense level, the court remanded the case rather than simply correcting the error.

U.S. v. Ty Albert Van Tran, No. 05-2680 (E.D. Arkansas). Before Circuit Judges Murphy, Beam, and Colloton. Per Curiam. Unpublished.

Ty Albert Van Tran pleaded guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of meth and was sentenced to 168 months in prison. Counsel moved to withdraw and filed an Anders brief. Court affirms conviction and sentence without comment.

U.S. v. Mark A. Medearis, No. 05-2991 (W.D. Missouri). Before Circuit Judges Arnold, Lay, and Colloton. Opinion by Judge Arnold.

The government appeals the district court’s sentence of Medearis to five years probation after he pleaded guilty to possession of a firearm by an unlawful user of a controlled substance, possession of an unregistered short-barreled shotgun, and possession of a firearm. The PRESENTENCE INVESTIGATION REPORT calculated the sentencing range as 46-57 months. The district court at sentencing noted the applicable range, but mentioned that many of Medearis’s friends and family members had written the court, contending that Medearis had turned his life around and asking for some form of community alternative to incarceration. The court stated it believed these letters and was convinced that Medearis had been reformed. The court acknowledged the seriousness of Medearis’s offenses, but concluded that incarceration was not necessary to keep Medearis from re-offending.

The government argues that the district court should have given the sentencing guidelines considerable weight when deciding the ultimate sentence that should be imposed. The Eighth Circuit agrees with this argument, since § 3553(a)(4) requires courts to consider the guidelines range when sentencing a defendant. After reviewing the facts of the case, the court concludes that the district court abused its discretion by failing to give the § 3553(a) factors the proper weight, and by not giving proper weight to the seriousness of Medearis’s offenses. The court stated that to impose a sentence of only probation indicates that the district court paid little attention to the seriousness of Medearis’s crimes and what a just punishment for those offenses should be. Finally, the court stated that a sentence of probation fails to meet the requirement that sentences be crafted so as to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." The court concluded that the district court imposed an unreasonable sentence, and vacated the judgment of the district court and remanded for resentencing.

U.S. v. Dale Gaver, No. 05-3725 (D. Nebraska). Before Circuit Judges Colloton, Heaney, and Gruender. Opinion by Judge Colloton.

Gaver appeals the denial of his motion to suppress evidence and his sentence after he conditionally pled guilty to unlawful possession of a firearm by a convicted felon. He claims that police officers violated the Fourth Amendment by failing to knock and announce their presence while serving a warrant to search his residence for controlled substances.

The Eighth Circuit affirms, stating that the recent Supreme Court ruling in Hudson v. Michigan, No. 04-1360, 2006 WL 1640577 (U.S. June 15, 2006), completely disposes of Gaver’s claim. Hudson held that the exclusionary rule does not apply to violations of the knock-and-announce requirement of the Fourth Amendment. Based on this ruling, the court states it need not consider whether the officers acted reasonably by entering without knocking and announcing, because even if there were a violation of the Fourth Amendment, the exclusionary rule would be inapplicable.

Gaver also argues that his sentence was unreasonable because the district court gave the sentencing guidelines controlling weight and did not consider the other factors identified in § 3553(a). The court held that it is evident that the court did consider Gaver’s request for a "downward departure or a deviation" based on his post-offense rehabilitation and other circumstances, and that the court understood its authority to vary from the advisory guidelines, but simply declined to do so. The court held that the sentence of 29 months’ imprisonment was not unreasonable. Affirmed.

U.S. v. Alfonzo Traymayne Lee, No. 05-4124 (D. Nebraska). Before Circuit Judges Arnold and Colloton, and District Judge Bogue. Opinion by Judge Bogue.

Lee was convicted of one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base and one count of using, carrying, or brandishing a firearm during a drug trafficking offense. He raises four arguments on appeal.

First, he argues the evidence was insufficient to support the jury’s conspiracy conviction. He contends that the government’s witnesses were almost all cooperating witnesses testifying about purchases or sales of crack with Lee. He further argues that the evidence against him was circumstantial, and the only physical evidence was a small amount of crack and marijuana recovered from him during his arrest. Held: Sufficient evidence was presented to sustain Lee’s conviction. The evidence revealed that Lee was involved in extensive drug dealing activity. Several of his co-conspirators testified at trial about Lee’s numerous sales and purchases of crack and about his possession of a handgun during the drug transactions.

Second, Lee argues that the district court should have instructed the jury with regard to the charge that he brandished, rather than merely possessed, the firearm. Held: The Supreme Court and the Eighth Circuit have rejected this argument. The question of whether Lee brandished a firearm does not have to be submitted to the jury nor proved beyond a reasonable doubt.

