Motion to Suppress - Review Standard;
Appellate Review - Affirm on Other Grounds;
Search - Inevitable Discovery
United States v. White, 02-2118 (April 8, 2003)
White was convicted of felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He appeals the denial of his motion to suppress the discovery of his status as a convicted felon following an unlawful arrest. The district court refused to suppress White's identity, relying upon Lopez-Mendoza (S.Ct.), and refused to suppress the gun, concluding that officers saw the gun when they lawfully entered the apartment, and exigent circumstances gave the officers probable cause to seize it. In connection with a brief investigatory detention to determine whether a tip about drug activity was valid, and after seeing White holding a gun which nobody in the apartment was authorized to possess, police asked his name, he promptly gave it to them, they ran an NCIC check on it, and determined there was an outstanding warrant. He was arrested for both illegally obtained cocaine and the warrant. At that point, police were completely unaware of the fact that White had a prior felony conviction. After being booked, the police determined that he had a prior felony conviction.
HELD: (1) When reviewing the denial of a motion to suppress, the court reviews the district court's fact findings for clear error, its conclusions of law de novo, and views the evidence in the light most favorable to the prevailing party.
(2) The circuit can affirm on a different basis from the district court.
(3) Under the inevitable discovery doctrine, even if the initial search and arrest was unlawful, the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means. The government has the burden of proving by a preponderance that the evidence in question would have been discovered in the absence of the Fourth Amendment violation.
(4) The government had authority to run White's name through the NCIC database. An NCIC check on White would have revealed his outstanding arrest warrants. Once the NCIC check revealed the outstanding warrant, White would have been lawfully arrested and booked. It can hardly be said that police exploited an illegal search to obtain White's identity and eventually information on his prior conviction. The purpose of the exclusionary rule is in no way compromised by refusing to suppress information obtained from public records.
Witnesses - Expert;
Affirmative Defense - Mental Disease or Defect (18 U.S.C. § 17), Negate Specific Intent;
Admission of Evidence - Discretion, Psychological Evidence
United States v. Brown, 02-8035 (April 15,2003)
Brown moved to obtain a psychological examination. He submitted notice that he intended to rely upon insanity as a defense and intended to present expert testimony. The government sought an order to compel Brown to submit to a psychiatric and medical examination conducted by the Bureau of Prisons. The district court granted the government's motion. Brown was rearraigned and entered pleas of not guilty by reason of mental illness or disease. The district court held a competency hearing, and found that Brown was competent to stand trial. Then the government moved to exclude testimony concerning an alleged mental disease or defect. Brown responded that he intended to use psychological testimony to show he could not form the necessary mens rea. The district court determined that the proposed testimony was inadmissible. Brown then entered a conditional plea so as to be allowed to appeal this question.
HELD: (1) The court reviews the district court's exclusion of expert testimony for an abuse of discretion. It is an affirmative defense that, at the time of commission of the acts, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality of the wrongfulness of his acts. 18 U.S.C. § 17. In enacting that statute, Congress eliminated the volitional branch of the American Law Institute Model Penal Code test, and all other affirmative defenses or excuses based upon mental disease or defect. Psychological or psychiatric evidence that negates the essential element of specific intent can be admissible. But the testimony Brown sought to introduce did not address either the standard in § 17 or his intent or lack thereof. This evidence was inadmissible psychological evidence.
Appellate Review - Affirm on Other Grounds;
Indictment - Sufficiency;
Travel Act - Specific Intent, State Bribery Statute;
Statutory Construction - Void for Vagueness;
Mail Fraud - Elements, Inflict Economic Harm, Intent to Defraud, Honest Services;
Wire Fraud
United States v. Welch and Johnson, 01-4170, 01-4241 (April 22, 2003)
Welch and Johnson were President and Senior Vice President of the Salt Lake City Bid Committee for the 2002 Olympic Winter Games (SLBC). One of the primary duties of individual International Olympic Committed (IOC) members was to cast votes to elect the host city for the Olympic games.
A federal grand jury indicted Welch and Johnson on 15 bribery related counts, conspiracy to defraud the United States, Travel Act, mail and wire fraud charges. The district court dismissed the Travel Act counts and then dismissed the other counts based on that dismissal. The government appeals. The circuit reversed and remanded.
HELD: (1) The circuit may affirm on any grounds supported by the record.
(2) The circuit reviews the sufficiency of the indictment and issues of statutory interpretation de novo. An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice, and enables the defendant to assert a double jeopardy defense.
(3) Congress enacted the Travel Act as part of a legislative program directed against organized crime. It imposes sanctions upon one whose work takes him across state lines in aid of certain unlawful activities. The elements of a Travel Act violation are travel in interstate or foreign commerce, or use of the mail in interstate or foreign commerce with intent to promote or establish any unlawful activity, and performance of or an attempt to perform an act of promotion, management, establishment or carrying on of an enumerated unlawful activity. 18 U.S.C. § 1952. In Perrin, the Supreme Court held that Congress intended the Travel Act to encompass conduct in violation of state commercial bribery statutes. The district court perceived the indictment as the federal government's attempt to assert jurisdiction over a matter of purely state and local concern. But this prosecution is very much a matter of federal concern for the Olympic games, Salt Lake City, Utah and the United States.
