RECENT DECISIONS BY THE UNITED STATES SUPREME COURT AND THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT from August 2011 through October 19, 2012 presented at the

EASTERN DISTRICT BENCH BAR CONFERENCE Plano, Texas October 25, 2012

JUDY FULMER MADEWELL Assistant Federal Public Defender Office of the Federal Public Defender Western District of Texas San Antonio, Texas

Written material is borrowed extensively from Significant Decisions paper by TIMOTHY CROOKS, Supervisory Assistant Federal Public Defender Southern District of Texas TABLE OF CONTENTS

BAIL AND DETENTION ...... 1

SEARCH AND SEIZURE ...... 1

INTERROGATIONS AND CONFESSIONS...... 5

OTHER PRETRIAL MATTERS...... 7

A. Double Jeopardy/Multiplicity...... 7

B. Speedy Trial/Statute of Limitations...... 9

C. Conflict of Interest...... 10

D. Severance...... 10

E. Other...... 11

DISCOVERY/PRETRIAL INVESTIGATION & PREPARATION...... 11

TRIAL...... 13

A. Jury Selection...... 13

B. Admission and Exclusion of Evidence...... 13

C. Cross-Examination/Confrontation/Compulsory Process...... 16

D. Prosecutorial Misconduct...... 18

E. Jury Instructions...... 18

F. Jury Deliberations and Verdict/Publicity...... 20

G. Other...... 21

-i- TABLE OF CONTENTS – (Cont’d)

GUILTY PLEAS...... 22

A. Rule 11 Errors...... 22

B. Breach of Plea Agreement...... 23

SENTENCING...... 23

A. Constitutional Challenges...... 23

B. Rule 32/Other Statutory Challenges...... 24

C. (Selected) Guidelines Issues...... 29

D. Fines and Restitution...... 35

E. Resentencing/Sentence Reduction...... 36

F. Time Credit/Place and Conditions of Confinement/Release on Parole...... 37

G. Forfeiture/Return of Property under Fed. R. Crim. P. 41(g)...... 37

APPEAL...... 37

REVOCATION...... 40

A. Probation...... 40

B. Supervised Release...... 40

POST-CONVICTION...... 41

A. 18 U.S.C. § 2255...... 41

B. Ineffective Assistance ...... 42

C. Other ...... 44

-ii- TABLE OF CONTENTS – (Cont’d)

MISCELLANEOUS...... 45

A. Particular Substantive Offenses (and Defenses)...... 45

B. Insanity/Competency/Civil Commitment...... 48

C. Reversals for Insufficiency of the Evidence or Multiplicity...... 48

-iii- I. BAIL AND DETENTION

Waganfeal v. Gusman, 674 F.3d 475 (5th Cir. 2012) Although arrestees are normally entitled, under the Fourth Amendment, to a probable-cause determination within 48 hours after their arrest, see County of Riverside v. McLaughlin, 500 U.S. 44 (1991), plaintiffs’ detention in Orleans Parish custody for significantly beyond that time, due to the exigencies and displacement caused by Hurricane Katrina, did not violate their constitutional rights because it fell within the “bona fide emergency” exception to McLaughlin’s 48-hour rule; accordingly, the jailers were entitled to judgment as a matter of law on this claim; nor did the jailers clearly violate defendants’ Sixth Amendment right to counsel by denying them telephone access, in light of the unique emergency conditions faced by the jail (failure of institutional telephone service, hurricane conditions) and the security risks of alternatives (such as letting inmates use their own cellphones); accordingly, the jailers were also entitled to judgment as a matter of law on this claim; for these reasons, the Fifth Circuit reversed the jury’s verdict and district court’s judgment in favor of plaintiffs on these claims, and remanded for entry of judgment in favor of the jailers.

Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012) The jury did not render an unreasonable verdict by finding that Mississippi law enforcement did not violate civil-rights plaintiff’s Fourth Amendment right to a prompt probable-cause determination after arrest; although arrestees are normally entitled, under the Fourth Amendment, to a probable-cause determination within 48 hours after their arrest, see County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the jury could reasonably have concluded that a bona fide emergency or other extraordinary circumstance – namely, the police’s uncertainty about their jurisdiction over the crime – and that the police acted promptly to bring plaintiff before a magistrate after resolution of that question.

II. SEARCH AND SEIZURE

United States v. Jones, 132 S. Ct. 945 (2012). The government’s attachment of a GPS tracking device on defendant’s vehicle and its use of that device to monitor the vehicle’s movements for 28 days constituted a “search” under the Fourth Amendment; in so concluding, the Court relied on the Fourth Amendment’s incorporation of traditional common-law trespass concepts; because this aspect of the Fourth Amendment resolved the question here, the Court had no occasion to decide whether the government’s actions here also implicated the Fourth Amendment under the “reasonable expectation of privacy” test set out in Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347 (1967), which test has been added to, but not substituted for, the common-law trespassory test. (Justice Sotomayor joined the majority opinion, but also filed a concurring opinion in which she highlighted the continuing importance of the Katz test to nontrespassory government intrusions and expressed the view that some reconsideration of Fourth Amendment doctrine may be necessary to take account of modern technological developments and people’s expectations vis-à-vis those developments. Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, filed an opinion concurring in the judgment, in which he would eschew the trespassory approach of the majority but would reach the same result under the Katz “reasonable expectation of privacy” rubric.)

1 Ryburn v. Huff, 132 S. Ct. 987 (2012) (per curiam). The Ninth Circuit reversibly erred in denying qualified immunity to Burbank police officers who, while investigating fears that the Huffs’ son Vincent might be planning to “shoot up” his high school, effected a warrantless entry into the Huff home when Mrs. Huff retreated hurriedly into the house after being asked if there were guns in the house; no clearly established law condemns the officers’ actions as violative of the Fourth Amendment; on the contrary, a reasonable police officer could read the Supreme Court’s decision on the emergency-aid exception to the warrant requirement as meaning that the Fourth Amendment permits an officer to enter a residence if the officer has an objectively reasonable basis for concluding that there is an imminent threat of violence; moreover, a reasonable officer could have reached such a conclusion based on the facts as found by the district court; accordingly, the Supreme Court granted the petition for certiorari, reversed the Ninth Circuit’s judgment, and remanded for entry of judgment in favor of the petitioners.

Messerschmidt v. Millender, 132 S. Ct. 1235 (2012). The Ninth Circuit erred in refusing to grant qualified immunity to police officers who executed a search pursuant to a warrant authorizing the officers to search for all firearms and ammunition, as well as for evidence indicating gang membership; the warrant was not so obviously defective that no reasonable officer could have believed it to be valid; the facts recited in the warrant affidavit provided a reasonable basis for the search for the items listed in the warrant, and any arguable defect was not obvious, but would only have surfaced after a close parsing of the warrant and the supporting affidavit; moreover, the reasonableness of the officers’ reliance on the warrant was bolstered by the fact that the warrant application was approved by a superior and by a deputy district attorney before it was submitted to the magistrate who issued the requested warrant; accordingly, the Court reversed the judgment of the Ninth Circuit denying the officers qualified immunity. (Justice Breyer joined the majority opinion, but filed a concurring opinion. Justice Kagan filed an opinion concurring in part and dissenting in part. Justice Sotomayor filed a dissenting opinion, in which she was joined by Justice Ginsburg.)

Florence v. Board of Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510 (2012). Visual strip searches of man erroneously arrested on outstanding bench warrant that should have been cleared did not violate the Fourth Amendment even though the jailers had no reasonable suspicion to suspect the concealment of weapons, drugs, or other contraband; suspicionless visual strip searches of even persons arrested for minor offenses strike a reasonable balance between arrestee privacy and the security needs of the jails, at least where those persons are going to be placed in the general population of the jails or will otherwise have substantial contact with other inmates; in Part IV of the opinion, which commanded only a plurality, Justice Kennedy highlighted some of the limitations of the Court’s holding. (Chief Justice Roberts and Justice Alito joined the majority opinion, as well as Part IV of the opinion, but filed separate concurring opinions emphasizing the limits of the Court’s holding and declining to foreclose the possibility of a different result on different facts. Justice Breyer filed a dissenting opinion in which he was joined by Justices Ginsburg, Sotomayor, and Kagan.)

