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					                         CJA PANEL NEWSLETTER
                                FEDERAL PUBLIC DEFENDER
                              NORTHERN DISTRICT OF FLORIDA
                                          http://www.fpd-fln.org



    Volume XI, Issue II                                                     April 22, 2010




IN MEMORIAM                                              done. He performed superbly and did a
                                                         wonderful job representing our office. One of
       Thomas E. Miller, Jr.                             the most remarkable measures of his efforts
                                                         was that over the years not one of his clients
Long-time federal public defender Thomas E.              charged with a drug offense was sentenced to
Miller, Jr., passed away on February 3, 2010,            a mandatory life sentence. Along the way he
fourteen months after being diagnosed with               earned the friendship and respect of
lung cancer.                                             probation officers, judges, clerks,
                                                         prosecutors, and nearly everyone he came
Federal Public Defender Robert Vossler hired             across. He did so through hard work and by
Tom in 1991. When Tom began work there                   being himself.
was no federal public defender office in
Gainesville, and he traveled from Tallahassee            His clients appreciated his efforts, too. In an
to represent clients in the Gainesville                  evaluation form that routinely goes out to our
Division. In July of 1992, Tom opened our                clients, one, Divina Smith, wrote: “I was
Gainesville office in the federal courthouse.            blessed to have Mr. Tom Miller represent
Within a few months, he and the office moved             me. He treated me with respect from the very
to our current location in the Sun Center. Tom           first time I spoke to him on the phone . . . He
worked out of that office until his retirement           made it easy for me to see my probation
in March of last year. In the nearly 18 years            officer and face the judge because he made
Tom worked as an assistant federal public                me feel important. He made me feel that I
defender, he represented hundreds of clients.            still have a chance to turn my life around. I
                                                         hope and pray that all your lawyers are like
Day in and day out, Tom used his                         him.”
considerable talents and charm to advocate
effectively for his clients. He knew all the ins         Those of us who knew Tom came to treasure
and outs, who to call, and how to get things             him as a fine lawyer with a big heart and as a
                                                                                               2

friend with a wonderful sense of humor. We        PRESIDENT OBAMA NOMINATES NEW U.S.
miss him sorely. Tom is survived by his wife      ATTORNEY
Sue and three children, Tommy, Carissa, and
Brent.                                            President Barack Obama has nominated
                                                  Tallahassee lawyer Pamela Marsh to be the
       Magistrate Judge Allan Kornblum            next United States Attorney for the Northern
                                                  District of Florida. Ms. Marsh served from
Magistrate Judge Allan Kornblum died              1999 to 2006 as an assistant United States
unexpectedly on February 12. He was 71. He        attorney in Tampa. She is currently of
had served in Gainesville since 2003.             counsel to the law firm of Akerman Senterfitt
                                                  and was a law clerk from 1995-1996 to Jane
Judge Kornblum had a remarkable career,           Roth of the United States Court of Appeals
having begun his government service as a          for the Third Circuit. She is a 1995 graduate
New York City police officer and an F.B.I.        of the Georgetown University Law Center.
agent. Subsequently, as a member of the
United States Justice Department, he wrote        CRACK COCAINE LEGISLATION
new procedures governing the F.B.I.’s
surveillance and counterintelligence work that    Last month the United State Senate approved
were designed to prevent some of the abuses       Senate Bill 1789, which reduces the
that had occurred over the years. He went on      mandatory minimum penalties for crack
to write key provisions of the 1978 Foreign       cocaine. The Senate did so through a means
Intelligence Act designed to separate             of procedure, unanimous consent, which
potentially valuable intelligence data from       allowed the passage of the legislation so long
private data that was not of concern to the       as no member objected.
government. When he was deputy counsel for
the Office of Intelligence and Policy Review,     The provision does not establish a one-to-one
Judge Kornblum supervised wiretap                 ratio between crack and powder cocaine.
applications for the F.B.I. and the National      Instead, it raises the threshold for the five-
Security Agency.                                  year mandatory minimum sentence from 5
                                                  grams of crack to 28 grams and raises the
Judge Kornblum earned his law degree in           threshold for the ten-year mandatory
1961 from New York University. He served at       minimum from 50 grams to 280 grams. The
one point as the director of security at          respective thresholds for powder cocaine are
Princeton University where he earned a            500 grams and 5,000 grams, leaving the ratio
doctorate in 1973 with a dissertation on ethics   between the two drugs at about 18:1. There is
and corruption in the New York City Police        no provision for the retroactive application of
Department.                                       the new mandatory minimums. The bill
                                                  eliminates the mandatory minimum sentences
(The material in this article comes from the      for possession of 5 grams or more of crack
obituary that appeared in the New York Times.     cocaine.
There was also one in the Washington Post)
                                                  The legislation directs the Sentencing
                                                  Commission to make changes to the
                                                                                                3

guidelines to reflect this new ratio within 90     should benefit from all three changes.
days of the passage of the legislation. There is   Another change, one that modifies some of
also a directive that would result in an           the language in Chapter Five of the
additional two-level reduction for those who       Guidelines Manual pertaining “Offender
have minimal involvement in the offense.           Characteristics,” may or may not prove to be
                                                   beneficial.
There are provisions as well, though, that
would increase the penalties for many charged      Currently, USSG §4A1.1(e) adds two
with drug offenses. The bill directs the           criminal history points if the current offense
Sentencing Commission to provide a two-            occurred less than two years after the
level enhancement for a number of                  defendant’s release from a sentence of
circumstances, among them: the use of              incarceration or if the defendant committed
violence or threats thereof; the involvement of    the current offense while imprisoned or on
another who was to receive little or no            escape status. The Commission’s amendment
compensation; the involvement of someone           eliminates the provision.
who is under 18, pregnant, or over 65; the
defendant being subject to the aggravating role    USSG §2L1.2, governs the guideline
enhancement for organizers or leaders; and the     calculations for those convicted of
defendant being someone who sells drugs as         unlawfully reentering the United States. The
part of his livelihood.                            amendment provides for a departure based
                                                   on cultural assimilation for those who have
While the bill awaits action by the House of       resided continuously in the United States
Representatives, there is some question as to      since childhood.
whether there is any advantage in trying to
postpone pending crack cases. In Orlando,          USSG §5C1.1 authorizes placement in a half-
United States District Court Judge Gregory         way house or home confinement in lieu of a
Presnell has continued until August a case         prison sentence for those who fall in Zone B
involving several defendants because of the        of the Sentencing Table. It authorizes the
pending legislation. See United States v.          same alternatives for one-half of the sentence
Green, Case No. 6:08cr270. Others, though,         for those who fall in Zone C. The amendment
are of the view that any new legislation will      increases the upper level of the two Zones by
not affect those whose offenses occurred prior     one offense level meaning that, for example,
to the enactment of the legislation.               someone with a Criminal History Category
                                                   III and a Offense Level 9 ( 8-14 months) who
AMENDMENTS TO SENTENCING GUIDELINES                is now in Zone C will find themselves in
                                                   Zone B. The Commission has also modified
Earlier this month, the United States              Note 6 in the Commentary to §5C1.1 with
Sentencing Commission voted to amend the           new more precise language that explains
guideline used in calculating criminal history     when it is appropriate to substitute one of the
and provided grounds for a departure in            non-prison sanctions for the entire sentence
immigration offenses. They also voted to           for those in Zone C if the defendant is in
expand the guideline ranges that allow for         need of treatment for drug and alcohol abuse
alternatives to incarceration. Defendants          or a significant mental illness.
                                                                                                4

