Atlanta Federal Criminal Attorney
Richard A. Grossman
Richard A. Grossman, Trial Attorney
66 Lenox Pointe, NE
Atlanta, GA 30324
678-358-6555
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Supreme Court’s Speedy Trial Opinion Limits Automatic Exclusion of Time Granted to Prepare Pretrial Motions
The Speedy Trial Act, Title 18 U.S.C. Section 3161, et. seq., requires that a criminal defendant be tried within 70 days of indictment or the defendant’s first appearance in court, whichever is later. Subsection (h) provides for numerous periods of “excludable time.”
In Bloate v. United States (08-728) The Supreme Court held that the time granted to prepare pretrial motions is not automatically excludable from the 70-day limit under subsection (h)(1). Instead, such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7). Subsection (h)(7) provides that delays “resulting from a continuance granted by any judge” may be excluded, but only if the judge finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial” and records those findings.
New 11th Circuit Opinion re: Drug Quantity and Statutory Mandatory Minimums
In US v. Bacon, No. 08-10463, the court vacated Defendant Sheikel Jamison’s sentence. Jamison was convicted of participating in a drug trafficking conspiracy under 21 U.S.C. section 846. There was a special jury verdict that the conspiracy involved more than 5 kilograms of cocaine and Jamison was sentenced to the statutorily mandatory minimum sentence of 10 years imprisonment.
On appeal Jamison argued that his sentence must correspond to the quanitity of drugs attributable to him.The court agreed, concluding that Jamison must be sentenced based on an individualized finding, supportable by a preponderance of the evidence, as to the drug quantity foreseeable by that defendant. Jamison’s sentence was vacated and his case remanded for re-sentencing.
Posted by Richard Grossman
U.S. Supremes Reverse 11th Cir. Armed Career Criminal Act Conviction
The U.S. Court of Appeals for the Eleventh Circuit’s judgment upholding a sentence for possession of ammunition by a convicted felon, which was enhanced under the Armed Career Criminal Act, is reversed where the Florida felony offense of battery by actually and intentionally touching another person does not have as an element the use of physical force against the person of another, and thus does not constitute a violent felony under 18 U.S.C. section 924(e)(1).
The Supreme Court released its opinion in Johnson v. United States, no. 08-6925, reversing the Eleventh Circuit and finding that because the Florida offense of battery by offensive touching does not require the use of physical force, it does not qualify as an ACCA predicate under 935(e)(2)(B)(i).
The Court held that it was bound by the Florida Supreme Court’s interpretation of the statutory elements of the offense, an important ruling for anyone dealing with state offenses that have been narrowed by the state’s courts. The Court defined “physical force” for purposes of ACCA as requiring “violent force — that is, force capable of causing physical pain or injury to another.” The Court refused to remand to allow the government to argue that the battery satisfied 924(e)92)(B)(ii)’s residual “otherwise” clause, because the government had previously disclaimed reliance on that provision at sentencing.
Posted by Richard Grossman
Read Johnson v. United States http://www.supremecourtus.gov/opinions/09pdf/08-6925.pdf
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).