2 Florida v. Jardines, cert. granted, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564) (granting cert. to Jardines v. State, 73 So.3d 34 (Fla. 2011)) Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog a Fourth Amendment search requiring probable cause? Set for argument Oct. 31, 2012.

Florida v. Harris, cert. granted, 132 S. Ct. 1796 (Mar. 26, 2012) (No. 11-817) (granting cert. to Harris v. State, 71 So.2d 756 (Fla. 2011)) Has the Florida Supreme Court decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle? Set for argument Oct. 31, 2012. [NOTE: The Fifth Circuit has decided this question contrary to the way it was decided by the Florida Supreme Court. See United States v. Sanchez-Peña, 336 F.3d 431 (5th Cir. 2003).]

Bailey v. United States, cert. granted, 132 S. Ct. 2710 (June 4, 2012) (No. 11-770) (granting cert. to United States v. Bailey, 652 F.3d 197 (2d Cir. 2011)) Pursuant to Michigan v. Summers, 452 U.S. 692 (1981), may police officers detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed? Set for argument Oct. 30, 2012. [NOTE: The Fifth Circuit answered this question in the affirmative in United States v. Cavazos, 288 F.3d 706 (5th Cir. 2002).]

United States v. Macias, 658 F.3d 509 (5th Cir. 2011) Traffic stop, valid at its inception (due to defendant-driver’s failure to wear a seatbelt), was unconstitutionally prolonged beyond the time necessary to investigate the circumstances that justified the stop, by the police officer’s extensive questioning of defendant-driver and his passenger on matter s unrelated to the purpose and itinerary of their trip; because this excessively prolonged detention was not supported by reasonable suspicion of additional criminal activity, it violated the Fourth Amendment; furthermore, defendant-driver’s consent, even if voluntary, was not sufficiently attenuated from the antecedent constitutional violation so as to remove the taint of that violation; accordingly, all of the evidence in the case should have been suppressed; because without the suppressed evidence, there was no evidence to support defendant’s conviction for being a felon in possession of a firearm, the Fifth Circuit reversed and vacated the conviction, and remanded for entry of a judgment of acquittal.

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): (1) Under the circumstances of this case, the warrantless seizure of property from defendant organization’s offices did not violate the Fourth Amendment; the property was already subject to a blocking order and government control under the IEEPA – unchallenged by the defendants here – which stripped away any possessory interests in the offices and assets of the defendant organization; any remaining privacy interest was minimal and was protected by the government’s obtaining, after the seizure of the property but before any search of it, a judicial warrant.

3 (2) District court did not abuse its discretion in refusing to compel the production of the FISA warrant applications and court orders used to authorize the intercepts in this case, nor did it err in refusing to suppress the FISA intercepts.

United States v. Aguirre, 664 F.3d 606 (5th Cir. 2011) District court did not err in denying defendant’s motion to suppress the fruits of a search of her cell phone; first, the police officers’ warrantless entry into the mobile home where defendant was staying was justified by exigent circumstances (i.e., circumstances that suggested that, having been made aware of police officers outside the home, the occupants were destroying drugs and other narcotics-related evidence) and probable cause; furthermore, the district court did not clearly err in finding that the search of the cell phone did not occur until after the officers returned with a search warrant two hours later; that warrant, which was based only on information possessed by the police prior to their entry into the home, set out probable cause to search; finally, although the warrant did not specifically describe cell phones as among the items to be searched, defendant’s cell phone – used a mode of both spoken and written communication and containing text message and call logs – served as the equivalent of records and documentation of sales or other drug activity, which the warrant did list as general categories of things to be searched.

United States v. Gray, 669 F.3d 556 (5th Cir. 2012) Proctoscopy conducted pursuant to warrant issued on probable cause, culminating in the discovery of 9.62 grams of crack cocaine in a plastic bag in defendant’s rectum, violated defendant’s right to “personal privacy and dignity” as delineated in Winston v. Lee, 470 U.S. 755 (1985); balancing the medical danger from the procedure, the intrusion on defendant’s dignity, and society’s interests in the search, the Fifth Circuit concluded that the proctoscopic search was unreasonable under the Fourth Amendment; however, the police’s reliance on the warrant was shielded by the good-faith exception, so the district court did not err in denying the motion to suppress; the Fifth Circuit urged magistrates issuing warrants like this to cabin the search warrant more than the “recognized medical procedure” language used in this warrant; the Fifth Circuit also encouraged magistrates, where feasible, to hold a hearing like that in Winston v. Lee to allow for more careful consideration of the competing interests at stake in these types of medical procedure search cases.

Bishop v. Arcuri, 674 F.3d 456 (5th Cir. 2012) San Antonio police officers’ failure to knock and announce prior to executing a search warrant on appellants’ home violated the Fourth Amendment; the failure to knock and announce could not be justified on the grounds of either exigency or dangerousness to the executing officers; because the rights violated by the detectives were well- established at the time of the execution of the warrant, the lead detective was not entitled to qualified immunity; moreover, contrary to the district court’s determination, there was a genuine issue of material fact as to whether the City of San Antonio should be held liable for the police department’s policy respecting no-knock entries; accordingly, the Fifth Circuit reversed the district court’s grant of summary judgment for the detective and the City and remanded for further proceedings.

United States v. Cooke, 674 F.3d 491 (5th Cir. 2012) District court did not err in denying defendant’s motion to suppress; under the factors to be considered under United States v. Dunn, 480

4 U.S. 294 (1987), the area where the police officers entered was not part of the curtilage of defendant’s dwelling, so the police did not violate defendant’s Fourth Amendment rights by entering the area without consent or a warrant; alternatively, even if the officers had unlawfully entered the curtilage, such violation was attenuated by the consent of defendant’s mother, who also lived in the residence; furthermore, the mother’s consent to entry was not vitiated by defendant’s express refusal to consent while he was in jail in another county; the Fifth Circuit agreed with the Seventh and Eighth Circuits that the objection of an absent cotenant does not vitiate the consent of a physically present cotenant under the Supreme Court’s decision in Georgia v. Randolph, 547 U.S. 103 (2006), because Randolph applies only to searches conducted in the face of a present and objecting cotenant; the Fifth Circuit noted that its decision on this point conflicted with the decision of the Ninth Circuit in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008).

United States v. McKinnon, 681 F.3d 203 (5th Cir. 2012) Officer’s exercise of discretion to impound defendant’s vehicle upon defendant’s arrest (rather than leaving it parked at scene or releasing it to a third person) was reasonable under the circumstances and did not violate the Fourth Amendment; furthermore, the inventory search conducted as a result of that impoundment likewise did not violate the Fourth Amendment; there was no suggestion that the officer did not follow the Houston Police Department’s policy on inventory searches of nonconsent tows; although the police officer admitted to wanting to search the vehicle for evidence of a crime, an officer’s subjective motivations are irrelevant, so long as there is an objective justification for the search, which there was in this case.

United States v. Triplett, 684 F.3d 500 (5th Cir. 2012) District court did not err in denying child- pornography defendant’s motion to suppress challenging a search warrant for his home; the warrant did not lack sufficient particularity simply because it authorized the search of all “electronic devices” and “electronic memory devices”; the law permits an affidavit incorporated by reference to amplify particularity, and, when viewed alongside the affidavit and its stated goal of finding items relevant to locating a missing person, the warrant’s list of items to be seized was reasonably focused; furthermore, the warrant was not so lacking of indicia of probable cause as to render official belief in its existence entirely unreasonable, thus shielding the officers’ actions pursuant to that warrant under the good-faith doctrine.

United States v. Rico-Soto, 690 F.3d 376 (5th Cir. 2012). Roving border patrol agent had reasonable suspicion to stop 15-passenger van with “Paisanos” Transportation designation on IH 10 near Lake Charles, LA, based on recent intelligence that Paisanos Transportation vans had been involved in alien-smuggling, IH 10 was a major smuggling route, van was traveling in direction and with number of occupants to be expected if returning from smuggling drop off.