Collectively, §§ 5H1.1, 5H1.3, and 5H1.11          PANEL ATTORNEY DINNERS
fo the Guidelines Manual currently instruct
judges that age, mental and emotional              Over the next few months, our District Court
conditions, physical condition, and military       Judges will be inviting panel members to join
service do not usually justify a downward          them in a dinner to recognize the efforts of
departure. The amendments affirmatively state      the panel. The dinners give members of the
that these conditions may justify a departure in   panel an opportunity to meet with each other
an atypical cases. The current version of          and the resident district and magistrate judges
§5H1.4 states that a downward departure            in an informal social setting. A dinner will be
cannot be justified on the basis of drug or        held in each division within the district. The
alcohol dependence or abuse. The amendment         meal for the panel member and his or her
slightly loosens the standard and, instead of      guest will be paid for out of the Court’s
excluding the possibility of a departure all       bench and bar fund. The first of the dinners
together, states that drug or alcohol              will be held in Panama City on May 13th.
dependence or abuse is not “ordinarily a
reason for a downward departure.”                  As the judges and the Clerk’s Office have
                                                   gone to some trouble to arrange the dinners
The amendments to Chapter Five are                 to honor panel members and the dinners are
favorable to the extent that they relax the        free, we encourage all panel members to
standard for departures. However, as most          make every effort to attend.
below-guideline sentences are now the
product of the discretion given judges by          DOUBLE BILLING
Booker rather than downward departures
authorized by the guidelines, the changes may      The Northen District Clerk’s Office, in a
have little effect. At worst, though, some         recent audit, found some 51 possible
judges may erroneously view the changes as         incidents of “double billing” going back to
channeling and coopting their discretion.          2004. The incidents involve eight different
                                                   panel members. While there are explanations
The particulars of all of these changes should     for some of the apparent incidents, the others
soon be posted on the Commission’s website         involve a panel member’s submission of time
at www.ussc.gov. Barring any action by             for one round-trip in two separate vouchers,
Congress, the amendments are slated to take        i.e. a claim for a one-hour round trip to the
effect on November 1. Between now and then         jail to see clients A and B shows up in the
the changes to the criminal history provision,     voucher for client A and in the voucher for
the recognition of cultural assimilation as a      client B. In nearly all incidents, weeks and
reason for a departure, and the expansion of       even months separate the filing of the two
Zones B and C of the Sentencing Table              vouchers.
provide us with good reason for requesting a
below-guideline sentence in those cases that       The Clerk’s Office is of the view that the
would, in November, be affected by the             double billing is the result of inadequate
amendments.                                        record keeping rather than any deliberate
                                                   effort to inflate claims. Nonetheless, it is in
                                                   the process of contacting the individual
                                                                                    5

lawyers and, where appropriate, asking for        Johnson, Stephen             2
reimbursement.                                    Mason, Geoffrey              0
                                                  Rudenstine, Sonya            0
As a result of the audit findings, the Clerk’s    Sanford, Jerry               1
Office is likely to take a closer look at         Schaffnit, Gilbert           3
vouchers. It’s a reminder, too, of the need for   Uman, Jon                    3
panel members to keep careful records.            Vipperman, Lloyd             3

WHO GOT HOW MANY CASES                            Pensacola

Here are the number of panel assignments          Amond, Elizabeth             7
each panel member received in 2009:               Couch, Clint                 10
                                                  Duignan, Maureen             0
Tallahassee                                       Hammons, Joe                 6
                                                  Hendrix, Michelle            5
Bubsey, William                        9          Hughes, Greg (Mobile Atty)   1
Cummings, Greg                         0          Jackson, Patrick             5
Daley, Bernie                          6          Jenkins, James               0
Davis, Cliff                           3          Klotz, Chris                 3
Donaldson, Teri                        2          Kypreos, Spiro               12
Findley, Thomas                        0          Lang, Brian                  7
Garcia, Mandy                          5          McCleary, Barry              0
Greenberg, Richard                     8          McGuire, Thomas              4
Harper, Bob                            1          Messer, Jim                  4
McMurry, Chuck                         3          Murphy, George               4
Morris, Alex                           4          Oram, Albert                 6
Printy, Gary                           8          Polk, Eugene                 2
Rudenstine, Sonya                      3          Printy, Gary                 1
Sanders, Barbara                       4          Rabby, Chris L.              3
Taylor, Clyde                          3          Reynolds, Shelley            7
Truskoski, Ryan                        1          Sheehan, Donald              11
Ufferman, Michael                      2          Stevenson, Eric              5
Villeneuve, Paul                       1          Sutherland, Steve            5
                                                  Wilson, Sharon               3
Gainesville
                                                  Panama City
Bernstein, Steve                       3
Broling, John                          5          Broling, John                1
Curtis, Ted                            2          Bubsey, Bill                 1
Daley, Dan                             3          Cassidy, Thom                7
Edwards, Tom                           5          Clyatt, Rhonda               4
Hatfield, Anderson                     3          Dingus, Jonathan             9
Johnson, Huntley                       3          Downing, Jean                6
                                                                                              6

Hatfield, Anderson                     1          Ms. Kyle has served as an assistant United
Higgins, Tanya                         7          States attorney in Miami, a United States
Murphy, George                         3          Magistrate Judge in Miami, and as a
Patterson, Chris                       6          municipal judge in Bozeman, Montana. She
Rudenstine, Sonya                      1          is a 1974 graduate of the University of
Sombathy, Robert                       6          Miami. She maintains her practice in
Stephenson, Dustin                     9          northern Georgia and, at her request, will be
                                                  assigned only post-conviction claims that do
                                                  not require a court appearance.
JENNIFER HART JOINS OUR PENSACOLA
OFFICE                                            TRAINING OPPORTUNITIES

Jenniffer Hart joined out Pensacola office last   The Office of Defender Services will be
month as an assistant federal public defender.    presenting its Winning Strategies Seminar in
She comes to us via the Federal Defender          Chicago from June 17th - June 19th. The
Office in Vermont, but having worked for          training will employ both plenary and break-
nine years in the Federal Defender Office in      out sessions to present “nuts and bolts”
Birmingham, Alabama, and having worked a          defenses to firearms, drugs, child
short stint in the Federal Defender Office in     pornography and immigration prosecutions -
Macon, Georgia. Jennifer is a graduate of the     as well as to present defenses to more novel
Pepperdine University School of Law in            prosecutions such as mortgage fraud and
Malibu, California, and Auburn University.        identity theft.
She has a strong background in research and
appellate work as well as trials. We’re            Defender Services will also be presenting its
delighted to have added such a talented lawyer    Law and Technology Workshop in Miami
to our staff.                                     this summer from July 22nd - 24th. There is no
                                                  registration fee. It is an intensive program
NEW PANEL MEMBERS                                 where participants will learn to use
                                                  TrialDirector and PowerPoint products to
The judges have added two new members to          sharpen their direct-examination, cross-
the CJA Panel, Charles Truncale and Patricia      examination, and opening and closing
Kyle.                                             arguments. The program is limited to 80
                                                  panel members.
Mr. Truncale, who has been appointed only
for handling appeals, maintains his practice in   Go to www.fd.org for more details and
Jacksonville. He is a 1978 graduate of the        registration for both seminars.
Cumberland School of Law. From 1981 -
1987 he served as an assistant United States      There are two chances to learn more about
attorney in Alabama. He held that same            the Sentencing Guidelines. In New Orleans
position in the Middle District of Florida from   on June 16th - June 18th, the United States
1987 - 2004. He has tried more than 100           Sentencing Commission will be presenting
federal criminal cases and handled more than      its Annual National Seminar. You can
200 appeals.                                      r e g i s t e r      o n l i n e        a t
                                                                                                                 7