Third, Lee contends that the district court erred in calculating his sentencing range, was not permitted to increase his criminal history category without having his prior convictions submitted to the jury and found beyond a reasonable doubt, and erroneously treated the Guidelines as mandatory, rather than advisory. Held: Under the advisory Guidelines scheme, courts are required to find sentence-enhancing facts only by a preponderance of the evidence. Court found Lee brandished the firearm based on testimony that he struck another member of the conspiracy with a handgun during a drug transaction. Extensive evidence presented at trial about Lee’s drug transactions supported the district court’s drug quantity finding. Several witnesses testified about Lee’s leadership or supervision of at least one other person. Accordingly, there was no error in calculating the amount of drugs attributable to Lee, nor in enhancing his offense level for brandishing a firearm and his role in the offense.

As to Lee’s contention that the district court should have submitted the issue of his criminal history to the jury, the court has observed that the Supreme Court, in Almendarez-Torres, ruled that a prior felony conviction is a sentencing factor for the court, not a fact issue for the jury. The district court was correct in calculating Lee’s criminal history, and did not treat the Guidelines as mandatory.

Lastly, Lee argues the district court gave undue weight to the Guidelines by refusing to depart. Held: The discretionary decision not to grant a downward departure continues to be unreviewable on appeal, and a sentence based on the crack-powder cocaine disparity is not unreasonable. Affirmed in all respects.

U.S. v. Jesus Jimenez Valencia, No. 05-4458 (D. Missouri). Before Chief Judge Loken and Circuit Judges Beam and Arnold. Per Curiam. Unpublished.

Valencia pled guilty to conspiracy to distribute and to possess with intend to distribute in excess of 500 grams of meth mixture. On appeal, he challenges the admission of the DEA Agent’s testimony as inadmissible hearsay. Held: Hearsay evidence is admissible at sentencing, as long as it is comes from a reliable source. Court found the testimony was properly admitted.
Next, he appeals the application of an enhancement for aggravated role in the offense. Held: Valencia recruited a driver, determined the destination of the drugs, directed that he receive the payment, distanced himself from the drugs, and was able to extend credit for one-third of the transaction. No error in finding that Valencia played an organizational role in the conspiracy.
Valencia also appeals the denial of safety-valve relief. Held: Safety-valve relief requires that a defendant not be an organizer, leader, manager, or supervisor in a conspiracy. Valencia failed to satisfy this criterion and is therefore precluded from qualifying for safety-valve relief. Also, district court found that Valencia did not truthfully provide all information and evidence regarding the offense, another reason he did not qualify for safety-valve relief.

Finally, Valencia argues the district court should have sentenced him below the guidelines range. Held: A sentence within the guidelines range is presumed reasonable. Valencia’s sentence was within the guidelines range and was therefore reasonable. Affirmed.

U.S. v. Ray Johnny Kraklio, No. 06-1369 (S.D. Iowa). Before Circuit Judges Wollman, Bright, and Riley. Opinion by Judge Riley.

Kraklio, a federal probationer, appeals the district court’s order modifying his conditions of probation to require him to have his DNA collected as directed by his probation officer, pursuant to the DNA Analysis Backlog Elimination Act of 2000 (DNA Act).

Analysis: The government does not dispute the drawing of blood for purposes of DNA collection is a search subject to Fourth Amendment scrutiny. The question then, is whether the search is reasonable. U.S. v. Knights, 534 U.S. 112, 118 (2001). Every federal circuit considering DNA indexing statutes has upheld the statutes as constitutional under the Fourth Amendment. The only disagreement among the circuits is what analytical approach to use in upholding the statutes. The majority of circuits employ a reasonableness standard, determining whether the search and seizure is reasonable based on the totality of the circumstances surrounding the search and seizure and the nature of the search and seizure itself. The district court in this case upheld the constitutionality of the DNA Act using the reasonableness standard. The Eighth Circuit agrees with this reasoning and employs the Knights reasonableness standard to determine the constitutionality of the DNA Act.

Held: The Third Circuit has applied the Knights analysis and found the DNA Act constitutional. Given probationers’ diminished privacy rights, the minimal intrusion involved in obtaining DNA samples, and the legitimate governmental interest in using DNA as a crime investigating tool, the Eighth Circuit adopted the Third Circuit’s reasoning and held, based on the totality of the circumstances, the collection of DNA under the DNA Act for inclusion in the CODIS database does not constitute an unreasonable search and seizure in violation of the Fourth Amendment. Therefore, the district court’s order modifying Kraklio’s conditions of probation is Affirmed.

June 26, 2006 Slip Opinions. Three criminal cases.

U.S. v. Jan P. Helder, Jr., No. 05-3387 (W.D. Missouri). Before Circuit Judges Arnold and Smith, and District Judge Magnuson. Opinion by Judge Smith.

