Monday, July 17, 2006

Case Summaries

July 10, 2006, Slip Opinions. Three criminal cases.

U.S. v. Franklin Howard Rorebeck aka Frank White, No. 05-3407, (D. Nebraska). Before Circuit Judges Wollman, Beam, and Benton. Opinion by Judge Beam. Per Curiam. Unpublished.

Rorebeck pleaded guilty to conspiring to distribute methamphetamine and was received 210 months in prison and five years supervised release. Rorebeck appealed arguing that the District Court relied on "Rorebeck’s overstated criminal history" in denying a downward departure from the advisory Guidelines range. Counsel filed an Anders appeal brief.

The Eighth Circuit held that the record does not reflect an unconstitutional motive on the District Court’s part and is therefore generally unreviewable. U.S. v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005); U.S. v. Booker, 543 U.S. 220 (2005); and U.S. v. Dabney, 367 F.3d 1040, 1044 (8th Cir. 2004).

AFFIRMED.

U.S. v. Quentin C. Adams, No. 05-2760, (W.D. Missouri). Before Circuit Judges Riley, Magill, and Guender.

Per Curiam. Unpublished.

After a jury trial, Adams was found guilty of one count of conspiring to distribute more than 50 grams of cocain base, two counts of possession with intent to distribute more than 5 grams of cocaine base, and one count of aiding and abetting the distribution of cocaine base. Adams was sentenced to a total of life imprisonment and 8 years supervised release.
Counsel filed an Anders brief claiming abuse of discretion by the District Court because the court allowed evidence of Adams’ 2000 Missouri conviction for second-degree drug trafficking under Federal Rules of Evidence 404(B). Counsel argued that the 2000 conviction was "too remote in time from the instant offense. Counsel also moved to withdraw.
The Eighth Circuit held that abuse of discretion did not occur. U.S. v. Love, 419 F.3d 825,828 (8th Cir. 2005).

Adams filed a pro se supplemental brief arguing insufficient evidence to support any of his convictions.

The Eighth Circuit held that the evidence is sufficient. U.S. v. White, 241 F.3d 1015, 1021-22 (8th Cir. 2001); U.S. v. Rodgers, 18 f.3d 1425, 1429 (8th Cir. 1994); U.S. v. Ellefson, 419 F.3d 859, 863 (8th Cir. 2005).

AFFIRMED.

U.S. v. Sitha Savatdy, No. 05-3375, (D. S. Dakota). Before Circuit Judges Wollman, Beam, and Benton. Opinion by Judge Beam.

PUBLISHED.

After a lengthy investigation into methamphetamine distribution, Savatdy, and three co-conspirators, Valadez, Khaoone and Amphavannasouk were indicted for one count of conspiring to distribute 500 grams or more of methamphetamine. A fifth co-conspirator, Ed, who had already been convicted and sentenced (168 months) for conspiracy to possess with intent to distribute methamphetamine, testified against the other four members of the group.
Savatdy and three co-conspirators were convicted after a jury trial. Savatdy subsequently appeals this conviction, based upon these two issues:

1) whether there was sufficient evidence to support the conspiracy conviction
2) whether the district court erred in refusing to suppress post-Miranda statements made by Savatdy.

At the time of his arrest, Savatdy participated in a videotaped interrogation. It is unclear if Savatdy waived his Miranda rights. Savatdy did indicate his understanding of these rights, but neither signed nor initialed any document indicating that he understood his rights, or waived them. The evidence against Savatdy consisted mostly of "Ed’s testimony and Savatdy’s own statements. "Ed" was Savatdy’s connection to his co-conspirators.
The Eighth Circuit found that in order to prove that Savatdy conspired to distribute methamphetamine, the government must prove the following, U.S. v. Alexander:

1) that there was an agreement to distribute methamphetamine
2) that Savatdy knew of the conspiracy
3) that Savatdy intentionally joined the conspiracy

Following the verdict, the District Court concluded that the jury must have found "Ed’s testimony to be truthful", because the was limited evidence to otherwise support only a conspiracy among the three defendants on trial."

Conviction Affirmed.

The Eighth Circuit reviews for clear error and legal conclusions de novo the District Court’s denial of Savatdy’s motion to suppress evidence. Both the District Court and the Eighth Circuit reviewed the videotaped interrogation in light of Miranda and decided that Savatdy "knowingly, voluntarily and intelligently waived his Miranda rights, and his statements during the interview were voluntary."

AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

July 7, 2006 Slip Opinions. Two criminal cases.