www.regionline.com.com/annualfsgseminar                             Date of Imposition of Sentence: 4/15/10
2010 and find out more details at the                               Grounds: Defendant ultimately chose not to
                                                           deliver gun to purchaser; aberrant conduct, otherwise
Sentencing Commissions website at                          good character
www.ussc.gov. In just a few weeks, the
National Association of Criminal Defense                   Baxler, Donald         Rodgers, M. Atty: Tom Keith
Lawyers and the Tampa Bay Chapter of the                             Docket: 3:09cr77
Federal Bar Association are presenting the 19th                      Charge: Illegal Sale of FA to CF
                                                                     Range: 27 - 33 months
annual Federal Sentencing Guidelines                                 Sentence: 18 months BOP
Seminar in St. Petersburg from May 12th -                            Date of Imposition of Sentence: 1/27/10
14th. Details and registration information are                       Grounds: Enhancement for rifle being less
available at www.nacdl.org/meetings.                       than 26 inches overstated the seriousness of the
                                                           offense; no prior firearm offenses; and criminal history
                                                           points resulting from a minor battery offense
PANEL TRAINING                                             overstated the seriousness of the defendant’s criminal
                                                           history
Topic: Defending a Mortgage Fraud Case in
Federal Court - From Pretrial Through                            DOWNWARD DEPARTURES
Sentencing
                                                           Simmons, Denham Hinkle, R. Atty: R. Greenberg
Gainesville: April 21
                                                                    Docket: 4:09cr41
Panama City: April 27                                               Charge: Consp. Dist. > 50 g. Crack, Dist. > 5
Tallahassee: April 28                                                        g. Crack, Poss FA by CF
Pensacola: April 28                                                 Range: 262-327 months (career offender)
                                                                    Sentence: 60 months BOP
                                                                    Date of Imposition of Sentence: 1/15/10
Topic: Federal Drug Sentencing
                                                                    Grounds: 5K1.1 motion & possibly lesser
Panama City: May 11                                        sentences received by codefendants
Gainesville: May 19
Pensacola: May 26                                          Sumrall, Theodore Collier, L. Atty: J. Jenkins
Tallahassee: May 27                                                Docket: 3:08cr75
                                                                   Charge: Obstruction of Justice & Conflict of
                                                                            Interest (39 cts)
Go to www.fpd-fln.org for details.                                 Range: 18 - 24 months
                                                                   Sentence: Probation
                  VARIANCES                                        Date of Imposition of Sentence: 9/22/09
                                                                   Grounds: 5K1.1
Goodman, Tony Paul, M .            Atty: Darren Johnson
          Docket: 1:09cr39                                 Please remember to let us know if any of your
          Charge: Social Security Fraud                    clients are the beneficiaries of a downward
          Range: 18 - 24 months                            departure. W e publish them in hopes of providing
          Sentence: Probation                              a “roadmap” of sorts to help guide others in
          Date of Imposition of Sentence: 2/17/10          securing sentence reductions.
          Grounds: Defendant’s responsibility for caring
for his thirteen year old daughter                                            VICTORIES

Comeger, Steve Vinson, R.    Atty: Tom Keith               In Pensacola, in a complex case prosecuted
      Docket: 1:09cr117                                    by the Tax Division of the U.S. Department
      Charge: Making False Statement on FA App.
                                                           of Justice, Michelle Hendrix won a
      Range: 10 - 16 months
      Sentence: Probation                                  judgment of acquittal from Judge Rodgers for
                                                                                               8

her client, Robert Pendell, who had been         incarceration.
charged in a thirty-two-page indictment with
conspiring to commit wire fraud and money        In Gainesville, in a cocaine conspiracy case,
laundering . The case involved thirteen          Jon Uman won a motion to suppress for his
defendants,     hundreds of thousands of         client, Eric Harris. Jon persuaded Judge Paul
documents, and the trial lasted throughout the   that statements made by Harris in an
month of March. The case had been pending        interview with an Alachua County Sheriff’s
a year-and-a-half, and the Government had        Deputy were part of an effort at plea
predicted a three-month trial. The jury          negotiations and inadmissible under Rule 410
returned guilty verdicts for the other eight     of the Federal Rules of Evidence.
defendants who proceeded to trial.
                                                 Michael Ufferman, in the case of United
Pensacola panel member Sharon Wilson             States v. Martin Moore, convinced the
represented one of the other defendants in the   Government and the Eleventh Circuit Court
trial as did Randall Lockhart of our             of Appeals that the penalty for one of
Pensacola office. They had some notable          Moore’s convictions was not mandatory life
victories along the way, winning favorable       and that Moore should be resentenced.
evidentiary rulings and jury instructions, but
then ultimately lost the battle. Spiro Kypreos   Gwen Spivey of our Tallahassee office,
was involved in much of the pretrial work and    representing Dylan Yonker, convinced Judge
made significant contributions to what was a     Rodgers to vacate Yonker’s magistrate-court
considerable team effort.                        sentence of one year for the offense of assault
                                                 on a law enforcement officer. The sentence
When Kasey Ross appeared in Gainesville for      had been imposed consecutively to a six-
sentencing in his cocaine conspiracy case, the   month sentence for DUI. Gwen successfully
Government argued that the guideline range       argued that there was no factual basis to
was 108 to 135 months. Jerry Sanford,            support the assault charge. The magistrate
though, persuaded Judge Mickle that Ross         judge subsequently dismissed the charge.
was eligible for the safety valve and a
reduction for a minor role, and the Judge        In a case that is still pending on appeal before
sentenced Ross to 57 months.                     the Eleventh Circuit Court of Appeals,
                                                 United States v. Mikola Bowden, Gwen won
Theodore Sumrall, a chemical engineer and        an important concession from the
part owner of a defense contracting firm in      Government. In its brief, the Government,
Okaloosa County was indicted along with two      acknowledged the Supreme Court’s recent
others for obstruction of justice and of 39      holding in Johnson v. United States, 129 S.
counts of having a knowing conflict of           Ct. 998 (2010). It went on to concede that
interest. Upon entering guilty pleas to the      Florida’s offense of battery on a law
charges, he was facing a guideline range of 18   enforcement officer was not, in Bowden’s
to 24 months. Jim Jenkins, however, based        case, a violent felony for purposes of the
largely upon Sumrall’s cooperation with the      Sentencing Guidelines Career Offender
Government, convinced Judge Collier to           provision.
impose a period of probation in lieu of any
                                                                                                            9