III. INTERROGATIONS AND CONFESSIONS

Howes v. Fields, 132 S. Ct. 1181 (2012). The Sixth Circuit’s categorical rule – that a prisoner is always “in custody” for purposes of Miranda any time that prisoner is isolated from the general

5 prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances – was not clearly established by Supreme Court law and thus could not serve as the basis for federal habeas relief for Michigan state prisoner questioned about offense different from that for which he was incarcerated; moreover, said the Court, such a rule is “simply wrong”; the circumstances identified by the Sixth Circuit do not necessarily and in all circumstance suffice to establish Miranda custody; under all the circumstances of this case, defendant was not “in custody” within the meaning of Miranda; accordingly, the Court reversed the Sixth Circuit’s judgment affirming the district court’s grant of habeas relief. (Justice Ginsburg, joined by Justices Breyer and Sotomayor, filed an opinion concurring in part and dissenting in part. She agreed that the rule applied by the Sixth Circuit was not clearly established as necessary for it to be applied in defendant’s favor on federal habeas review; however, she would hold, as an original matter, that the facts of this case stated a Miranda violation.)

United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011): (1) Taken in the context of all the facts, defendant’s comments to the effect that he wished he had a lawyer did not evince an intent on the part of defendant to invoke his right not to be questioned by the police without an attorney present.

(2) Defendant’s waiver of his Miranda rights was not involuntary; the detective’s statement that defendant would not get an attorney until he was arraigned in federal court was accurate information, not deception vitiating defendant’s waiver.

United States v. Melancon, 662 F.3d 708 (5th Cir. 2011) Defendant, in prison on an unrelated charge, was nevertheless not “in custody” for Miranda purposes when questioned by an ATF agent and Assistant United States Attorney regarding defendant’s alleged preparation of a false affidavit for use in his nephew’s criminal case; a prisoner is not automatically “in custody” for Miranda purposes; here, defendant was questioned in a warden’s office, and was told that he was free to leave and was not required to answer their questions, in response to which defendant said he knew his rights and would cooperate; even if defendant had been “in custody” at the time of his statements, suppression of the unwarned statements would not be required because the statements themselves were a criminal act (the defendant was charged with false-document/obstruction-of-justice charges based upon his responses at the interview in question); the exclusionary rule does not act as a bar to the prosecution of a crime where the statements themselves are the crime.

United States v. Cavazos, 668 F.3d 190 (5th Cir. 2012) On government’s interlocutory appeal, Fifth Circuit affirmed the district court’s order suppressing the statements made by defendant (charged with offenses arising out of “sexting” a minor victim) in his home prior to being given Miranda warnings; here, the totality of the circumstances, drawn from the record as seen in the light most favorable to defendant (the prevailing party on the motion to suppress) indicates that defendant was in Miranda custody at the time he made his incriminating statements; he was awakened just after 5:30 a.m., identified, and handcuffed, while more than a dozen officers entered and searched his home; he was separated from his family and interrogated by two federal agents for at least an hour; he was informed he was free to use the bathroom or get a snack, but was followed and monitored

6 when he sought to do so; and he was allowed to make a phone call, but only when holding the phone so that the agents could hear the conversation; an interrogation under these circumstances would lead a reasonable person to believe that he was not at liberty to terminate the interrogation and leave, notwithstanding the fact that the interrogation occurred in his home and he was informed the interrogation was “non-custodial.”

United States v. Cantu-Ramirez, 669 F.3d 619 (5th Cir. 2012) Because defendant’s post-arrest, pre- presentment confession was made less than six hours after his arrest, it fell into the “safe harbor” of 18 U.S.C. § 3501(c), and thus was admissible, provided that it was voluntarily made and provided that the weight to be given it was left to the jury; under the totality of the circumstances to be considered under 18 U.S.C. § 3501(b) (including the fact that the officers did delay presentment for the purpose of interrogation, as well as the nature of the interrogation), the confession was voluntary

United States v. Hernandez, 670 F.3d 616 (5th Cir. 2012) Having previously found that the warrantless attempted forced entry of defendant’s trailer (ultimately resulting in defendant’s prosecution for harboring an illegal alien) violated the Fourth Amendment, see United States v. Hernandez, 392 Fed. Appx. 350 (5th Cir. 2010) (unpublished), the Fifth Circuit held the district court should also have suppressed the post-arrest, post-Miranda statements of defendant and her co- defendant, as well as the post-arrest statement of an illegal alien found in the trailer; defendant’s inculpatory statement on the doorstep of her home was the fruit of the unconstitutional attempted forced entry of defendant’s trailer, and thus could not supply probable cause for a valid arrest; without a valid arrest, defendant’s post-arrest statements were also tainted by the initial constitutional violation; finally, the Fifth Circuit found that the other two persons’ statements were likewise the fruit of the initial constitutional violation, and were not sufficiently attenuated from that violation, nor were they admissible under the inevitable-discovery doctrine.

Edmonds v. Oktibbeha County, Mississippi, 675 F.3d 911 (5th Cir. 2012) County law enforcement officers did not coerce a false confession to murder from a 13-year-old boy (he was convicted of the murder and sentenced to life imprisonment, but, following an appellate reversal, was acquitted); the totality of the circumstances indicated that the boy’s will was not overborne, but rather that he was primarily motivated by a desire to protect his sister.

IV. OTHER PRETRIAL MATTERS

A. Double Jeopardy/Multiplicity

Blueford v. Arkansas, 132 S. Ct. 2044 (2012). In capital murder prosecution, jury foreperson’s announcement – namely, that the jury was unanimous against guilt on the charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not yet voted on negligent homicide – did not, in light of the jury’s ultimate failure to return any formal verdict, create a double- jeopardy bar to reprosecution for capital murder and first-degree murder; the foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those

7 offenses; even if the instructions required the jury to acquit on greater offenses before moving to the lesser ones, nothing prevented the jury from reconsidering its votes on those greater offenses; nor did the trial court’s declaration of a mistrial create a double-jeopardy bar to retrial on capital murder and first-degree murder; the trial court was not obligated, prior to declaring a general mistrial, to give the jury the option of returning a partial verdict on some of the options. (Justice Sotomayor filed a dissenting opinion, in which she was joined by Justices Ginsburg and Kagan.)

Evans v. Michigan, cert. granted, 132 S. Ct. 2753 (June 11, 2012) (No. 11-1327) (granting cert. to People v. Evans, 810 N.W.2d 535 (Mich. 2012)) Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact? Set for argument Nov. 6, 2012.

United States v. Sarabia, 661 F.3d 225 (5th Cir. 2011) Defendant’s acquittal, in first trial, of charge of conspiracy to possess with intent to distribute marijuana did not create a double-jeopardy bar to his retrial on the substantive count of possession of marijuana with intent to distribute (as to which the jury had hung); an earlier acquittal raises an issue preclusion/collateral estoppel bar to further prosecution if the later prosecution rests upon a fact necessarily decided in the defendant’s favor by the jury; here, the first jury’s acquittal of defendant on the conspiracy count does not compel the conclusion that defendant was not guilty of the substantive offense; accordingly, defendant could be retried on the substantive count. (This was an interlocutory appeal under the authority of Abney v. United States.)

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): (1) Under the five-factor test used by the Fifth Circuit, see, e.g., United States v. Delgado, 256 F.3d 264, 272 (5th Cir. 2001), defendant’s prior conspiracy conviction was not one for the “same offence” as the conspiracy charged in the instant case; rather, analysis showed that there were two separate agreements, and therefore two conspiracies, to achieve different objectives accordingly, defendant’s prosecution for the instant conspiracy was not barred by the Double Jeopardy Clause.

(2) Another defendant’s retrial on the conspiracy charge in this case (as to which the first jury had hung) was not barred, under principles of collateral estoppel, by his acquittal on all the other charges at the first trial; defendant failed to carry his burden of establishing that the first jury had necessarily decided a critical fact for the conspiracy in his favor; furthermore, evidence concerning substantive acts on which defendant was acquitted was not barred, by collateral estoppel, from use at the second trial, as long as that evidence was otherwise admissible.