(4) The Utah bribery statute is not unconstitutionally vague. In reviewing a vagueness challenge, courts begin with a presumption that the statute comports with the requirements of federal due process.
(5) The Travel Act requires specific intent. A person acts purposely if he consciously desires that his conduct bring about a particular result, whatever the actual likelihood of that result. The Travel Act requires a defendant to act, not only with knowledge of what he is doing, but also with the objective of promoting some unlawful activity. A vagueness challenge to a penal statute based on insufficient notice rarely succeeds when the requisite mental state is one of purpose or specific intent. The statutory definition of unlawful activity, related to the Utah bribery statute, on which the indictment's Travel Act counts rely, conveyed sufficiently clear warning to the defendants of the criminal nature of their alleged conduct.
(6) Federal law, not Swiss law, governs whether the alleged conduct violated the Travel Act.
(7) Consistent with the Travel Act, the court looks to Utah law to provide the federal definition of bribery in this case. The question of whether the requisite relationship existed between the IOC and its members in terms of principal and agent would be left to the jury to decide. Having concluded that the Utah bribery statute is a valid predicate for the Travel Act violations, the circuit also reversed the district court's decision to dismiss the mail and wire fraud counts. Mail fraud requires a scheme or artifice to defraud, an intent to defraud, and use of the mails. Wire fraud has the same elements except use of interstate wire or radio communications to execute the scheme. An intent to inflict economic harm is not a necessary element, though proof of contemplated or actual harm is one means of establishing the necessary intent to defraud. Intent to defraud is akin to the intent to deceive in order to deprive one of property or honest services. Nor is there any element of an intent to achieve personal gain. The circuit refused to adopt the Seventh Circuit's Bloom pleading requirements in the context of honest services fraud. That the indictment alleges that the defendant's had an intent to deprive the SLBC of the right of honest services is sufficient to satisfy the intent element.
(8) Fraudulent deprivation of another's property is no less fraudulent because it might or does result in a benefit to the defrauded.
(9) The circuit distinguished Cleveland v. United States (S.Ct.) because SLBC's monies constituted property in the hands of the victim. The intangible right to control one's property is a property interest within the purview of the mail and wire fraud statutes. The indictment's mail and wire fraud counts state an action against the defendants for honest services fraud.
Aliens - Elements of Transporting Illegal Aliens (8 U.S.C. §1324);
Motion for Judgment of Acquittal;
Motion for New Trial;
Plain Error Review
United States v. Hernandez, 02-2072 (April 22, 2003)
(Charles A. Harwood, FPD, Las Cruces, New Mexico)
Hernandez was charged with transporting illegal aliens in violation of 8 U.S.C. § 1324.
HELD: (1) The district court held that the government did not sufficiently prove that Hernandez acted willfully in furtherance of the alien's violation of the law. The circuit relied on Barajas-Chavez (10th Cir.) to hold that the evidence was sufficient to support the conviction, and reversed the grant of the motion for judgment of acquittal. The statute requires that a defendant know or act in reckless disregard of the fact that an individual is an illegal alien, and that defendant's transportation or movement of the alien will help, advance or promote the alien's illegal entry or continued illegal presence in the United States.
(2) The district court also granted a new trial if the MJA were reversed. The grant of a new trial was based on lack of evidence, and on improper comment by the prosecutor in closing arguments. No contemporaneous objection had been made. The defendant cannot satisfy the plain error test, so the case was reversed and remanded to the district court to reinstate the verdict of guilty and deny the motion for new trial.
Right to Counsel - Disqualification;
Motion for Judgment of Acquittal;
Wire Fraud;
Indictment - Sufficiency, Variance;
Instructions - Good Faith;
Plain Error Review;
Admission of Evidence - Settlement (Rule 408);
Guideline Interpretation - Amount of loss, Abuse of Trust, Acceptance of Responsibility
United States v. Bailey, 02-3187 (April 25, 2003).
Bailey was convicted of 17 counts of wire fraud and five counts of money laundering. He formed Bailey investment management partnership, a general partnership. All the partners were family members or close friends. Bailey made 17 wire fraud transfers between My 1998 and 1999. Civil suits were filed against Bailey resulting in a settlement. Then the government charged Bailey with wire fraud and money laundering. After trial, Bailey was found guilty.
HELD: (1) The court reviews the district court's decision to disqualify counsel for abuse of discretion. But where a Sixth Amendment right to counsel is implicated and where the district court's decision is premised not on in-court conduct but on the interpretation of ethical norms as applied to undisputed facts, review is de novo. Counsel had discussed the possibility of representing one of the plaintiffs in the civil action. The question is whether there was an attorney/client relationship that would subject the lawyer to the ethical obligation of preserving confidential communications. The circuit agreed with the district court's decision to disqualify.
(2) The court reviews the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government. To establish wire fraud the government had to prove a scheme or artifice to defraud, and use of interstate wire communications to facilitate the scheme. The evidence showed Bailey transferred funds by wire from the partnership account and placed them in his personal account, he used the funds in his personal account to invest in high risk investments, in contravention of the terms of the partnership agreement, he hid these actions from the partners and made misrepresentations to the partners.
