Sixth Amendment

Willie B. Smith, III v. Commissioner (11th Cir. May 2019)

The Court affirmed the district court’s denial of the defendant’s habeas petition under § 2254. The defendant failed to show that the state court’s denial of Atkins claim of ineligibility for the death penalty due to intellectual disability or denial of his Batson claim were contrary to clearly established law or constituted an unreasonable determination of the facts. The Court also held that the requirement in Moore v. Texas that state courts consider prevailing medical standards in adjudicating Atkins claims was not retroactive under Teague.

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United States v. Jeffrey Cooper (11th Cir. June 2019)

Sixth Amendment/Confrontation Clause – There was no confrontation clause violation when law enforcement agent testified that the victims refused to testify because they feared humiliation since their statements regarding why they would not testify were not testimonial. However, the mens’ reasons for visiting the defendant’s apartment were testimonial statements since they were made in response to law enforcement questioning. The defense opened the door for both statements on cross-examination.

Jury Instructions – The district court correctly rejected the defendant’s argument that including “prostitution and related acts” in an instruction allowed the jury to convict him for conduct that not illegal and the defendant’s objection to the instruction for bringing an alien to the U.S. for “any other immoral purpose,” since the jury was instructed that such an “immoral purpose” must objectively include a sex act.

On appeal from his convictions for wire fraud, importing an alien for immoral purposes, and sex trafficking, the defendant raised several challenges regarding the admissibility and sufficiency of the evidence. At trial, the Government presented a variety of evidence showing that the defendant lured female students from Kazakhstan to Florida with the promise of securing them jobs through a government sponsored work-exchange program, while instead using them as sex workers. Notably, the victims returned to Kazakhstan and refused to testify at the defendant’s jury trial.

First, the Court rejected the defendant’s hearsay and confrontation clause challenges, including a law enforcement agent’s testimony that the victims refused to testify because they feared humiliation. The Court held that, even if this was hearsay, defense counsel opened the door by cross-examining the agent as to the Government’s failure to procure the victims as witnesses. The Court added that the agent did not offer testimonial statements from the victims, since he had only been asking them about their reasons for refusing to testify rather than trying to establish fact relevant to the charged offense or the defendant’s guilt.

The Court applied the same reasoning to statements made by men who had signed the defendant’s visitor logs when paying for sexual services. The law enforcement agent only testified that the men told him they came to the defendant’s apartments to receive sexual services after defense counsel asked him whether the logbooks were signed by visitors that were “merely Airbnb guests.” The Court held that the mens’ statements were testimonial, however, since they made them in response to the agent’s investigative questioning. This confrontation clause error was harmless, however, given the other evidence showing the defendant’s use of the apartments.

The Court also affirmed admission of another agent’s testimony regarding statements one of the victims made in a recorded call with the defendant, finding that her statements were not admitted for the truth of the matters asserted but to give context to the defendant’s statements. Moreover, the confrontation clause was not implicated since the clause only bars testimonial statements admitted for establishing the truth of the matter asserted.

The defendant also argued that the trial court erred in admitting prior bad-act evidence under Rule 404(b), specifically the admission of the defendant’s book of contact information and physical descriptions of women and transcripts of his conversations with women. The Court responded that the evidence as admissible to show a continuous course of conduct reflecting the defendant’s intent to operate a sex business.

The Court also held there was sufficient evidence to prove the defendant committed fraud and sex trafficking by fraud. His misrepresentations regarding the work the women would do was material to the women themselves and the government’s work-sponsor program’s decision to grant work visas, and this fraud was integral to manipulating the women into sex work.

The Court affirmed the district court’s jury instructions too, holding that the defendant’s proposed instructions on the rules for the work-sponsor program were misleading, and it rejected his argument that including “prostitution and related acts” in an instruction allowed the jury to convict him for conduct that not illegal. The Court also rejected the defendant’s objection to the instruction for bringing an alien to the U.S. for “any other immoral purpose,” since the jury was instructed that such an “immoral purpose” must objectively include a sex act.

Appeal from the Southern District of Florida

Opinion by Rosenthal (by designation from S.D. Tex.), joined by W. Pryor and Newsom

Click here to read the opinion.

United States v. Haymond (U.S. Supreme Court, June 2019)

The Court struck down 18 U.S.C. § 3583(k) which required district courts to impose a mandatory minimum sentence upon revoking a term of supervised release for certain offenses, as the Court cannot impose a sentence exceeding a term of supervised release without a jury finding guilt beyond a reasonable doubt.