In a post-conviction claim, Chet Kaufman of                          CASE SUMMARIES
our Tallahassee office persuaded Judge Hinkle
to vacate the state conviction of his client,            The summaries that follow are prepared by our
                                                         lawyers here in the Federal Public Defender’s
Willie Baker. Baker, who had been convicted              Office. We prepare them daily as the opinions are
of committing a lewd and lascivious assault              issued. If you’d like to receive the daily summaries,
on a child, had been sentenced to nine years in          via e-mail, please call M argaret in our Tallahassee
prison by a Gadsden County Circuit Judge.                office at (850) 942-8818.
Judge Hinkle based his decision on Chet’s
                                                                       Certiorari Granted
argument that the trial judge had erroneously
prevented Baker’s lawyer from questioning                The following are United States Supreme Court
the alleged victim about earlier false claims of         grants of certiorari for the 2002 term that are
sexual abuse and that the state appellate court          relevant to our practice and granted since our last
erred in finding the error harmless.                     newsletter:


Tom Keith of our Pensacola office convinced              BELLEQUE v. MOORE, 2010 WL
Judge Vinson to sentence Steve Comeger to a              1005954 (Mem), No. 09-658 (cert. granted
period of probation in lieu of the 18-24 month           Mar. 22, 2010) (reviewing No. 04-15713 (9th
sentence that had been calculated by the                 Cir. July 28, 2009))
probation office. Comeger, who had entered               AEDPA, coerced confession
guilty pleas to four counts of making false              Issues presented:        (1) Whether the
statements in the course of purchasing                   Fulminante standard — that the erroneous
firearms, testified at the sentencing hearing            admission of a coerced confession at the trial
that he did not know the person for whom he              is not harmless — applies when a collateral
had purchased the guns was a convicted felon.            challenge is based on a defense attorney’s
Tom convinced the Judge that Comeger had                 decision not to move to suppress a confession
testified truthfully and that the four-level             prior to a guilty or no contest plea, even
enhancement for trafficking in firearms was              though no record of a trial is available for
inapplicable. Tom successfully argued, too,              review, and (2) even if it does, is it “clearly
that Comeger should receive a below-                     established Federal law” for purposes of 28
guidelines sentence because Comeger                      U.S.C. § 2254(d)(1).
ultimately chose not to deliver the guns to the
intended purchaser, that the conduct was out-            MICHIGAN v. BRYANT, 2010 WL
of-character for Comeger, and that he had an             680519 (Mem), No. 09-150 (cert. granted
otherwise good background.                               Mar. 1, 2010) (reviewing decision of the
                                                         Michigan Supreme Court)
Please call us, send us a note, or e-mail us at the      Confrontation
Tallahassee office with news of any victories you’ve     Issue Presented: Should certiorari be granted
won. Be it a not guilty verdict or any favorable trial   to settle the conflict of authority as to
outcome, an appellate victory, a winning pre-trial
motion, or a particularly successful sentencing
                                                         whether preliminary inquiries of a wounded
outcome, we’d like to mention it in this newsletter.     citizen concerning the perpetrator and
Please don’t be modest. Think of it as contributing      circumstances of the shooting are
to the esprit de corps of an embattled group of          nontestimonial because “made under
fellow warriors.
                                                         circumstances objectively indicating that the
                                                         primary purpose of the interrogation is to
                                                                                                10

enable police assistance to meet an ongoing        WELTON v. U.S., 2010 WL 1170263
emergency,” that emergency including not           (Mem), No. 09-8367 (Mar. 29, 2010) (GVR)
only aid to a wounded victim, but also the         Sentencing; discretion; career offender
prompt identification and apprehension of an       disparity
apparently violent and dangerous individual?       The Court granted the cert petition, vacated,
                                                   and remanded to the 7th Circuit for
HARRINGTON v. RICHTER, 2010 WL                     reconsideration in light of that circuit’s
596530 (Mem), No. 09-587 (cert. granted Feb.       subsequent reversal of position, which
22, 2010)                                          followed the Solicitor General’s position and
AEDPA, Sixth Amendment                             the Supreme Court’s remand to the Eleventh
Issues presented: (1) In granting habeas           Circuit in Vazquez.
corpus relief to a state prisoner, did the Ninth
Circuit deny the state court judgment the          PADILLA v. KENTUCKY, 2010 WL
deference mandated by 28 U.S.C.§ 2254(d)           1222274, No. 08-651 (Mar. 31, 2010)
and impermissibly enlarge the Sixth                Ineffective assistance, advice about
Amendment right to effective counsel by            deportation
elevating the value of expert-opinion              The Court held that counsel has a duty to
testimony in a manner that would virtually         inform a client whether his plea carries a risk
always require defense counsel to produce          of deportation. (Stevens, 7-2)
such testimony rather than allowing him to
rely instead on cross-examination or other         BERGHUIS v. SMITH, 2010 WL 1189555,
methods designed to create reasonable doubt        No. 08–1402 (Mar. 30, 2010)
about the defendant’s guilt? (2) In addition to    Sixth Amendment “fair cross section”,
the question presented, the parties are directed   AEDPA
to brief and argue the following question: does    The Court (Ginsburg, unanimous) held that
AEDPA deference apply to a state court’s           the Sixth Circuit erred in considering the
summary disposition of a claim, including a        standards by which a fair cross section claim
claim under Strickland?                            can be proved had been clearly established
                                                   Federal law, as determined by the Supreme
           Supreme Court Cases                     Court of the United States, such that the
                                                   denial of relief in the state courts constituted
U.S. v. STEVENS, 2010 WL 1540082, No.              an unreasonable determination of the facts in
08-769 (Apr. 20, 2010)                             light of the evidence presented in the State
First Amendment                                    court proceeding. The Court said that neither
The Court held 18 U.S.C. § 48 is facially          Duren v. Missouri nor any other decision of
unconstitutional because Congress’s                the Court specifies the method or test courts
criminalizing portrayals of certain depictions     must use to measure under-representation.
of animal cruelty was overbroad. Not all acts      Thomas concurred saying that he would like
under the act required “cruelty,” and videos of    to reexamine the question of whether the
acts might be lawful where taken but unlawful      Sixth Amendment created a fair cross section
if found in other jurisdictions. (Roberts, 8-1)    requirement.
                                                                                                     11

BLOATE v. U.S., 130 S. Ct. 1345, No. 08-            FLORIDA v. POWELL, 130 S. Ct. 1195,
728 (Mar. 8, 2010)                                  No. 08-1175 (Feb. 23, 2010)
Speedy Trial Act                                    Miranda
The Speedy Trial Act, 18 U. S. C. § 3161 et         The Court held that the precise wording of
seq., requires that a criminal defendant’s trial    the warnings in the Miranda opinion are not
commence within 70 days after he is charged         strictly required so long as the warnings
or makes an initial appearance, whichever is        themselves were reasonably conveyed.
later, and entitles him to dismissal of the         (Ginsburg, 7-2)
charges if that deadline is not met. The Act,
however, excludes from the 70-day period            THALER v. HAYNES, 130 S. Ct. 1171,
delays “resulting from a continuance” granted       No. 09-273 (Feb. 22, 2010)
by the district court if the district court makes   Habeas, Batson
the necessary findings. The Court held that         The Court held that no Supreme Court case
the time granted to prepare pretrial motions is     clearly establishes that a judge, in ruling on
not automatically excludable from the 70-day        an objection to a peremptory challenge, must
limit under § 3161(h)(1). Such time may be          reject a demeanor-based explanation unless
excluded only when a district court grants a        the judge personally observed and recalls the
continuance based on appropriate findings.          aspect of the prospective juror’s demeanor on
(Thomas, 7-2)                                       which the explanation is based. (Per Curiam)