(3) Defendants’ retrial following a mistrial did not violate their double jeopardy rights; the defendants either expressly or impliedly consented to the mistrial; nor was the defendants’ consent to a mistrial goaded by intentional misconduct on the part of the government; although the exhibits the government submitted to the jury for its deliberation included demonstrative and non-admitted exhibits, the district court found that this was not intentional, but inadvertent, and that finding was not clearly erroneous.

8 United States v. Dugue, 690 F.3d 636 (5th Cir.2012). Mistrial caused by prosecutor’s twice violating trial court’s motion in limine order excluding certain prejudicial evidence did not bar retrial under double jeopardy. District court found that prosecutor’s misconduct was not intended to cause a mistrial, as required under Oregon v. Kennedy, 456 U.S. 667 (1982), to bar retrial.

B. Speedy Trial/Statute of Limitations

United States v. Pfluger, 685 F.3d 481 (5th Cir. 2012) Indictment returned against United States Army lieutenant colonel on November 12, 2010, charging him with fraud against the United States between December 1, 2003, and May 16, 2004, was not untimely; the statute of limitations was suspended under 18 U.S.C. § 3287 (the Wartime Suspension of Limitations Act), which suspends the running of the statute of limitations for certain crimes when the United States is at war; § 3287 was triggered by the Authorization for the Use of Military Force of September 18, 2001 (“AUMF”), or the Authorization for the Use of Military Force against Iraq of October 11, 2002 (“AUMF-I”); the question, then, was only when hostilities had been terminated for purposes of § 3287; although defendant argued that hostilities had terminated on May 1, 2003, based on President Bush’s declaration that “[m]ajor combat operations in Iraq have ended,” the Fifth Circuit rejected this “functional approach” to the question (which was supported by United States v. Prosperi, 573 F. Supp. 2d 436 (D. Mass. 2008)), and adopted a more formal approach requiring an official declaration by Congress or the President; because neither Congress nor the President met the formal requirements for terminating § 3287’s suspension of limitations as of May 2004 (nor yet to this date), the Fifth Circuit held that § 3287 applied to defendant, and that the indictment against him was timely.

United States v. Hale, 685 F.3d 522 (5th Cir. 2012) The district court abused its discretion in finding that defendant waived his right to file a motion to dismiss based on a Speedy Trial violation by failing to file such a motion before the scheduling order deadline; nevertheless, on the merits, the Fifth Circuit found no Speedy Trial Act violation; a continuance granted based on the unavailability of a government witness was excludable pursuant to 18 U.S.C. § 3161(h)(7)(C); additionally, a 30- day “ends of justice” continuance granted to the defense upon the return of a superseding indictment with additional counts was also excludable time; taking into account these periods of excludable time, defendant was brought to trial within the statutory 70-day period.

United States v. Ortiz, 687 F.3d 660 (5th Cir. 2012) Defendant was indicted beyond the 30-day period permitted by 18 U.S.C. § 3161(b) of the Speedy Trial Act; although the government attempted to attribute some of the time to the absence of an “essential witness” (one of defendant’s co- defendants, who was a fugitive), the Fifth Circuit held that the co-defendant was not an “essential witness” for purposes of the excludable-time provision of 18 U.S.C. § 3161(h)(3)(A), because his testimony would have been merely cumulative for the purpose of obtaining a grand jury indictment; because the indictment was untimely, the Speedy Trial Act required its dismissal; the Fifth Circuit

9 therefore reversed defendant’s conviction and remanded for the district court to decide in the first instance whether to dismiss with or without prejudice.

C. Conflict of Interest

Salts v. Epps, 676 F.3d 468 (5th Cir. 2012) Where trial attorney, jointly representing a husband and wife charged with embezzlement in Mississippi state court, alerted the trial court to the possibility of a conflict of interest arising from the joint representation, it was error, reversible per se under Holloway v. Arkansas, 435 U.S. 475 (1978), for the trial court to fail to make further inquiry into the potential conflict; the Mississippi courts misapplied Holloway by interpreting it to apply only where there is a showing of an actual conflict; accordingly, the Fifth Circuit affirmed the district court’s grant of federal habeas relief. (Chief Judge Jones filed a dissenting opinion.)

United States v. Hernandez, 690 F.3d 613 (5th Cir. 2012). The district court did not err by failing to hold a Garcia hearing pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), to determine whether the defendant was waiving any conflict of interest based on defense counsel’s prior representation of defendant’s brother, and co-conspirator, on earlier unrelated state case.

D. Severance

United States v. Bernegger, 661 F.3d 232 (5th Cir. 2011) Defendant’s motion to sever the trial of his co-defendant did not preserve his appellate claim that the district court should have severed various counts in which defendant was charged; although the appellate court retains discretion to review an unpreserved severance claim for plain error, here the district court did not clearly err in finding that the bank fraud count was closely enough related to the mail and wire fraud counts so as to justify joinder of those counts for trial; nor did the defendant show that failure to sever these counts affected his substantial rights, especially in light of the jury instruction requiring separate consideration of each count without reference to any of the other counts; this was especially true, given defendant’s and co-defendant’s acquittals on various counts.

United States v. Owens, 683 F.3d 93 (5th Cir. 2012) In bank-robbery case, district court did not abuse its discretion in refusing to sever the cases of the two co-defendants; the mere fact that there was a romantic relationship between the defendants did not create sufficient prejudice to overcome the preference of joint trials for co-defendants, especially in light of the cautionary instructions given by the district court; furthermore, female defendant was not entitled to a severance based on her claim that, if the defendants were given separate trials, the male defendant would testify in her behalf; in order to establish this ground for severance, a defendant needs to produce an affidavit or similar proof from the co-defendant him- or herself; here, however, defendant produced only her own attorney’s affidavit respecting the co-defendant’s willingness to testify, and, under Fifth Circuit law, that was insufficient.

10 E. Other

Perry v. New Hampshire, 132 S. Ct. 716 (2012). The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement; the fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen the evidence for reliability before allowing the jury to assess its creditworthiness. (Justice Thomas filed a concurring opinion, in which he expressed the view that the Court’s previous eyewitness identification procedure cases gave more protection than the Due Process Clause, as correctly interpreted, properly provides. Justice Sotomayor filed a dissenting opinion.)

United States v. Jones, 664 F.3d 966 (5th Cir. 2011) District court did not err in granting the government’s motion to dismiss the first indictment in this case pursuant to Fed. R. Crim. P. 48(a); the defendants did not overcome the presumption that the government acted in good faith in seeking that dismissal, especially given that the government gave a rationale for dismissing and reindicting in another division that was more than a “mere conclusory interest”; nor did the district court violate defendants’ procedural due process rights by granting the motion without notice to the defendants or a hearing; no liberty interest of the defendants’ was implicated by the dismissal, standing alone; it was not until the reindictment that a liberty interest was implicated, but, at that time, the district court did hold a hearing on whether the dismissal and reindictment were in bad faith.

United States v. Thomas, 690 F.3d 358 (5th Cir. 2012). Held that venue in WD TX was proper for conspiracy but not for attempt. Defendants were convicted both of drug conspiracy and attempted possession of cocaine. The supplier was in WD TX. The confidential informant (CI) contacted the supplier, who said that he wanted the CI to deliver some cocaine to Missouri and that he would make arrangements for its pickup there. The CI drove from WD TX to Missouri, where he met with Thomas and Davis. They took possession of the cocaine. Venue for criminal attempt, unlike venue for conspiracy or aiding and abetting, is based on an individual’s actions as opposed to action in concert with others. Because the government did not present evidence that Thomas or Davis acted in WD TX, venue was not proper on the attempt charges. Also, although aiding and abetting is an alternate charge in every federal indictment, it did not provide a basis for venue in this case because the government did not argue it and the jury was not charged on it. The attempt convictions were reversed.

V. DISCOVERY/PRETRIAL INVESTIGATION & PREPARATION

Smith v. Cain, 132 S. Ct. 627 (2012). In Louisiana state first-degree murder case, where defendant was convicted based on the testimony of a single eyewitness, state violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose statements of the eyewitness, contained in police files, that

11 contradicted his testimony; because the statements were material (i.e., because there was a reasonable probability that the result of the trial would have been different had the statements been disclosed), the Supreme Court reversed the state trial court’s judgment rejecting defendant’s Brady claim and remanded for further proceedings. (Justice Thomas filed a dissenting opinion.)

