Sixth Amendment

United States v. Bernard Moore, et al. (11th Cir. March 2020)

The Eleventh Circuit rejected a number of challenges in affirming the defendants' sentences for drug trafficking and unlawful possession of firearms, holding that the district court did not plainly err in shackling the defendants during trial without stating its reasons in the record and that the district court did not abuse its discretion in interviewing jurors in camera regarding their safety concerns and summarizing those interviews for the parties. The Court also concluded that the indictments failure to allege the defendants' mens rea as required under Rehaif v. United States did not deprive the court of jurisdiction and the plain error of convicting the defendants of unlawful possession of firearm did not warrant reversal where the government would have been able to prove their knowledge.

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United States v. Albi Doka (2d Cir. April 2020)

Upon the defendant's appeal of his revocation of supervised release, the Second Circuit held that the Supreme Court's decision in United States v. Haymond did not overrule its prior precedent that district courts may engage in fact-finding when revoking a defendant's supervised release and imposing an additional term of imprisonment under 18 U.S.C. § 3583(e)(3).

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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.

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