U.S. v. Robert McFarland, No. 05-4061 (D. Nebraska). Before Circuit Judges Smith, Heaney, and Gruender. Per Curiam. Unpublished.

Robert McFarland was involved in a scheme to defraud financial institutions by cashing checks drawn on fictitious accounts. To further the conspiracy, he obtained a driver’s license using the name of a co-conspirator’s minor son. Another co-conspirator then wrote a check from a fictitious account with McFarland’s alias as the payee. McFarland then cashed the check using his false identification.

He was indicted on one count of conspiracy to commit bank fraud (18 U.S.C. § 1344) and one count of aggravated identity theft (18 U.S.C. § 1028A). He agreed to plead guilty to the conspiracy offense and cooperate against his co-conspirators. The aggravated identity theft charge, which would have carried an additional 24-month mandatory consecutive prison term, was dismissed. McFarland was sentenced to 18 months in prison. He appeals his sentence, arguing that the district court erred by refusing to grant him a downward departure and that the sentence was unreasonable.

McFarland contends that the district court erred in not imposing a lesser sentence but the Eighth Circuit finds no error. He had a lengthy and consistent criminal history which stretched back to when he was only nine years old. While some of his convictions were for minor offenses, others included assault, theft, receiving stolen property, and forgery. Given his criminal history, his argument that he was entitled to a sentence below the guidelines range was without merit. The court noted that the district court clearly recognized its authority to depart but chose not to and its discretionary decision is unreviewable.

McFarland next asserts that his sentence is unreasonable in light of the § 3553(a) sentencing factors. However, a sentence is presumed reasonable when the district court properly considers the defendant’s circumstances, the § 3553(a) factors, and the advisory guidelines range when determining the sentence. U.S. v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006). A sentence within the correctly calculated guidelines range is presumptively reasonable. U.S. v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2006). McFarland's guideline range was 18-24 months and he was sentenced to 18 months in prison. Therefore, the court finds no error. Affirmed.

U.S. v. David S. Detweiler, No. 06-1475 (D. Nebraska). Before Circuit Judges Bye, Lay, and Riley. Opinion by Judge Riley.

Detweiler appeals his conviction for conspiracy to distribute and possess with intent to distribute 500 or more grams of meth. He claims that the evidence was insufficient to prove one large conspiracy, and that since there was no single conspiracy involving 500 grams or more of meth, the jury’s drug quantity finding was unsupported by the evidence.

The Eighth Circuit concludes that there was sufficient evidence to prove Detweiler knowingly participated in a conspiracy to distribute meth. He repeatedly purchased and sold meth to regular customers and made one-time sales to others. Some of those customers sold meth to others. He occasionally acquired drugs on credit and at times provided drugs to others on credit. The evidence showed an agreement to distribute meth involving the same individuals in the same locations throughout the time period, thus demonstrating a single, large conspiracy composed of several individuals in which Detweiler was a consistent member.

The court held that the jury properly determined the conspiracy involved 500 grams or more of meth. Detweiler purchased meth for resale on an average of once ounce, several times a week, for a period of about four months. The evidence demonstrated the conspiracy involved 500 grams or more of methamphetamine. Affirmed.

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

July 5, 2006 Slip Opinions. Two criminal cases.

U.S. v. Ronnie C. Gaines, No. 04-1103 (W.D. Missouri). Before Circuit Judges Melloy, Lay, and Colloton. Per Curiam. Unpublished.

Gaines was charged with two counts of possession of a controlled substance with intent to distribute and two counts of assaulting law enforcement officers. He challenges the district court’s denial of is motion to withdraw his guilty plea, arguing that he is entitled to a new sentencing hearing.

Prior to sentencing, defense counsel informed Gaines that the base offense level of 26 contemplated in his plea agreement did not take into account his prior convictions and several enhancements, and counsel moved to withdraw from representing Gaines. Gaines then sought to withdraw his guilty plea and proceed to trial, arguing that his counsel had not properly advised him of the agreement’s contents. He asserted that the allegations in the indictment were not true, and he was innocent. At a hearing, the district court found no fair and just reason to withdraw the guilty plea, denied the motion, and sentenced Gaines to 210 months in prison.
Gaines’s current counsel moved to withdraw and filed an Anders brief, arguing abuse of discretion in the denial of Gaines’s motion to withdraw his plea. Gaines filed a supplemental pro se brief arguing that all three of his attorneys had provided ineffective assistance of counsel, and that the government breached his plea agreement by failing to recommend a three-level reduction for acceptance of responsibility. The Eighth Circuit denied counsel’s motion to withdraw, and requested supplemental briefs from the parties addressing the claim that the government breached the plea agreement and the reasonableness of the sentence in light of Booker.