United States v, El-Mezain, 664 F.3d 467 (5th Cir. 2011): (1) In prosecution for material support to a foreign terrorist organization, district court did not abuse its discretion in refusing to grant defendant’s request for a letter rogatory to the government of Israel, seeking review of approximately 2000 boxes of material seized by the Israeli military; the defendants did not show that a denial of access to that material was prejudicial to their substantial rights.

(2) District court did not abuse its discretion in refusing to disclose the defendants’ own intercepted statements to them; the government properly invoked the classified information privilege, notwithstanding the fact that it was not invoked by a government agency head; under the unusual facts here, the district court did not err in balancing the government’s need to protect classified information against the defendants’ need for the information; this was so in large part because although the information was withheld from the defendants themselves, the government disclosed untranslated intercepts to defense counsel and agreed to further consider specific requests for declassification of other calls.

United States v. Lundy, 676 F.3d 444 (5th Cir. 2012) In attempted-child-enticement prosecution, the district court did not abuse its discretion in precluding the defense’s expert witness from testifying based on the defense’s violation of Fed. R. Crim. P. 16(b)(1)(C), which requires the defendant to give the government a written summary of expert testimony prior to the expert’s testifying; the district court found that there was no good reason for the delay in notifying the government about the expert’s proposed testimony, found that the proposed testimony was redundant, and found it unclear whether the expert was qualified to testify on the issue for which defendant proposed to call him.

Cobb v. Thaler, 682 F.3d 364 (5th Cir. 2012) In rejecting defendant’s claim that the state had suppressed exculpatory/impeaching information – namely, a letter in the district attorney’s file from a jailhouse informant – the Texas state courts did not unreasonably apply clearly established federal law as determined by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny; no clearly established law establishes that evidence is suppressed under Brady when it is in the open file of a co-defendant; it was not unreasonable for the state courts to conclude that the prosecution satisfied its Brady obligation by providing open access to the case files for the two co-defendants; it was also reasonable for the state courts to determine that the letter was not “material” within the meaning of Brady, as it would not have added significantly to the impeachment ammunition that defendant’s counsel already had for the informant.

12 United States v. Jarman, 687 F.3d 269 (5th Cir. 2012) Under 18 U.S.C. § 3509(m), a district court shall deny copies of property or material containing child pornography to the defense “so long as the Government makes the property or material reasonably available to the defendant”; moreover, the property or material is “reasonably available” “if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility”; nevertheless, government was not entitled to a writ of mandamus compelling district court to deny defendant’s motion for defendant’s expert to examine alleged child pornography evidence at the expert’s own facility (the district court had granted that motion); in light of the evidentiary record in this case, the district court’s determination that there was not “ample opportunity” to view the evidence at the government facility did not rise to the level of clear and indisputable error as necessary for a writ of mandamus to be granted; accordingly, the Fifth Circuit affirmed the district court’s order, but cautioned that inconvenience to an expert or complexity of the case do not, as a general rule, add up to a failure to make the evidence “reasonably available”; rather, making the evidence available for inspection at a government facility is reasonable availability, and the only issue to be resolved pretrial relating to § 3509(m) discovery is whether the government inspection conditions imposed on a defendant’s access at that facility “provid[e] ample opportunity” to inspect, view, or examine the material.

VI. TRIAL

A. Jury Selection

United States v. Bennett, 664 F.3d 997 (5th Cir. 2011) The district court did not reversibly err by, on the government’s objection, reseating two white veniremembers whom (the court determined) the defendants had improperly used peremptory challenges to strike on the basis of their race; under the reasoning of Batson v. Kentucky, 479 U.S. 79 (1986), and Georgia v. McCollum, 505 U.S. 42 (1992), the Equal Protection Clause prohibits a black defendant from using a peremptory challenge to strike a white prospective juror because of that juror’s race; furthermore, the district court did not clearly err in determining that defendants’ facially race-neutral reasons for striking the two veniremembers were in fact pretextual; the Fifth Circuit therefore affirmed the district court’s determination that the defendants struck the two white veniremembers for racially motivated reasons.

B. Admission and Exclusion of Evidence

United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011): (1) In prosecution for possession of methamphetamine with intent to distribute, district court abused its discretion in admitting evidence that defendant’s nephew had, a couple of months before the offense, smoked methamphetamine with defendant and defendant’s girlfriend; the evidence was clearly “extrinsic” evidence subject to Fed. R. Evid. 404(b), but the government did not give the required notice of its intent to introduce this evidence; nevertheless, the error was harmless in light of the strong evidence of guilt and the limiting instruction given by the district court.

13 (2) Admission of evidence that defendant had previously been convicted, in Texas state court, of delivery of a controlled substance, even if erroneous, did not warrant reversal; in light of the strong evidence of guilt and the limiting instruction given by the district court, any error was harmless beyond a reasonable doubt.

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): (1) It was error to allow one witness to express a conclusion of which he apparently had no personal knowledge, but rather gleaned from “classic hearsay” sources such as newspapers, leaflets, the Internet, and friends; it was also error for the district court to admit, under the residual exception to the hearsay rule (see Fed. R. Evid. 807), documents seized by the Israeli military, as these did not contain sufficient “equivalent circumstantial guarantees of trustworthiness” as required for admission under that rule; however, these errors were harmless.

(2) The district court did not err in admitting documents as co-conspirator statements pursuant to Fed. R. Evid. 801(d)(2)(E); admissibility under Rule 801(d)(2)(E) does not turn on the criminal nature of the endeavor; instead, a statement may be admissible under Rule 801(d)(2)(E) if it is made in furtherance of a lawful joint undertaking; here, a preponderance of the evidence proved that the documents in question were created as part of a common enterprise, of which the defendants and declarant, of which the defendants and declarants were members.

(3) In prosecution for material support to a foreign terrorist organization (Hamas), the district court did not abuse its discretion in refusing to exclude, pursuant to Fed. R. Evid. 403, evidence related to Hamas violence; the probative value of the evidence (enhanced by the need for rebuttal of points made by the defense) outweighed any unfair prejudice.

(4) The district court erred in allowing one witness, not noticed as an expert witness, to give improper lay opinion and to give an improper legal conclusion; the district court also erred in allowing another witness to give irrelevant testimony about how terrorism disrupts the peace process in the Middle East and why that is inimical to American interests, as such testimony was irrelevant; nevertheless, these errors were harmless; the district court did not, however, err in allowing agents to testify about opinions gleaned from first-hand observations in a specific investigation, even though some specialized knowledge was required on the part of the agents to interpret what they saw; such testimony is not improper lay testimony.

United States v. Ashley, 664 F.3d 602 (5th Cir. 2011) In the appeal of defendant’s conviction for theft of mail by a postal employee, the Fifth Circuit noted a split of authority as to whether pre- arrest, pre-Miranda silence in the face of law enforcement questioning was admissible; the Fourth, Ninth, and Eleventh Circuits allow its use, while the First, Sixth, Seventh, and Tenth Circuits hold that the Fifth Amendment’s privilege against self-incrimination prohibits the use of pre-arrest, pre-Miranda silence as substantive evidence; however, the Fifth Circuit declined

14 to take sides in this debate because, even if it adopted the latter position, any error in this case was harmless on the facts of this case.

United States v. Montes-Salas, 669 F.3d 240 (5th Cir. 2012) In prosecution for illegal-alien trafficking, most of agent’s controverted testimony was permissible background testimony about how an alien-trafficking operation works, rather than impermissible profile testimony; more problematic was the agent’s testimony that guides usually sit in the front (defendant was in the front passenger seat); however, the error was not so certain that the admission of the testimony was a clear or obvious error, as required to prevail on plain error; the agent’s testimony that the sister of one of the alien’s gave him a phone number which she identified as belonging to “Carlos,” another of the smugglers, was inadmissible hearsay; however, this error did not affect the defendant’s substantial rights or impugn the fairness, integrity, and public reputation of this proceeding, and thus did not warrant reversal on plain-error review.