The government appeals the district court’s grant of judgment of acquittal, arguing that 18 U.S.C. § 2422(b) does not require the intended victim to be an actual minor. Helder was charged with using the Internet to attempt to entice a minor to engage in illegal sexual activity. He pleaded not guilty and the case went to trial. At the conclusion of the government’s evidence, Helder moved for judgment of acquittal. The district court denied the motion, but encouraged Helder to renew the motion at the close of the case. Helder did not put on any evidence and renewed his motion for judgment of acquittal. After taking the motion under advisement, the court submitted the case to the jury, which found Helder guilty. After discharging the jury, the court set aside the jury’s guilty verdict and granted Helder’s motion, holding that the plain reading § 2422(b) requires the government to prove that the individual involved in the communication was under the age of 18.

The Eighth Circuit has not previously decided whether an attempt to entice a minor to engage in illegal sexual activity requires that the intended victim be an actual minor. However, the court looked to prior similar cases for guidance. First, the court has upheld attempt convictions under 18 U.S.C. § 2422(b) where the enticed "minor" was actually an undercover police officer. U.S. v. Patten, 397 F.3d 1100, 1103-04 (8th Cir. 2005). Second, the court has rejected a defendant’s argument that the evidence was insufficient to convict him of attempting to entice a minor because an undercover officer actually posed as the minor. U.S. v. Blazek, 432 F.3d 1104, 1107 (8th Cir. 2005). Additionally, the court was persuaded by the reasoning of other circuits that have upheld convictions for attempted enticement under § 2422(b) even though the intended victim was an undercover police officer, because the defendant believed the victim to be a minor.

Based on the sister circuits’ thorough analysis of the plain meaning of the statute as well as its prior holdings, the Eighth Circuit held that an actual victim is not required for an attempt conviction under § 2422(b). Accordingly, the court reversed and remanded to the district court for sentencing.

U.S. v. Michael James Longoria., No. 05-3741 (E.D. Arkansas). Before Circuit Judges Murphy, Melloy, and Colloton. Per Curiam. Unpublished.

Longoria appeals his 48-month sentence after pleading guilty without a plea agreement to five counts of possession of counterfeit checks. He alleges the district court improperly departed upward and imposed an excessive and unreasonable sentence.

Under § 4A1.3(a) an upward departure may be warranted if "reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes." Section 4A1.3(a)(4)(B) provides that for defendants in criminal history category VI, the court "should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate for the case." Longoria had 41 more criminal history points than the 13 points which trigger category VI status. In departing the district court was guided by § 4A1.3(a)(4)(B) in increasing the offense level and chose to do so using a ratio of 3 points per level, which resulted in a potential advisory range of 70-87 months. It then imposed a sentence of 48-months which was significantly below that range.

The Eighth Circuit held that the district court did not abuse its discretion in departing upward. Courts may depart upward on the ground that even the highest category seriously under-represents the seriousness of the defendant’s criminal history. U.S. v. Shannon, 414 F.3d 921, 923 (8th Cir. 2005). The court held that the district court’s decision to depart based on under-representation of behavior or likelihood of future crime is supported by the § 3553(a) factors. Affirmed.

U.S. v. Wesley W. Pappas, aka Wesley Pantona, No. 05-4373 (D. Nebraska). Before Circuit Judges Murphy, Melloy, and Gruender. Opinion by Judge Melloy.

Pappas appeals the judgment and sentence of the district court following his conditional guilty plea to being a felon in possession of a firearm. He raises three arguments: 1) police lacked probable cause and reasonable suspicion for the traffic stop that led to his arrest; 2) search of his vehicle was improper, and all evidence seized because of the search should have been suppressed; and 3) his sentence was unreasonable based on the § 3553(a) factors.
The Eighth Circuit held that the district court did not clearly err in finding that the police had probable cause for the initial stop and search of Pappas’s person. The police officer had a reasonable belief that Pappas was driving with a suspended license and the search of his person was a lawful search incident to his arrest.

The Court found that the search of Pappas’s vehicle did not violate state law or proper police procedure. An inventory search in Nebraska is lawful if it is done pursuant to standardized criteria or established routine such as removal of a vehicle which is illegally parked, on a pubic roadway blocking traffic, or defective, or due to the unavailability of an eligible driver. The court stated that Pappas’s allegation of police misconduct was only speculation. The police officers stated they prepared the proper inventory form and conducted the inventory search according to proper procedure, but that the form was destroyed before the trial. Pappas’s claim that the search of his engine compartment was unreasonable has previously been rejected by the court.
U.S. v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993).

Pappas’s final argument is that his sentence was unreasonable under the factors outlined in 18 U.S.C. § 3553(a). Pappas had a long criminal history; he had accumulated 17 criminal history points. However, he told the district court the had improved his life and had made real progress in stabilizing his situation. The district court acknowledged that Pappas was headed in a better direction and sentenced him at the low end of the guidelines range. Reviewing the sentence imposed by the district court, the Eighth Circuit finds nothing to indicate the sentence was unreasonable. The court found the district court properly applied the relevant § 3553(a) factors and properly computed the sentence. Affirmed.

Betty J. Farr, Paralegal
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

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