Held: The district court did not abuse its discretion in denying Gaines’s motion to withdraw his guilty plea as Gaines failed to show a fair and just reason for doing so. The court found that Gaines was fully apprised that he could not withdraw his plea if he disliked the sentence to be imposed, and the he was not prejudiced by any failure of his counsel at his plea hearing.
The court was not persuaded by Gaines’s argument that he is entitled to resentencing. The court found that Gaines waived this argument because he failed to object at the time the government recommended a two-level reduction for acceptance of responsibility rather than the three-level reduction set out in the plea agreement. The court stated that even if it reached the issue under a plain error analysis, Gaines would not be entitled to relief as he failed to show the government’s breach of the agreement affected his substantial rights. U.S. v. Jensen, 423 F.3d 851, 854 (8th Cir. 2005). Whether or not the government recommended a third-level reduction for acceptance, the district court was not bound by that recommendation under the plea agreement in light of the fact that Gaines had declared his innocence and attempted to withdraw his plea.

As for Gaines’s challenge based on Booker, the Eighth Circuit held that it is now clear that the district court erred by sentencing Gaines to a mandatory guidelines system, but because Gaines did not raise this objection in the district court, it can review his claim only for plain error. The record did not establish that Gaines would have received a more favorable sentence had the court considered the guidelines as advisory. Gaines received a sentence at the low end of the guideline range, and the court indicated that the 210-month sentence was appropriate. Applying Pirani’s plain error analysis, the court concluded that Gaines was not entitled to Booker relief.
The court stated that Gaines’s argument that his three attorneys were ineffective is properly addressed in a § 2255 proceeding rather than on direct appeal.

The judgment of the district court is affirmed.

U.S. v. Louis Pierre Village Center, No. 06-1549 (D. N.D.). Before Circuit Judges Smith, Heaney, and Gruender. Opinion by Judge Gruender.

Louis Pierre Village Center ("Village Center") pled guilty to being a felon in possession of a firearm and to possessing an illegal firearm and was sentenced to 84 months imprisonment, the bottom of the guidelines sentencing range. On appeal, he contends that 26 U.S.C. § 5861(c) is an unconstitutional exercise of Congress’s authority to regulate commerce or to tax, challenges the propriety of applying the statute, and the validity of his sentence.

Held: Regardless of whether § 5861(c) is a valid exercise of Congress’s commerce clause authority (an issue the court does not address here), it is a valid exercise of Congress’s taxing authority. The Eighth Circuit has previously upheld § 5861(d) on this basis because it was passed in "aid of a revenue purpose." U.S. v. Hall, 171 F.3d 1133, 1142 (8th Cir. 1999). In Hall the court reasoned that § 5861(d) aided the revenue purpose because criminalizing possession of an unregistered firearm would force manufacturers to register firearms and would help identify the firearm maker liable for the tax. Accordingly, the court rejects Village Center’s argument that Congress lacked the authority to pass § 5861(c).

The court was not persuaded by Village Center’s argument that even if § 5861 does not exceed Congress’s taxing power, it is invalid as applied to him because it was impossible for him to register the sawed-off shotgun that he possessed. The court held that felons can comply with statutes proscribing possession of a firearm and § 5861's registration and taxation requirements by simply not possessing the firearm. Even if a firearm cannot be registered, an individual could still comply with the law by not taking possession of it.

Lastly, Village Center argues that his sentence cannot be sustained for two reasons: 1) First, he argues that the district court was unaware of its authority to grant him a downward departure. Having carefully read the transcript, the court held that the district court was aware of its ability to grant a downward departure, and its refusal to do so is unreviewable. 2) Village Center next contends that the district court’s calculation of his sentence based on prior convictions that were not proven to a jury or admitted is unconstitutional and violates his Sixth Amendment rights. The court has previously considered and rejected this argument. The district court may make fact findings affecting sentence.

Village Center’s conviction and sentence is affirmed.

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

July 3, 2006 Slip Opinions. Three criminal cases.

U.S. v. Mike Chase, No. 05-2070 (D. S.D.). Before Chief Judge Loken, and Circuit Judges Wollman and Riley. Opinion by Judge Wollman

Mike Chase appeals from the judgment and sentence of the jury’s verdict of guilty for voluntary manslaughter, arguing the following issues:

1) District court error in denying his motion for acquittal. The government presented evidence that Chase approached the victim, who was unarmed, and stabbed him numerous times. It also offered testimony that the victim was not part of the rival group that Chase feared was going to attack him, but was instead a peacemaker, and that Chase had approached the rival group and could have avoided the encounter. The evidence was sufficient to support the conviction.