(3) Bailey failed to challenge the adequacy of the indictment until after the jury rendered its verdict. The indictment will be deemed sufficient if it contains words of similar import to the element in question. The indictment adequately alleged the crime of wire fraud. It set forth the elements of the offense charged and put the defendant on fair notice. The wire transfers were communicative in that they conveyed information about the accounts from which and into which funds were to be transferred.
(4) Bailey failed to argue variance between the indictment and proof below, so review is for plain error. A variance arises when the evidence at trial establishes facts different from those alleged in the indictment, and denigrates the Sixth Amendment right to be informed of the nature and cause of the accusation. There was no variance between the indictment and the evidence at trial. Elements of an offense must be found unanimously by the jury. But the jury need not agree unanimously on the means by which an element is proved.
(5) The court had a proposed good-faith instruction. Bailey initially requested a modification. The court made a slight modification and Bailey made no objection. Again review is for plain error.
(6) Bailey was sued by a number of his partners in a civil suit resulting in a settlement. At trial, the government presented a rebuttal witness and asked three questions about the settlement agreement. Rule 408 provides that evidence of settlement or compromise is not admissible to prove liability for or in validity of the claim or its amount. The Federal Rules of Evidence apply generally to criminal cases and proceedings. The circuits are split on whether Rule 408 applies. The circuit agreed with those courts which apply Rule 408 to bar settlement evidence in both criminal and civil proceedings. While there was error in admitting evidence of the settlement, the error did not affect substantial rights.
(7) The court reviews the district court's interpretation of the guidelines de novo, fact findings for clear error, giving due deference to the district court's application of the guidelines to the facts. The court's findings were not clearly erroneous as to amount of loss, the abuse of trust enhancement, and the acceptance of responsibility determination.
Motion to Suppress - Review Standard;
Traffic Stop - Reasonable Suspicion, Totality of Circumstances
United States v. Gandara-Salinas, 02-2225 (April 25, 2003).
(H. Craig Skinner, Denver, Colorado)
Salinas was charged with possession of 50 kilos or more of marijuana. The district court suppressed evidence from the immigration stop. The circuit reversed.
HELD: (1) The ultimate determination of reasonableness under the Fourth Amendment is a conclusion of law reviewed de novo. The Fourth Amendment requires a finding of reasonable suspicion that criminal activity may be afoot. An officer's reliance on a mere hunch is insufficient. But the likelihood of criminal activity need not rise to the level required for probable cause. Factors relevant in determining whether an immigration stop is supported by reasonable suspicion include characteristics of the area, proximity to the border, usual patterns of traffic, previous experience of the agent with alien traffic, information about recent illegal border crossings, the driver's behavior, aspects of the vehicle and its appearance. The ultimate assessment of reasonable suspicion depends on the totality of the circumstances. The district court appears to have engaged in a sort of "divide and conquer" analysis disapproved by the Supreme Court in Arvizu. In addition to general errors in the district court's approach, the circuit had a definite and firm conviction that the court erred in assessing the agent's ability to observe the irregular size of the spare tire on the truck. The size of the tire is of considerable importance in weighing the totality of the circumstances. Giving proper consideration to the agent's observations, the circuit was convinced that the totality of the circumstances supports a finding of reasonable suspicion of criminal activity to justify the stop.
Grant of Stay - Not a Decision on the Merits;
En Banc Review;
Mootness - Capable of Repetition
Hain v. Mullin, 03-5038, 03-5049 (April 29, 2003)
(Federal Public Defender, W.D. Oklahoma filed an amicus brief)
Hain was sentenced to death for capital murder. He appealed the district court's denial of his request for funding under 21 U.S.C. § 848(q)(8) and the district court's denial of his request for a stay of execution. The circuit had held that § 848(q)(8) did not authorize federally appointed and funded counsel to represent Hain in a state clemency proceeding. Judge Lucero dissented. Hain filed for rehearing and for a stay. A majority of the active judges granted en banc review of the statutory issue and the stay, and voted not to lift the stay pending the ruling of the en banc court. Respondent filed an application to vacate the stay which the Supreme Court granted. Hain was executed on April 3, 2003.
HELD: (1) A Circuit Justice or the Supreme Court itself may dissolve a stay entered by a court of appeals. However, this does not constitute a decision on the merits.
(2) A case is moot when the issues no longer present a "live" issue or the parties lack a legally cognizable interest in the outcome. Obviously, Hain can no longer benefit from a ruling in his favor. Nor does this case fall within an exception to the mootness doctrine of "capable of repetition, yet evading review." For this exception to apply, the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration, and there must be a reasonable expectation that the same complaining party will be subjected to the same action again.
(3) Respondent claims the appeal is not moot because Hain's counsel did expend funds and time in representing Hain. The circuit noted that Hain's counsel has not sought compensation from the district court, nor sought to intervene in the appeal.
(4) The circuit vacated its order granting rehearing en banc and the panel decision, and remanded to the district court to vacate orders that led to the appeals.