JOHNSON v. U.S., 130 S. Ct. 1265, No. 08-
6925 (Mar. 2, 2010)                                       Selected Eleventh Circuit Case
Prior violent felony under ACCA                                     Summaries
The Court held that the Florida felony offense
of battery by “[a]ctually and intentionally         The following are selected opinions from the 11 th
touch[ing]” another person does not have “as        Cir. that have been issued since our last newsletter:

an element the use. . . of physical force against
the person of another,” §924(e)(2)(B)(i),and        U.S. v. CREPE, No. 09-12470 (11th Cir.
thus does not constitute a “violent felony”         Apr. 21, 2010)
under the ACCA. (Scalia, 7-2)                       Insanity acquittees
                                                    An insanity acquittee was released from a
MARYLAND v. SHATZER, 130 S. Ct.                     mental health facility after treatment.
1213, No. 08-680 (Feb. 24, 2010)                    Pursuant to 18 U.S.C. § 4243(f), a person is
Miranda                                             conditionally discharged under a prescribed
The Court created an exception to Edwards v.        regimen of medical treatment. As an added
Arizona, holding that a presumption of              condition of that release, the court forbade
involuntariness does not apply when police re-      Crape from sending any more threatening
interrogate a suspect more than 14 days after       letters. When Crape later mailed a letter
the suspect invoked his Fifth Amendment             threatening to kill several teenagers, so the
right by asking for a lawyer. (Scalia, 9-0 on       court revoked his conditional discharge
result but 7-2 on the arbitrary 14-day rule)        pursuant to § 4243(g). The Court (Kravitch
                                                    w/Dubina & Edenfield, specially concurring),
                                                    conflicting with sister courts, held that the
                                                    district court had no authority to impose the
                                                                                                12

added condition, and it erred by revoking his     freedom of action to have been curtailed to a
discharge.   The Court refused to treat           degree associated with formal arrest.
conditional discharge under § 4243 as an
analogue of supervised release under 18           POWELL v. ALLEN, 2010 WL 1381649
U.S.C. § 3583.                                    (Apr. 8, 2010)
                                                  Capital habeas; jury composition; grand
U.S. v. FOWLER, 2010 WL 1459771 (Apr.             jury foreperson; jury selection
14, 2010)                                         The Court (PC w/ Black, Barkett, Marcus)
Evidence; sufficiency; murder; 18 USC             affirmed the denial of relief to a pro se capital
1512; federal nexus                               defendant. The process for selecting the
The Court (Barkett w/Edmondson & Roth)            grand jury foreperson did not violate the
found sufficient evidence to support the          Equal Protection Clause because in cases
conviction of murder with the intent to           before this trial judge, African-Americans
prevent a person from communicating               were over-represented as grand jury
information about a federal offense to a          forepersons,. There was no basis for finding
federal law enforcement or judge, in violation    that the jury composition process violated the
of 18 USC 1512(a)(1)(C). The defendant            Sixth Amendment, based on the practice of
argued there was no evidence to prove the         selecting this capital jury from a venire which
federal nexus to the killing of a local police    had already been diminished by jury selection
officer who happened onto a robbery attempt.      for other cases, given the absence of any
The Court concluded that nothing in the           allegation that this resulted in a non-
statute required proof that a federal             representative venire. The defendant also
investigation is “ongoing, imminent, or           failed to establish a prima facie case of racial
likely.”                                          discrimination during jury selection to
                                                  support a Batson claim. And the trial court
U.S. v. LUNA-ENCINAS, 2010 WL                     did not err by asking only one question to the
1441105 (Apr. 13, 2010)                           entire pool about racial attitudes in a racially-
Suppression; statements; Miranda; custody         charged (i.e., black defendant, white victim)
The Court (Marcus w/Black & Higginbotham)         capital case.
held that although the defendant had been
“seized,” he was not in custody for Fifth         U.S. v. COAST, 2010 WL 1266800 (Apr. 5,
Amendment purposes and therefore his              2010)
inculpatory statements were admissible. A         Criminal history points calculation
reasonable person in the defendant’s situation    The Court (Barkett, w/Birch & Kravitch)
would not have understood his detention to be     held that USSG § 4A1.2(k)(1) should be used
anything other than “temporary and brief,”        when the original sentence would have been
particularly given officers’ assurances that he   excluded under USSG § 4A1.2(c)(1) where
was not the person they were seeking and the      the application is made following the
fact that officers never pointed their weapons    revocation of probation and a revocation
at him. The Court explained that the “free to     sentence greater than thirty days
leave” inquiry relates only to the question of    imprisonment even where the original
seizure, not custody, which requires that a       offense was driving with a suspended license
reasonable person would have understood his       and the original sentence was probation.
                                                                                                 13

U.S. v. JONES, 2010 WL 1254351 (Apr. 2,            U.S. v. VAZQUEZ, 2010 WL 1223884
2010)                                              (Mar. 31, 2010), consolidated with U.S. v.
Speedy Trial Act; double jeopardy; past            De La CRUZ SUAREZ, 2010 WL 1223884
recollection recorded; Confrontation;              (Mar. 31, 2010)
Jencks; Brady                                      Alien smuggling; wiretapping, sentencing
The Court ( Martin w/Tjoflat & Pryor) held          The Court (Goldberg w/Carnes & Hull), held
the Speedy Trial Act was violated by two           (1) defendant failed to show that his due
periods of non-excludable delay. The period        process or compulsory process rights were
at issue here was the district court’s delay in    violated when the government repatriated the
deciding a motion as to two counts, which did      migrants on his boat before he was able to
not require a hearing, and that period             question them about the offenses committed;
exceeded the maximum allowable 30 days by          (2) FBI special agent’s testimony supported
44 days. The two counts being retried must be      electronic surveillance; (3) the government
dismissed. Subsequently added counts need          complied with the minimization requirement
not be dismissed because double jeopardy           for electronic surveillance; (4) the district
required the joining of all four counts, and the   court had jurisdiction, even though the
speedy trial clock ran from the date of his        interdiction occurred on the high seas, some
initial arraignment, not the superseding           40 miles off the Florida coastline; (5) the
indictment. Also, the Court denied the claim       district court did not abuse its discretion in
of prosecutorial vindictiveness in adding the      denying second defendant’s motion for
new counts on remand. The Court upheld             mistrial based on improper prosecutorial
admission of a videotape of an alleged             vouching; (6) the district court did not clearly
accomplice as past recollection recorded under     err in applying the “special skills” sentencing
FRE 803(5) and did not violate the                 enhancement based on defendants’ ability to
Confrontation Clause. The Court also found         pilot high-speed boats and/or perform
Jencks Act and Brady violations were               mechanical work on boats; (7) the district
harmless.                                          court did not commit impermissible
                                                   double-counting in applying both the
U.S. v. SANTIAGO, 2010 WL 1253554                  enhancement for substantial risk of death and
(Apr. 2, 2010)                                     the enhancement for reckless endangerment
ACCA                                               during flight; (8) the district court did not err
The Court (Anderson, w/ Carnes & Hull) held        in applying the enhancement for substantial
that a guilty plea followed by a sentence of       risk of death to third defendant, despite his
probation and withheld           adjudication      alleged lack of personal involvement in
constitutes a conviction under Florida law for     certain parts of the smuggling operation; and
the purpose of enhancing a defendant’s             (9) second defendant’s sentence was
sentence pursuant to 18 U.S.C. § 924(e), and       substantively reasonable.
that successful completion of probation on the
Florida offense for which adjudication was         U.S. v. SNEED, 2010 WL 1050272 (Mar.
withheld is immaterial to whether that offense     24, 2010)
can be used to enhance a defendant’s sentence      ACCA priors committed on different
under the Armed Career Criminal Act.               occasions
                                                   Sneed pleaded guilty to some felonies and
                                                                                                 14