United States v. Gray, 669 F.3d 556 (5th Cir. 2012) In prosecution for possession of crack cocaine with intent to distribute, the district court abused its discretion in admitting photographs depicting defendant with a handgun or revolver; there was no probative value to these photographs; the Fifth Circuit distinguished cases finding relevant evidence of guns recovered at the same location where drugs are found; nevertheless, the error was harmless and did not require reversal of defendant’s conviction.

United States v. Lundy, 676 F.3d 444 (5th Cir. 2012) In attempted-child-enticement case, district court did not err in finding that online chats and Camtasia videos documenting how the agent collected the chats were sufficiently authenticated to be admitted in evidence and to establish that defendant was chatting with the purported minor victim (in reality a law enforcement officer); police officer’s testimony that defendant’s girlfriend’s son had a name similar to the one used by the person chatting with the purported minor was not inadmissible hearsay because it was not offered for the truth of the matter asserted, but rather was only used as investigatory background.

United States v. Ebron, 683 F.3d 105 (5th Cir. 2012) In prison murder case, district court did not abuse its discretion by admitting, as a statement against penal interest under Fed. R. Evid. 804(b)(3), a co-actor’s statement to another prisoner in which the co-actor incriminated; given that the statement here was made in casual conversation with another prisoner, and not in response to custodial interrogation, the Fifth Circuit declined to find this statement barred under the fractured opinions in Williamson v. United States, 512 U.S. 594 (1994), and Lilly v. Virginia, 527 U.S. 116 (1999).

United States v. Grant, 683 F.3d 639 (5th Cir. 2012) In health care fraud prosecution, district court did not plainly err in admitting an alleged co-conspirator’s statements against defendant under Fed. R. Evid. 801(d)(2)(E); statements regarding the payment of money for services renders in accomplishing the illegal goals of a conspiracy can be considered to be in the course and in

15 furtherance of the conspiracy; likewise, efforts to conceal an ongoing conspiracy can further the conspiracy by assuring that the conspirators will not be revealed and the conspiracy brought to an end.

United States v. Hale, 685 F.3d 522 (5th Cir. 2012) In prosecution of former police officer accused of escorting drug transports, district court did not err in excluding out-of-court statements made by defendant’s co-defendant, who became the government’s chief witness against defendant; defendant did not satisfy the predicates of Fed. R. Evid. 613(b) for allowing extrinsic evidence of a prior inconsistent statement, and the exclusion of these statements did not violate the Confrontation Clause, since defendant was allowed to ask the co-defendant about his statements; nor were the statements of co-defendant’s deceased father admissible under Fed. R. Evid. 804(b)(3), because the statements were not clearly against the declarant’s interest and because there were no corroborating circumstances that clearly indicated the statements’ trustworthiness.

C. Cross-Examination/Confrontation/Compulsory Process

Williams v. Illinois, 132 S. Ct. 2221 (2012). In rape case, allowing an Illinois state forensic specialist to testify about the results of DNA testing performed by non-testifying analysts (the Cellmark company, who produced a DNA profile from the vaginal swaps ) – and, particularly the fact that she matched the DNA profile produced by Cellmark to the DNA profile produced by her lab from a sample of defendant’s blood – did not violate the Confrontation Clause.

(1) Justice Alito, in a plurality opinion joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer, would hold that out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause; especially since this was a bench trial, it must be assumed that the judge did not rely on the out-of-court statements as proof of the truth of the matters asserted; as a second, independent basis for their decision, the plurality concluded that even if the report produced by Cellmark had been admitted in evidence, there would have been no Confrontation Clause problem because that report was very different from the sorts of extrajudicial statements that the Confrontation Clause was originally understood to reach; the report was produced before any suspect was identified, and it was sought not for the purpose of obtaining evidence to be used against defendant, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose; nor was the DNA profile Cellmark produced inherently inculpatory; under these circumstances, the “primary purpose” of the Cellmark report, viewed objectively, was not to accuse defendant to create evidence for use at trial.

(2) Justice Breyer filed an opinion stating that he would set the case for reargument after additional briefing, in the hope of getting “a proper, generally applicable answer” to a “difficult, important, and not squarely addressed” questions: namely, “How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise

16 made by) laboratory technicians? In this context, what, if any, are the outer limits of the ‘testimonial statements’ rule set forth in Crawford v. Washington, 541 U.S. 36 (2004)?”; in the absence of reargument, he joined the plurality opinion in full, which Justice Breyer found “basically consistent” with his current views on the subject.

(3) Justice Thomas filed an opinion concurring in the judgment; however, he concurred in the judgment only because he believed that “Cellmark’s statements lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause”; otherwise, he said, he “share[d] the dissent’s view of the plurality’s flawed analysis.”

(4) Justice Kagan filed a dissenting opinion, in which she was joined by Justices Scalia, Ginsburg, and Sotomayor; she disputed the plurality’s contention that the Cellmark report’s assertions had not been used to prove the truth of the matters asserted; rejecting both the plurality’s “primary purpose” analysis and Justice Thomas’s “formality and solemnity” analysis, she would find the Cellmark report a “testimonial” statement.

United States v. Bernegger, 661 F.3d 232 (5th Cir. 2011) District court did not violate defendant’s confrontation rights by refusing to permit testimony of a government witness regarding a transaction that was subject to a confidentiality agreement; defendant did not show that the transaction was relevant to the events for which defendant was on trial or that testimony regarding the transaction was more than marginally relevant to the witness’s credibility; additionally, the district court did not prohibit defendant from cross-examining the witness on the one discrepancy between the testimony before the jury and the witness’s outside-the-presence-of-the-jury offer of testimony; because the district court gave defendant sufficient latitude during his cross-examination of the witness, there was no Sixth Amendment violation.

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) In prosecution for providing material support to a foreign terrorist organization (Hamas), plus related charges, the district court did not violate the defendants’ confrontation rights by permitting two government witnesses to testify using pseudonyms; the district court properly held that the defendants’ interest in obtaining the names of the witnesses was outweighed by the government’s need to keep the information secret; having the witnesses’ true names would have been of only very limited value to the defense, and the defense did have large amounts of information with which to confront and cross-examine the witnesses; under all the circumstances, the defendants had a more than adequate opportunity to place the witnesses in their proper setting and put the weight of their testimony and their credibility to a test.

United States v. Cantu-Ramirez, 669 F.3d 619 (5th Cir. 2012) Introduction of post-arrest statements of brother/co-defendant in joint trial with defendant did not violate defendant’s Confrontation Clause rights; the statements were redacted to eliminate any reference to defendant, and the redacted statements were read to the jury in a way that did not reveal that there had been any redactions;

17 furthermore, the jury was instructed the statements were to be considered only against the co- defendant, and not against defendant.

Brown v. Epps, 686 F.3d 281 (5th Cir. 2012) In trial of Mississippi state defendant, convicted of the sale of crack cocaine, defendant’s Confrontation Clause rights were not violated by the introduction of a recording of conversations setting up a controlled drug deal between a government informant and two unidentified men because the statements were not “testimonial”; an objective analysis would conclude that the primary purpose of the unidentified individuals’ statements was to arrange the drug deal, not to create a record for trial; accordingly, the Fifth Circuit reversed the district court’s judgment granting federal habeas relief on defendant’s Confrontation Clause claim.

D. Prosecutorial Misconduct

United States v. Owens, 683 F.3d 93 (5th Cir. 2012) In bank-robbery case, district court did not abuse its discretion in denying defendant’s motion for a mistrial following the government’s mention of a digital scale found in defendant’s bedroom, in violation of an in limine order respecting extrinsic-offense evidence under Fed. R. Evid. 404(b); the district court sustained the defense objection thereto, thus cutting off further inquiry; in light of the cautionary instructions given, the district court could have reasonably concluded that this single reference to the digital scale did not warrant a mistrial.

E. Jury Instructions

United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011) District court did not abuse its discretion in giving a “flight” instruction (i.e., that defendant’s flight from law enforcement officers was evidence the jury could consider in determining his guilt); a flight instruction is proper when the evidence supports four inferences: (1) the defendant’s conduct constituted flight, (2) the defendant’s flight was the result of consciousness of guilt, (3) the defendant’s guilt related to the crime with which he was charged, and (4) the defendant felt guilty about the crime charged because he, in fact committed the crime; on the facts of this case, the jury could rationally have drawn each of these four inferences.