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United States v. Diosme Hano and Reinaldo Arrastia-Cardoso (11th Cir. April 2019)

The Court affirmed the defendants’ convictions and sentences, holding that 1) the statute of limitations did not bar prosecution since subsequent DNA testing implicated the defendant, 2) a non-testifying co-defendant’s hearsay statements implicating the defendant were admissible as non-testimonial since the co-defendant had no reason to believe the statements would serve as a substitute for testimony, 3) there were no evidentiary errors and the evidence was sufficient to convict, 4) the prosecutor’s comment in closing that there was no other explanation for defendants’ DNA at the crime scene was not a comment on the defendant’s decision not to testify, and 5) the sentencing court properly applied an enhancement for “using” a weapon.

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United States v. Valois

United States v. Valois, et al., No. 17-13535 (February 12, 2019)

Two groups of individuals were intercepted by the Coast Guard and prosecuted separately for drug trafficking on the high seas. The Court affirmed the second group’s convictions, holding that a mistrial was not warranted based on the prosecutor’s references to a conspiracy between the groups during closing arguments, that the defendants were not prejudiced by defense counsel that was also defending the other group of defendants, and that the safety valve reduction under the guidelines does not apply to defendants convicted under the MDLEA.

Mistrial – Mistrial was not warranted when prosecutor argued in closing that the defendants were part of a broader conspiracy with another group of defendants in a separate case since the defendants had already introduced extrinsic evidence regarding the other group of defendants.

Ineffective Assistance of Counsel – Defendants did not suffer from conflicted counsel that represented them and a second group of defendants arising from the same transaction since the groups were prosecuted separately and independently from each other.

Sentencing Guidelines – Defendants convicted of violating the MDLEA are ineligible for a two-level reduction under § 2D1.1(b)(17), the guidelines’ “safety valve” provision.

Two groups of three foreign nationals were prosecuted separately for trafficking cocaine in international waters in violation of the Maritime Drug Law Enforcement Act.

The two groups were intercepted together by the U.S. Coast Guard but were seized and arrested a day apart. While the Coast Guard did not find drugs on either vessel, the Government argued that each boat had dumped 16 bales of cocaine into the ocean which were later recovered by the Coast Guard. The second group of defendants, who were seized and arrested after the first group, argued at trial that all of the cocaine in the ocean came from the first boat.

A jury convicted the second group of defendants. On appeal, they argued that mistrial had been warranted, they received ineffective assistance of counsel, and the district court erred in calculating their sentencing guidelines ranges.

The defendants argued that a mistrial had been warranted because the prosecutor’s closing arguments referenced the prior seizure of the first group’s boat and asserted that the second group and first group acted as part of a broader conspiracy. They argued that this was an improper attempt by the Government to introduce extrinsic evidence under Rule 404(b).

The Court rejected these arguments, holding that “statements and arguments of counsel are not evidence” and noting that the defendants had introduced the prior seizure as part of their defense that the drugs belonged to the first group. The Court also held that the remarks by the prosecutor were not improper since, once the prior seizure was introduced into evidence, the jury could infer that both boats had been engaged in drug trafficking. For good measure, the Court added that the defendants weren’t prejudiced since the trial court had issued a curative instruction warning the jury not to consider actions by other defendants in other cases.

The defendants also argued that they received ineffective assistance of counsel since their attorneys were inherently conflicted—three attorneys had been appointed to represent one of the defendants in each of the two groups. Since the main defense at trial was blaming the cocaine on the first group, the defendants contended that their counsel was forced to choose “between courses of action that were helpful to one client but harmful to the other.” The defendants also argued that they never received a Garcia hearing to determine whether they knowingly waived the conflict of interest.

The Court again rejected their argument, holding that the lack of a Garcia hearing was not reversible error since there was no “actual” conflict of interest since the cases were prosecuted independently from each other, and each depended on the individual actions of the defendants. In fact, defense counsel had tried to shift blame to the first group at trial as part of their defense.

The defendants also argued that they should have been eligible for a two-level reduction under the guidelines’ equivalent of the safety valve. U.S.S.G. §§ 5C1.2(a)(5) provides for a two-level reduction in the defendant’s offense level if the defendant cooperates with the Government and provides full information and evidence about their offense.

The Court held that, like the statutory safety valve, the guidelines’ version does not apply to MDLEA defendants. The Court also declined to consider whether the safety valve is unlawful under the Fifth Amendment’s prohibition on compelling self-incrimination, noting that the Guidelines provisions for acceptance of responsibility have been upheld against similar challenges.

Appeal from Southern District of Florida

Opinion by Hull, joined by Grant and Jordan

TAGS: Drug Offenses, Sixth Amendment, Sentencing, Sentencing Guidelines

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