was told he would qualify for ACCA                   downward departure sentences (264/216
treatment based on three priors. The timing of       months for first offenders) were still
the priors was not mentioned in the plea             substantively unreasonable.
proceedings but first arose in facts the
probation officer reported in the PSR, which         U.S. v. FRANK, 2010 WL 890451 (Mar. 15,
did not state its sources. Sneed objected to the     2010)
PSR as violating Shepard. The Government             Miranda in extraterritorial application;
responded with (1) the charging docs which           jury instructions; sentencing; pros.
said nothing about the time the priors were          misconduct
committed, and (2) police reports that               The Court (Wilson w/Marcus & Restani)
contained the details. The district court            affirmed a conviction for traveling to
applied the ACCA, but the Court (Hull, with          Cambodia to engage in paid sex with
Wilson & Faris) reversed, holding that               underage girls and to make photographic
Shepard abrogated Richardson (11th Cir.              images in the process, holding (1) statements
2000), which had allowed courts to rely on           to Cambodian police were not inadmissible
police reports to determine whether offenses         due to Cambodian officers’ failure to give
were committed on ‘occasions different from          defendant Miranda warnings; (2)statute
one another.’                                        prohibiting buying of children applied
                                                     extraterritorially to reach defendant’s conduct
U.S. v. JENNINGS, 2010 WL 916662 (Mar.               in Cambodia; (3) evidence was sufficient; (4)
16, 2010)                                            “purchase,” as used in statute prohibiting
Evidence; mail/wire fraud; money                     purchasing of minors in order to produce
laundering; downward departure                       sexually explicit visual depictions of them,
The Court (Higginbotham w/Black & Marcus)            covers situations where defendant pays minor
found no abuse of discretion in admitting            directly for sex; (5) even if there was no
expert witness testimony based on years of           evidence of penetration or intentional
experience in field, including things learned        touching with intent to arouse or gratify
from communications with others in the field.        sexual desire, such fact did not preclude
The Court found no error in the denial of a          District Court from instructing jury on
mistrial after a government witness                  definition of “sexual act”; (6) no reversible
volunteered that he and one defendant were           prosecutorial misconduct.
currently involved in civil litigation, especially
given the defendant refused a curative               U.S. v. DAVIS, 2010 WL 810984 (Mar. 11,
instruction.     The Court rejected one              2010)
defendant’s challenge to his fraud convictions       No exclusionary rule in retroactive
because his knowledge of the illegality of the       application of Arizona v. Gant
scheme was a credibility dispute which he lost       The Court (Kravitch w/Barkett & Tjoflat)
before the jury. His challenge to the money          held that the exclusionary rule does not apply
laundering conviction was rejected because           when officers conducted a search that was
circuit precedent had already limited the            valid under Belton as applied in the 11th
Supreme Court’s 2009 Santos, decision to             Circuit (Gonzales) even though that
illegal gambling profits. The Court rejected         precedent was later overruled by Arizona v.
the arguments of both appellants that their          Gant because the good faith exception
                                                                                                15

applies to a search that was valid when            32.2(b)(1) applied to make forfeiture
conducted under then-binding precedent.            mandatory, not discretionary.

U.S. v. TERNUS, 2010 WL 797167 (Mar. 10,           U.S. v. DODGE, 597 F.3d 1347 (Mar. 5,
2010)                                              2010) (en banc)
Transport of stolen property in interstate         SORNA
commerce                                           The Court (Wilson, en banc, 11-0) held that
In a case about stolen art, Ternus claimed that    SORNA’s broad definition of “sex offense”
the foreign commerce element in 18 U.S.C. §        encompasses Dodge’s conviction of
2314 is “jurisdictional” and was not               transferring obscene material to a minor in
established, but the Court (Carnes, w/ Birch &     violation of 18 U.S.C. § 1470, and therefore
Kravitch) held that his guilty plea waived his     SORNA required Dodge to register. His
claim. Ternus also argued, in the absence of       conduct involved “‘sitting in front of a
an objection, that the district court erred in     computer with a camera pointed at [his]
accepting his guilty plea because there was no     private parts,’ while thinking he was talking
evidence in the record that he intended the        to a thirteen-year-old girl.” The Court
stolen paintings be transported to the United      refused to apply a limited “categorical
States, but the Court found that the factual       approach.” Barkett concurred in the result
proffer included sufficient facts to support the
conspiracy conviction, and that the                U.S. v. ROZIER, 598 F.3d 768 (Mar. 4,
government is not required to prove that the       2010)
stolen goods were actually transported in          Second Amendment
foreign commerce.                                  The Court (PC w/ Wilson, Cox & Restani)
                                                   held that the Second Amendment defined in
U.S. v. BRUMMER, 2010 WL 760666 (Mar.              Heller does not prohibit prosecution under §
8, 2010)                                           922(g)(1) for possession of a firearm and
Firearms forfeiture                                ammunition by a convicted felon.
Brummer was convicted of knowingly and
willfully failing to declare firearms to a         U.S. v. BACON, 598 F.3d 772 (Mar. 4,
common carrier in violation of 18 U.S.C. §         2010)
922(e), and was ordered to forfeit firearms and    Plain error; drug quantity in conspiracy
ammunition under 18 U.S.C. § 924(d)(1). He         The Court (PC w/ Tjoflat, Barkett &
argued that § 924(d)(1) does not apply to          Kravitch) held that “when a defendant is
violations of § 922(e), or, in the alternative,    convicted of participating in a drug-
that the district court may in its discretion      trafficking conspiracy under 21 U.S.C. § 846,
refuse to order forfeiture under § 924(d)(1).      the court must sentence the defendant based
The Court rejected his arguments (PC w/Black       on an individualized finding, supportable by
Carnes & Pryor), holding that “willfulness is      a preponderance of the evidence, as to the
an element of the offense under § 922(e)” and      drug quantity foreseeable by that defendant.”
therefore fits under the “willful violation of     As such, the district court had plainly erred in
any other provision of this chapter” clause of     relying on a special jury verdict as to the drug
§ 924(d)(1). The Court also held that 28           quantity attributable to the conspiracy when
U.S.C. § 2461(c) and Fed. R. Crim P.               it sentenced one of the conspirators.
                                                                                                16