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) Jury charge on conspiracy to provide material support to a terrorist organization did not violate defendant’s First Amendment rights by allowing the jury to convict him solely for protected speech or association (based on pro-Hamas, anti-Israel musical and dramatic performances at Hamas fund-raising events); speech may itself be criminal under certain circumstances; additionally, even as to performances that predated the 1995 ban on support to Hamas, the jury instructions, read as a whole, did not permit the jury to convict defendant based on protected speech.

18 United States v. Jones, 664 F.3d 966 (5th Cir. 2011): (1) Even if the submission of a “deliberate ignorance” instruction was erroneous, any error was harmless in light of the substantial evidence of actual knowledge; this conclusion was not altered by the fact that the instruction did not contain a balancing instruction like that approved in United States v. Farfan-Carreon, 935 F.2d 678, 681 n.5 (5th Cir. 1991); district court did not abuse its discretion in refusing to give an instruction on entrapment by estoppel; defendants did not establish an evidentiary predicate of reliance on a government agent’s assurances of legality; defendants’ proposed ambiguity instruction and good-faith instruction were not correct statements of the law; finally, the district court did not err in refusing the defendants’ requested limiting instruction as an unreasonable comment on the evidence; the general instructions to the jury specifically conveyed that the jury was to consider only the federal crimes charged, and not violations of state rules and regulations.

(2) The verdict form misstated the level of mens rea necessary to convict one defendant of health care false statements, in violation of 18 U.S.C. § 1035; the mens rea for this crime is “knowingly and willfully,” but the verdict form told the jury they could find defendant guilty if he “knew, or should have known”; moreover, this error was not harmless because the case centered on defendant’s knowledge; accordingly, the Fifth Circuit reversed defendant’s health care false statement convictions; however, the jury verdict on the money laundering counts, although including additional detail, did not materially change the jury instructions on that count, and so it did not constitute reversible error.

United States v. Turner, 674 F.3d 420 (5th Cir. 2012) District court erred in giving aiding-and- abetting instruction with respect to carjacking counts, where 18 U.S.C. § 2 was not specifically cited in those counts of the indictment (although it was in others) and where there was no aiding-and- abetting scienter evidence to show that defendant, if not the principal, shared the intent of the principal; however, under the reasoning of Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curiam), reversal was not required, because there was no evidence that would have led the jury to convict on this erroneously submitted alternative theory of guilt.

United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) The district court did not err in giving a “deliberate ignorance” instruction in this case, because the predicates for the giving of such an instruction were present in this case; the Fifth Circuit also held that the Fifth Circuit pattern jury instruction on “deliberate ignorance” comports with the Supreme Court’s recent discussion of the subject in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011).

United States v. Grant, 683 F.3d 639 (5th Cir. 2012) In health care fraud prosecution, district court did not abuse its discretion in refusing to give a “missing witness” instruction with respect to a co- defendant who had pleaded guilty and was awaiting sentencing at the time of defendant’s trial, because defendant did not show that the co-defendant was peculiarly within the control of the government; moreover, the government’s decision not to call the co-defendant as a witness was already addressed in jury instructions to the effect that, although the government was not required

19 to call every witness possible, the jury could consider the government’s failure to call other witnesses or to produce other evidence shown to be in existence and available.

United States v. Hale, 685 F.3d 522 (5th Cir. 2012) In prosecution of former police officer for conspiracy to commit a drug offense, district court did not plainly err in failing to fully instruct the jury on the elements of the object offense; the district court’s instructions were sufficient to apprise the jury of the definition and character of the substantive crime underlying the conspiracy charge; furthermore, contrary to defendant’s argument, the use of actual cocaine was not necessary in order for defendant to be guilty of conspiracy (in actuality, these were dummy runs set up by an undercover agent); furthermore, the district court did not abuse its discretion in rejecting defendant’s requests for instructions on the public-authority defense or entrapment by estoppel; finally, the district court’s response to a jury note, which consisted primarily (though not solely) of referring the jury back to the original instructions, was not an abuse of discretion.

United States v. Jara-Favela, 686 F.3d 289 (5th Cir. 2012) In prosecution for attempted illegal reentry and making a false statement to Customs and Border Patrol agents, district court did not improperly comment on the evidence or direct a verdict in responding to the jury’s note questioning what defendant’s statement “I’m coming from the North” meant; the district judge acknowledged that his initial instructions to the jury might have prescribed a narrower view of the evidence than permissible and then took steps to cure any potential error by clarifying his statements and reminding the jurors of their factfinding authority; nor did the district court’s instructions to the jury constructively amend the indictment; the differences between the statements charged and those submitted to the jury for decision were not material and did not prejudice defendant.

F. Jury Deliberations and Verdict/Publicity

United States v. Barraza, 655 F.3d 375 (5th Cir. 2011) In case alleging that state judge offered to fix cases in return for sexual favors, one juror’s comments to other jurors that she was “all for” a guilty verdict, that men in power always made sexual advances, and that she had been sexually harassed on her job were not “extraneous prejudicial information,” or an “outside influence,” about which jurors could permissibly testify during an inquiry into the verdict pursuant to Fed. R. Evid. 606(b); rather, these were simply emotions influencing the juror or part of the juror’s mental processes, which were off-limits under Rule 606(b).

United States v. Jones, 664 F.3d 966 (5th Cir. 2011) A judge’s ex parte communications with the jury are reviewed for abuse of discretion and may constitute harmless error; here, the judge’s four relatively innocuous communications with the jury were harmless error.

United States v. Ebron, 683 F.3d 105 (5th Cir. 2012) In prison murder case, district court did not abuse its discretion by interviewing jurors in order to investigate allegations of juror misconduct; the district court likewise did not abuse its discretion in dismissing a juror for lack of candor and a failure to abide by instructions; because these reasons for dismissal did not implicate the deliberative process, the Fifth Circuit declined to scrutinize the dismissal of the juror under the more stringent

20 standard used by other circuits; the district court did not abuse its discretion either in refusing to grant defendant’s motion for mistrial following the dismissal of the juror; finally, the district court did not plainly err in its instructions to the remaining jurors with respect to the dismissal.

G. Other

United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc) Contrary to the panel decision in this case, the alleged trial errors in this case – namely, improper prosecutorial closing argument, the giving of a deliberate-ignorance instruction, and the failure to give an instruction under Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965) (instructing the jury that one cannot conspire with a government agent) – did not, either singly or cumulatively, require a new trial. (Judge Dennis filed a dissenting opinion, in which he was joined by Judge Wiener.)

United States v. Turner, 674 F.3d 420 (5th Cir. 2012) In Hobbs Act robbery/carjacking/firearms case, the district court may well have erred in refusing to allow defendant to put on at least one of two proposed surrebuttal witnesses to discredit a supposed jailhouse confession by defendant, evidence of which came in only in the government’s rebuttal case; however, even assuming this was error, the error was harmless based on the limited usefulness of the proposed surrebuttal evidence as well as the “overwhelming” other evidence of guilt.

United States v. Flores-Martinez, 677 F.3d 699 (5th Cir. 2012) District court did not unconstitutionally abridge defendant’s right to testify; trial defense counsel’s proffer suggested that defendant wished to testify only about concededly off-limits subjects, and the right to testify does not encompass the right to testify about inadmissible matters; although defendant asserted on appeal that he could have testified about other, admissible matters, it was not plain error for the district court to completely preclude defendant from testifying based on trial counsel’s proffer.

United States v. Aldawsari (In re Clark), 683 F.3d 660 (5th Cir. 2012) Journalist’s appeal of gag order in case involving terrorism charges was subject to the 60-day rule of Fed. R. App. P. 4(a), not the 14-day rule of Fed. R. App. P. 4(b); therefore, journalist’s notice of appeal was timely; furthermore, journalist had standing to appeal district court’s gag order because it affected his right to gather news; however, on the merits, the Fifth Circuit found that the gag order was not overly broad and did not violate the First Amendment; nor did it violate journalist’s Fifth Amendment due process rights.