2) District court error in excluding exculpatory evidence probative of his claim of self defense.
Chased tried to introduce evidence of prior attacks on himself and a family member by members of the rival group. The district court excluded this evidence, pointing to the absence of any authority that would support admission of evidence of an assault against a defendant by a party who was not the victim. The district court also was concerned that the proffered evidence would be prejudicial, confusing, and misleading; therefore the evidence was excluded under Rule 403. Chase argues that the evidence would have assisted the jury in evaluating his state of mind at the time he was confronted by the rival group. Held: Whatever probative value the evidence may have had in bearing upon Chase’s state of mind, it was properly determined by the district court to be outweighed by its potential to confuse and distract the jury. At any rate, Chase was allowed to testify about his history of violence with the rival group and thus was able to develop his claim that he acted out of fear for his life in stabbing the victim.

3) District court error in excluding a witness’s statement, arguing the statement should have been admitted under Rule 804(b)(3) or 807. The district court determined that the only part of the witness’s statement that inculpated her was her admission that she was the driver of the vehicle that plowed into the crowd. The Eighth Circuit agrees with this assessment, and further agrees that this fact was irrelevant to any of the issues in Chase’s trial. The court also agrees with the district court that the witness’s statement lacked circumstantial guarantees of trustworthiness equivalent to the hearsay exceptions provided for in Rules 803 and 804. The witness was a suspect in an assault case as the result of her use of an automobile to run down an individual of the rival group, and thus she had motive to implicate others and downplay her role in the incident.

4) The prosecutor’s rebuttal closing argument improperly appealed to the emotions and prejudices of the jury and denied Chase his Fifth Amendment right to a fair trial. Held: Even if the prosecutor’s comments were improper, they did not prejudicially affect Chase’s substantial rights so as to deprive him of a fair trial. The district court immediately gave a curative instruction and Chase failed to demonstrate that the instruction was inadequate, and he did not request further instruction by the court. The comments constituted an isolated event during the course of the trial and were not so inflammatory or egregious as to warrant reversal.

5) District court error in departing upward pursuant to §§ 5K2.6 and 5K2.8. Chase concedes that he used a weapon to stab the victim, but argues that the guideline provision for voluntary manslaughter already takes into account the use of a weapon or dangerous instrumentality, rendering a § 5K2.6 departure inappropriate. Held: Eighth Circuit agrees with the Seventh and Ninth Circuits’ analysis and concludes that a § 5K2.6 departure may be appropriate when the underlying offense is voluntary manslaughter. The voluntary manslaughter guideline does not mention the use of weapons or dangerous instrumentalities, nor are weapons or dangerous instrumentalities inherent in the offense of voluntary manslaughter. In light of Chase’s use of a weapon in killing the victim, the court held that the district court did not err in granting the § 5K2.6 departure.

As to the § 5K2.8 departure, the court found Chase’s conduct to be relatively egregious. He stabbed the unarmed victim at least five times, puncturing his organs. He then proceeded to kick the immobilized victim’s prostate, a gratuitous infliction of injury. Chase then fled the scene, leaving the victim to bleed from the wounds that resulted in his death. Given these circumstances and the fact that Chase admitted he had a history of violence with the rival group, the court held the district court did not abuse its discretion in granting the upward departure.
6) Chase’s final argument is that the 96-month sentence imposed is unreasonable. Held: Chase’s sentence represents only an 18% variance from the guidelines range of 57-71 months. This departure is not extraordinary, and the court concludes the sentence is reasonable in light of the nature and circumstances of the offense and Chase’s history of violence.
The judgment of the district court is affirmed.

U.S. v. Leo Adams, No. 05-2712 (E.D. Missouri). Before Chief Judge Loken, and Circuit Judges Bowman and Bye. Opinion by Judge Bowman.

A jury found Leo Adams guilty of conspiracy to distribute drugs and sentenced him to 360 months in prison. On appeal, the Eighth Circuit affirmed the conviction but remanded for resentencing in accordance with Booker. On remand, the district court imposed the same sentence. Adams appeals, arguing that the district court erred in calculating the amount of drugs involved in the offense.

Held: The district court determined that the heroin that was shown to have been purchased for distribution during Adams’s participation in two conspiracies was relevant conduct that should be considered in calculating his base offense level. The evidence showed that Adams purchased heroin for distribution from the Serrano co-conspirators until he and the Serrano brothers had a falling out over money, at which time Adams joined the Rush-Bey conspiracy for a source of heroin. Considering the similarity, regularity and temporal proximity of the charged and uncharged conduct, the Eighth Circuit found no error in the district court’s finding that Adams’s dealings in at least 30 kilos of heroin constituted conduct relevant to his offense and therefore should be considered in establishing his base offense level.