WILLIAMS v. ALLEN, 598 F.3d 778 (Mar.              Anderson) affirmed the conviction of an
4, 2010)                                           Alabama lawyer who bought a gun shortly
Capital habeas; ineffective assistance of          after being served with a domestic violence
law; invalid state defense                         protective order and denied on the Form
The Court (Wilson w/Tjoflat & Black)               4473 that he was “subject to a court order
affirmed the district court’s denial of habeas     restraining you from harassing, stalking, or
relief to a capital defendant, rejecting           threatening your child or an intimate partner
arguments that trial counsel was ineffective, in   or child of such partner.” The Court held that
part because of allegedly presenting an            a protective order did not have to contain
insanity defense that was invalid under state      precise prohibitory language specified in
law.                                               firearm statute for the defendant to be
                                                   convicted of unlawfully possessing firearm
U.S. v. CULVER, 598 F.3d 740 (Mar. 2,              while he was subject to protective order.
2010)                                              Second, the state court did not err in
Child Pornography; jurisdiction; evidence;         declining to accept the transcript of the entire
victim’s sexual history; 720-month sentence        underlying proceeding instead of relevant
OK                                                 excerpts. Finally, the Court declined to
The Court (Dubina w/Tjoflat & Bowen)               consider the merits of challenges to the
affirmed defendant’s convictions for               validity of the underlying state court order,
production of child pornography after              holding that could be used to collaterally
drugging and stunning (with a stun gun) his        attack the 922(g)(8) prosecution.
13-year-old stepdaughter. The Court held the
CPPA is constitutional as applied to               U.S. v. WHITSON, 597 F.3d 1218 (Feb. 24,
defendant’s production of an 8mm video. The        2010)
Court rejected defendant’s argument that his       Career offender, conspiracy prior
acquittal in state court on charges of using a     The Court (PC w/ Edmondson, Pryor &
stun gun on his stepdaughter precluded the         Camp) held that a prior conviction for non-
Government’s use of this evidence under Rule       overt act criminal conspiracy is not a “crime
404(b). The Court also rejected defendant’s        of violence” for career offender guidelines
argument that he should have been allowed to       purposes.
introduce evidence of his stepdaughter’s prior
sexual history to support his argument that the    U.S. v. PHILLIPS, 597 F.3d 1190 (Feb. 23,
evidence found under her bed (condoms and          2010)
other paraphernalia) was not placed there by       Rule 35(a); § 3582(c)(2)
him. Also, the 720-month sentence was not          The Court (Hull, w/ Carnes & Anderson)
substantively unreasonable.                        ruled for a defendant in holding that Rule
                                                   35(a)’s seven-day time limit for correcting
U.S. v. DUBOSE, 598 F.3d 726 (Mar. 1,              errors in sentences applies to a reduced
2010)                                              sentence stemming from § 3582(c)(2)
18 U.S.C. § 922(a)(6),(g)(8); domestic             proceedings.
violence protective order; can’t challenge
state order
The Court (PC w/Tjoflat, Wilson &
                                                                                            17

U.S. v. DURAN, 596 F.3d 1283 (Feb. 16,           Arnold v. McNeil, 622 F. Supp. 2d 1294
2010)                                            (M.D. Fla. 2009) (Corrigan, J.), which held
Evidence; 18 U.S.C. §§ 371, 951; vagueness;      (1) prisoner sufficiently exhausted claim; (2)
lack of knowledge as defense; hearsay;           no deferential review in addressing Brady
404(b)                                           claim; (3) evidence of officer’s criminality
The Court (Wilson w/Anderson & Restani)          would have been favorable to defense, as
affirmed the conviction of the co-owner of       required to establish Brady violation; (4)
Venezuala’s largest private petro-chemical       evidence of officer’s criminality could not
enterprise (which is heavily dependent upon      have been in defendant’s possession at time
the Chavez government’s monopoly), for           of trial, as required to establish Brady
acting as an agent of a foreign government       violation; (5) evidence of officer’s criminal
inside the US without prior notice to the AG.    wrongdoing could be imputed to prosecution;
The Court held that 18 U.S.C. § 951 is not       and (6) there was reasonable probability that
unconstitutionally vague as applied. Evidence    had evidence of officer’s criminal
of Duran’s lack of knowledge was properly        wrongdoing been revealed to defense,
excluded, as was evidence of Duran’s state of    outcome of proceeding would have been
mind under that FRE 803(3) exception to the      different, as supported Brady claim.
hearsay rule. The Government was properly
allowed to introduce 404(b) evidence of          GREEN v. NELSON, 595 F.3d 1245 (Feb.
Duran’s payment of kickbacks to other            4, 2010)
government officials in South America, in part   Ineffective assistance, sufficiency
to counter his belated claim of entrapment.      A Georgia inmate had been convicted of
Finally, the Government’s closing argument       aggravated sodomy and rape, and he argued
related to the 404(b) evidence was probably      ineffectiveness for failing to move to
improper propensity evidence but harmless.       suppress blood and DNA evidence on the
                                                 ground that this evidence was obtained based
U.S. v. PATTERSON, 595 F.3d 1324 (Feb.           on a false affidavit. The Court (Barkett w/
8, 2010)                                         Tjoflat & Barzilay) found no prejudicial
Sentencing; loss & restitution amounts           error under Strickland because other correct
The Court (Wilson w/Edmondson & Birch)           information in the affidavit would have
held that a district court may sentence a        sufficed to establish probable cause. But the
defendant under a Sentencing Guidelines          Court agreed with that the evidence of
calculation of intended loss that was more       aggravated sodomy was insufficient to
than double the amount of restitution ordered    support a conviction because there was no
in the same case.                                evidence of penis-anal contact as had been
                                                 alleged.
ARNOLD v. SEC’Y, DOC, 595 F.3d 1324
(Feb. 8, 2010)                                   U.S. v. HOLMES, 595 F.3d 1255 (Feb. 4,
Brady, Government appeal of habeas grant         2010)
denied                                           Aggravated identity theft
The Court (PC w/Barkett, Pryor, Fay)             The Court (PC w/ Carnes, Marcus & Pryor)
summarily rejected the Government’s appeal       rejected a sufficiency challenge to a
of a habeas grant and adopted the opinion of     conviction of aggravated identity theft in
                                                                                              18

violation of 18 U.S.C. § 1028A(a)(1). The         endangerment, USSG § 2L1.1(b)(6),
defendant argued that there was insufficient      leadership/organizer involving at least five
evidence that she knew the person whose           participants, USSG § 3B1.1(a), and denying
identity Holmes fraudulently used, Overton,       acceptance of responsibility, USSG
was an “actual person.” Holmes’ willingness       § 3E1.1(a), even though after trial he wrote a
to subject personal information of Overton to     letter to the Probation Office accepting
scrutiny established that Holmes knew the         responsibility.
information belonged to a real person. Also,
Holmes would have known Overton’s actual          THOMPSON v. SECRETARY, DOC, 595
existence from the repeated successful use of     F.3d 1233 (Jan. 27, 2010)
her personal information to obtain a passport,    AEDPA, statute of limitations, tolling 28
a driver’s licence, and identification cards.     U.S.C. § 2422(d)(2)
                                                  Thompson filed two state habeas petitions –
U.S. v. CARABALLO, 595 F.3d 1214 (Jan.            in September 2004 in Florida’s Eighth
27, 2010)                                         Judicial Circuit and in December 2005 in
Fourth Amendment, public records                  Florida’s First District Court of Appeals.
hearsay exception, guidelines                     The Eighth Judicial Circuit denied his 2004
Caraballo was charged with alien smuggling        habeas petition on the ground that his claims
where aliens were found aboard his boat. The      should have been brought in a Rule 3.850
district court found an officer had reasonable    motion; and his habeas was summarily
suspicion under the totality of the               dismissed. In federal court, his § 2254
circumstances (see opinion) to find that          motion was thrown out upon a finding that
Caraballo and his co-defendants were              his 2004 and 2005 state petitions were not
violating the Florida fisheries laws to make an   “properly filed.” The Court reversed (PC
initial stop of a fishing boat. Even if such      w/Dubina, Birch & Black), because the state
suspicion were lacking, it was a consensual       habeas petition met the state procedural and
encounter. Upon questioning, the officer          filing requirements on its face as a state
learned earning the men aboard had no fishing     habeas petition.        The Court followed
license. The exigency (possible unlawful          Supreme Court decisions distinguishing
catch being disposed of or removed) required      initiation of a petition from a court’s ability
no warrant. A permissible protective sweep        to consider that petition.
opened the cabin door where the aliens were
hidden in plain sight. The Court (Marcus, w/      ARNAIZ v. WARDEN, 594 F.3d 1326 (Jan.
Wilson & Restani) found no Fourth                 26, 2010)
Amendment violation.          The Court also      Restitution; appeal; habeas; 2255 v. 2241
rejected Caraballo’s claim that it was error to   The Court (PC w/ Edmondson, Birch & Cox)
allow the Government to introduce the first       held that a prisoner currently in custody
page of the aliens’ I-213 forms (taken from       cannot collaterally attack just the restitution
their A-Files) because they fit within the        part of his sentence by seeking a writ of
public records hearsay exception and              habeas corpus.
contained no testimonial evidence. Finally,
the Court rejected his argument that district
court clearly erred in finding reckless
                                                                                                                                  19

