Atlanta Federal Criminal Attorney
Richard A. Grossman
Richard A. Grossman, Trial Attorney
66 Lenox Pointe, NE
Atlanta, GA 30324
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Archive for February, 2010
Arnold: Granting Habeas Relief Based on Brady Violation
In Arnold v. Sec. Dep’t of Corrections, No. 09-11911 (Feb. 8, 2010), the Eleventh Circuit Court of Appeals adopted the opinion of the district court in the Middle District of Florida granting habeas relief to a Florida inmate who alleged a Brady violation based on undisclosed criminal activity by the police officer who was a primary investigator in his own case.
The opinion rejected the State’s argument that, since the prosecution itself was, like Arnold, unaware of the police officer’s corrupt activities, it could not deemed to have “suppressed” this evidence. The opinion noted that the police officer was part of the “prosecution team,” and therefore his own concealment of his activities sufficed for purposes of establishing a Brady violation. Moreover, impeachment of the police officer based on his activities could have changed the outcome of the trial, because the officer testified against Arnold and provided vital identification testimony. The opinion rejected the argument that the impeachment evidence would not have been admissible, pointing out that it might actually have been unnecessary given the State’s admission that, had it known of the police officer’s activities, it would not have called him as a witness.
Eleventh Circuit Ruling on Loss Calculation and Restitution
The Eleventh Circuit has an interesting decision in US v. Patterson, No. 09-13354 (11th Cir. Feb. 8, 2010) (available here), that should be of interest to people facing various white-collar sentencing issues. Here is how the ruling starts:
This appeal presents the question of whether it is error for a court to sentence a defendant under a Guidelines calculation of intended loss that is more than double the amount of restitution ordered in the same case. We conclude that the facts of this appeal do not present the plain error that appellant asserts. We also reject appellant’s claim of ineffective assistance of counsel because the record is not sufficiently developed and collateral attack is the preferable avenue for such challenges. Therefore, we affirm the judgment of the district court.
This opinion provides a good review of the Eleventh Circuit law regarding intended loss, actual loss, restitution and the Federal Sentencing Guidelines. The Guidelines calculate a range based on how much loss was caused by the defendant’s crime. The sentence is calculated using intended loss, whereas the amount that a criminal must pay back, called restitution, is based on the amount of loss actually caused by the defendant’s conduct.
Some fraud crimes result in actual loss amounts that differ greatly from the intended loss. That was the problem in this case. This case involved stolen cars, some of which were never recovered and others were returned to their owners intact. For these reasons, the intended loss more than doubled the actual loss and restitution. Patterson argued that the loss amount used in sentencing should equal the restitution amount, but the Court rejected his argument, explaining that “cases offer substantial explanations why these figures can diverge.” The Court of Appeals said, a “criminal pays the price for the ambition of his acts, not their thoroughness.”
White Collar Sentencing Issues
Posted by Richard A. Grossman
Supreme Court Will Decide Meaning of 924(c) “except clause” with cert Grants in the Third and Fifth Circuits
The Supreme Court has accepted certiorari in Abbott v. United States, 09-479, and Gould v. United States, 09-7073. These cases involve the correct interpretation of 18 U.S.C. 924(c)’s “except clause”. Before listing the various mandatory minimum sentences under the various subsections, the 924(c) contains the proviso, “except to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law.”
The argument is that the “except clause” applies when a defendant is being sentenced for a 924(c) violation and some other statute which carries a higher mandatory minimum than the one which applies to the 924(c). This can happen with ten year mandatory minimum drug cases and also with multiple counts of 924(c) (since the second or subsequent carries a 25 year minimum).