Adams also argues that the district court committed a constitutional ex post facto violation by applying the Guidelines as advisory rather than mandatory. Held: Since the briefing in this case, the Eighth Circuit decided U.S. v. Wade, 435 F.3d 829 (8th Cir. 2006), which noted inter alia that the application of the remedial portion of Booker, even to pre-Booker conduct, was mandated by the Supreme Court and the Supreme Court would not direct the court to violate the Constitution. Accordingly, the Eighth Circuit rejects Adams’s ex post facto argument.
Post-Booker, the court reviews an advisory Guidelines sentence for reasonableness under § 3553(a). Adams’s sentence, being within the advisory Guidelines range, is presumptively reasonable, and Adams has not shown that the district court failed to consider a relevant factor, gave significant weight to an irrelevant factor, or committed a clear error in judgment. The sentence is affirmed.

U.S. v. Rigoberto Valle Cruz, No. 05-3258 (D. Nebraska). Before Chief Judge Loken, and Circuit Judges Bowman and Smith. Opinion by Judge Bowman.

The government appeals from the district court order granting suppression motions filed by Rigoberto Valle Cruz and Angelina Alford. The government challenges three of the district court’s factual findings: 1) that the highway patrol trooper who stopped the defendant Valle Cruz’s vehicle did not receive information about Alford’s criminal history until after her arrest; 2) that Alford "was almost immediately told by the officer to ‘stay here, don’t go anywhere;’" and 3) that the initial search of the vehicle followed the stop by two hours, instead of less than one. Alford concedes the errors, but she and Valle Cruz contend that the errors did not determine the issue of probable cause. After reviewing the videotape of the trooper who made the stop, the Eighth Circuit agrees that the district court’s findings were clearly erroneous.
Held: A probable-cause determination is made after looking at the totality of relevant circumstances and applying a "common sense approach." U.S. v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005). Ultimately, probable cause exists in a case such as this when a reasonably prudent person would look at the facts and circumstances and believe "that contraband or evidence of a crime will be found" if the vehicle were to be searched. Ornelas v. U .S., 517 U.S. 690, 693 (1996).

After a careful review, the Eighth Circuit concluded that the collective facts and circumstances in this case were such that the trooper had developed sufficient probable cause to search Alford’s vehicle: the trooper found Alford to be sleepy, and he suspected illegal drug use when he first made contact with her; Valle Cruz and Alford separately told inconsistent stories about their trip; and Valle Cruz wanted Alford to leave the scene before the drug-detection dog arrived. The evidence revealed that the trooper did not decide to check the license plate of Alford’s car until it was clear that Valle Cruz did not want the drug dog to sniff Alford’s car. At the time the trooper received the information about Alford’s criminal history, drugs had been found hidden in SUV Valle Cruz had been driving. The court stated that at that moment, the trooper’s knowledge of Alford’s previous criminal drug charges became all the more relevant to the question of probable cause. Moreover, Alford opposed the drug-detection dog’s sniff of her car and interfered to such an extent that the canine handler had to pull the dog away so he would not bite her. Additionally, Alford resisted for several minutes when asked to get out of the car, even locking herself in the car. The court stated by then the trooper’s determination that he had probable cause to search the car was objectively reasonable. The court held that the district court erred in holding otherwise.

Alford argues that she was seized when the trooper first spoke with her, that the seizure was without reasonable suspicion, and that the seizure was illegal. The Eighth Circuit disagrees. The facts demonstrate that Alford voluntarily pulled her vehicle over to the side of the road, presumably to wait for Valle Cruz, with full knowledge that he had been stopped by law enforcement. Eventually, some ten minutes into the stop, the trooper walked up to Alford’s car to ask questions but did not ask for her identification or any other documentation. But, Alford contends that the trooper’s comment to "sit tight" altered the consensual nature of the encounter. The Eighth Circuit does not agree. The court held that the trooper comment was not spoken as a command, but was to be understood by a reasonable person to mean "be patient while we finish up here," not "you are being detained." The court concluded that the comment, when taken in context, was not the sort of "physical force or show of authority" that would have converted the encounter into a seizure. By the later time when Alford was seized by the trooper, there had developed, at the very least, a reasonable suspicion of criminal activity.

Accordingly, the Eighth Circuit affirms the holding of the district court on the issue of Alford’s seizure, but reverses the order granting suppression and remands for further proceedings.

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

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