         TABLE OF CASES IN THIS ISSUE                               ARNOLD v. SEC’Y, DOC, 595 F.3d 1324
                                                                         (Feb. 8, 2010).. . . . . . . . . . . . . . . . . . . . 17

                    Supreme Court                                   GREEN v. NELSON, 595 F.3d 1245
                                                                         (Feb. 4, 2010).. . . . . . . . . . . . . . . . . . . . 17
BELLEQUE v. M OORE,
     2010 W L 1005954 (Mem), No. 09-658                             POW ELL v. ALLEN, 2010 W L 1381649
     (cert. granted Mar. 22, 2010). . . . . . . . . . . 9                 (Apr. 8, 2010). . . . . . . . . . . . . . . . . . . . 12

BERGHUIS v. SM ITH,                                                 THOM PSON v. SECRETARY, DOC,
     2010 W L 1189555, No. 08–1402                                        595 F.3d 1233 (Jan. 27, 2010). . . . . . . . 18
     (Mar. 30, 2010). . . . . . . . . . . . . . . . . . . . 10
                                                                    U.S. v. BACON, 598 F.3d 772 (Mar. 4, 2010). . 15
BLOATE v. U.S., 130 S. Ct. 1345,
     No. 08-728 (Mar. 8, 2010). . . . . . . . . . . . 11            U.S. v. BRUM M ER, 2010 W L 760666
                                                                             (Mar. 8, 2010). . . . . . . . . . . . . . . . . . . . 15
FLORIDA v. POW ELL, 130 S. Ct. 1195,
      No. 08-1175 (Feb. 23, 2010). . . . . . . . . . 11             U.S. v. CARABALLO, 595 F.3d 1214
                                                                             (Jan. 27, 2010). . . . . . . . . . . . . . . . . . . . 18
HARRINGTON v. RICHTER,
     2010 W L 596530 (M em),                                        U.S. v. COAST, 2010 W L 1266800
     No. 09-587 (cert. granted Feb. 22, 2010). 10                            (Apr. 5, 2010). . . . . . . . . . . . . . . . . . . . 12

JOHNSON v. U.S., 130 S. Ct. 1265,                                   U.S. v. CREPE, No. 09-12470 (Apr. 21, 2010).                   11
     No. 08-6925 (Mar. 2, 2010). . . . . . . . . . . 11
                                                                    U.S. v. CULVER, 598 F.3d 740 (Mar. 2, 2010). 16
M ARYLAND v. SHATZER, 130 S. Ct. 1213,
      No. 08-680 (Feb. 24, 2010). . . . . . . . . . . 11            U.S. v. DAVIS, 2010 W L 810984
                                                                             (Mar. 11, 2010). . . . . . . . . . . . . . . . . . . 14
M ICHIGAN v. BRYANT,
      2010 W L 680519 (M em),                                       U.S. v. De La CRUZ SUAREZ,
      No. 09-150 (cert. granted Mar. 1, 2010). . 9                           2010 W L 1223884 (Mar. 31, 2010). . . . 13

PADILLA v. KENTUCKY, 2010 W L 1222274,                              U.S. v. DODGE, 597 F.3d 1347 (Mar. 5, 2010). 15
      No. 08-651 (Mar. 31, 2010). . . . . . . . . . . 10
                                                                    U.S. v. DUBOSE, 598 F.3d 726 (Mar. 1, 2010). 16
THALER v. HAYNES, 130 S. Ct. 1171,
     No. 09-273 (Feb. 22, 2010). . . . . . . . . . . 11             U.S. v. DURAN, 596 F.3d 1283 (Feb. 16, 2010). 17

U.S. v. STEVENS, 2010 W L 1540082,                                  U.S. v. FRANK, 2010 W L 890451
         No. 08-769 (Apr. 20, 2010). . . . . . . . . . . 10                  (Mar. 15, 2010). . . . . . . . . . . . . . . . . . . 14

W ELTON v. U.S., 2010 W L 1170263 (M em),                           U.S. v. FOW LER, 2010 WL 1459771
      No. 09-8367 (Mar. 29, 2010). . . . . . . . . . 10                      (Apr. 14, 2010). . . . . . . . . . . . . . . . . . . 12

                                                                    U.S. v. HOLM ES, 595 F.3d 1255
                     Eleventh Circuit                                        (Feb. 4, 2010).. . . . . . . . . . . . . . . . . . . . 17

ARNAIZ v. W ARDEN, 594 F.3d 1326                                    U.S. v. JENNINGS, 2010 W L 916662
      (Jan. 26, 2010). . . . . . . . . . . . . . . . . . . . . 18            (Mar. 16, 2010). . . . . . . . . . . . . . . . . . . 14
                                                                       20

U.S. v. JONES, 2010 W L 1254351
         (Apr. 2, 2010). . . . . . . . . . . . . . . . . . . . . 13

U.S. v. LUNA-ENCINAS, 2010 W L 1441105
         (Apr. 13, 2010). . . . . . . . . . . . . . . . . . . . 12

U.S. v. PATTERSON, 595 F.3d 1324
         (Feb. 8, 2010).. . . . . . . . . . . . . . . . . . . . . 17

U.S. v. PHILLIPS, 597 F.3d 1190
         (Feb. 23, 2010).. . . . . . . . . . . . . . . . . . . . 16

U.S. v. ROZIER, 598 F.3d 768 (M ar. 4, 2010).. . 15

U.S. v. SANTIAGO, 2010 W L 1253554
         (Apr. 2, 2010). . . . . . . . . . . . . . . . . . . . . 13

U.S. v. SNEED, 2010 W L 1050272
         (Mar. 24, 2010). . . . . . . . . . . . . . . . . . . . 13

U.S. v. TERNUS, 2010 W L 797167
         (Mar. 10, 2010). . . . . . . . . . . . . . . . . . . . 15

U.S. v. VAZQUEZ, 2010 W L 1223884
         (Mar. 31, 2010). . . . . . . . . . . . . . . . . . . . 13

U.S. v. WHITSON, 597 F.3d 1218
         (Feb. 24, 2010).. . . . . . . . . . . . . . . . . . . . 16

W ILLIAM S v. ALLEN, 598 F.3d 778
       (Mar. 4, 2010). . . . . . . . . . . . . . . . . . . . . 16

				
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