United States v. Davis, 690 F.3d 330 (5th Cir. 2012). Sufficiency of the evidence was reviewed under the manifest miscarriage of justice standard because the defendant moved for judgment of acquittal at the close of the government’s evidence but not at the close of all the evidence. That is so even though the defendant did not testify on his own behalf or call any witnesses. However, because the defendant questioned the co-defendant, who took the stand, as well as witnesses called by the co-defendant, he was required to reurge motion for judgment of acquittal. Court held evidence was sufficient to prove that both defendants had conspired to commit and had committed illegal gambling.

21 VII. GUILTY PLEAS

A. Rule 11 Errors

United States v. Mason, 668 F.3d 203 (5th Cir. 2012), withdrawn and replaced by, 2012 WL 2680748 (5th Cir. July 6, 2012) (unpublished) District court committed “error” that was “plain” when, during guilty-plea colloquy, it failed to advise defendant – as required by Fed. R. Crim. P. 11(b)(1)(D) – of his right to court-appointed counsel, if financially eligible; however, the error did not affect defendant’s substantial rights because defendant nevertheless understood his right to have a lawyer appointed, and repeatedly asserted that he wanted to plead guilty and that he was satisfied with his retained counsel’s representation; based on these facts, the Fifth Circuit was satisfied that there was no reasonable probability that, but for the error, defendant would not have pleaded guilty. (In the original opinion, Judge Reavley, writing separately, would hold that, as he interpreted Rule 11(b)(1)(D), its admonition was necessary only where a defendant was not represented by an attorney at the plea proceeding, which was not the case here.)

United States v. Broussard, 669 F.3d 537 (5th Cir. 2012) District court did not plainly err in finding that there was a factual basis for defendant’s plea to two counts of using a facility of interstate commerce to attempt to coerce a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b); any error by the district court was subject to reasonable dispute, and, by definition, that is not plain error.

United States v. Carreon-Ibarra, 673 F.3d 358 (5th Cir. 2012) In accepting defendant’s plea to possession of a firearm in furtherance of a drug trafficking crime, the district court ran afoul of Fed. R. Crim. P. 11(b)(1)(G) & (I) when it told defendant that he was subject to a mandatory minimum penalty of five years, up to life imprisonment (the same range contained in the plea agreement); in fact, the indictment charged, and the judgment showed that the district court considered defendant to be convicted of, possession of a machinegun, subject to a mandatory minimum penalty of 30 years pursuant to 18 U.S.C. § 924(c)(1)(B)(ii); defendant preserved his objection for appellate review by objecting to the presentence report’s recitation of the 30-year statutory minimum, especially where it was not clear until entry of the written judgment that the district court had actually convicted and sentenced defendant under § 924(c)(1)(B)(ii); the district court’s erroneous penalty advice prevented defendant from understanding the nature of the charges against him and the direct consequences of his plea; moreover, defendant’s substantial rights were affected, notwithstanding the district court’s assurance that it would consider the entire five-to-life range of which it had erroneously admonished defendant, since defendant might reasonably have believed the district court’s sentencing would nevertheless still be constrained or at least influenced by the correct 30-year minimum; accordingly, the Fifth Circuit vacated defendant’s guilty plea on the count under consideration and remanded to allow defendant to plead anew.

22 B. Breach of Plea Agreement

United States v. Pizzolato, 655 F.3d 403 (5th Cir. 2011) Where defendant entered into a non-binding recommendation-type plea agreement under Fed. R. Crim. P. 11(c)(1)(B), in which the government stipulated that “the agreed upon Guideline range for this defendant is 151-188 months,” and also agreed that the sentences on all counts should run concurrently, the government did not breach the plea agreement by filing an opposition to defendant’s objections to the presentence report’s suggestion that an above-Guidelines sentence might be appropriate; by agreeing that a particular range was the applicable range under the Guidelines, the government did not obligate itself to recommend imposition of a sentence within that range; furthermore, the government’s response consisted principally of permissible factual rebuttal of assertions made by defendant in his objections to the PSR; finally, because the government did not breach the plea agreement, defendant was bound by the appeal-waiver provisions of that agreement, and thus he could not challenge the district court’s upward-variance sentence (from a range of 151-188 months, up to a total sentence of 360 months).

United States v. Loza-Gracia, 670 F.3d 639 (5th Cir. 2012) Where government stipulated in plea agreement to a Guideline base offense of 26, but the Probation Office independently determined that defendant was a “career offender” subject to a base offense level of 34, there was no breach of the plea agreement; the plea agreement did not purport to bind the Probation Office, nor could it, since the Probation Office is a branch of the federal judiciary; furthermore, the prosecutor at the sentencing hearing did not voice any support for or advocate for application of the “career offender” enhancement, but instead simply maintained that the government stood by the plea agreement; finding no breach of the plea agreement, the Fifth Circuit affirmed the sentence.

United States v. Hebron, 684 F.3d 554 (5th Cir. 2012) The government did plainly breach the plea agreement when, at sentencing, it advocated for a Guideline loss amount of $320,000 when, in the plea agreement, it agreed to a loss calculation of under $200,000; nevertheless, this plain breach did not affect defendant’s substantial rights because the district court based its loss decision on the presentence report, the Guidelines, and the defendant’s failure to articulate an alternative method of calculating loss; there was no indication that the government’s specific argument in favor of the higher loss calculation affected the sentence; moreover, even if the error had affected defendant’s substantial rights, this was not, under the circumstances of the case, one of the rare cases where the court of appeals should exercise its discretion to correct the error even on plain-error review.

VIII. SENTENCING

A. Constitutional Challenges

Southern Union Co. v. United States, 132 S. Ct. 2344 (2012). The rule of Apprendi v. New Jersey, 530 U.S. 466 (2000) – namely, that any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for must be proved to a jury beyond a reasonable doubt or

23 admitted by the defendant – applies to the imposition of criminal fines; therefore, where company was convicted of environmental crime by a jury of one count that could have been based on a single day’s violation, with a maximum fine of $50,000, it violated Apprendi for the district court to impose a $6 million fine and a “community service obligation of $10 million,” based on the court’s own determination that violations occurred on 762 days, thus giving rise to a maximum fine of $38.1 million. (Justice Breyer filed a dissenting opinion, in which he was joined by Justices Kennedy and Alito.)

Miller v. Alabama, 132 S. Ct. 2455 (2012). The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders; a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles; by requiring that juveniles convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, Alabama’s and Arkansas’s mandatory sentencing schemes violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment. (Justice Breyer filed a concurring opinion, in which he was joined by Justice Sotomayor. Chief Justice Roberts filed a dissenting opinion, in which he was joined by Justices Scalia, Thomas, and Alito. Justice Thomas filed a dissenting opinion, in which he was joined by Justice Scalia. Justice Alito filed a dissenting opinion in which he was joined by Justice Scalia.)

United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) Even if due process might require a heightened burden of proof for some sentencing determinations that bear significantly upon the sentence (and the Fifth Circuit noted that it had never so held), such a heightened burden of proof was not required here, and the district court did no err in refusing to apply one.

B. Rule 32/Other Statutory Challenges

Kawashima v. Holder, 132 S. Ct. 1166 (2012). The offenses of filing, and abetting and abetting in filing, a false tax return, in violation of 26 U.S.C. § 7206(1) and (2), are “aggravated felonies” under 8 U.S.C. § 1101(a)(43)(M)(i) when the loss to the government exceeds $10,000. (Justice Ginsburg, joined by Justices Breyer and Kagan, filed a dissenting opinion, in which she expressed her view that Congress did not intend to include tax offenses in § 1101(a)(43)(M)(i).)

Setser v. United States, 132 S. Ct. 1463 (2012). A federal district court has authority to order a federal sentence to run consecutively to an anticipated, but not-yet-imposed, state sentence; although 18 U.S.C. § 3584 does not address this situation, nothing in that statute or any other provision of law forecloses the exercise of district courts’ sentencing discretion in this situation; the Court rejected the argument that, in such a situation, 18 U.S.C. § 3621 places the concurrent/consecutive decision in the hands of the Federal Bureau of Prisons; § 3621 is a place-of-confinement provision, not a sentencing provision; finally, defendant’s sentence was not unreasonable simply because later events in state court made it impossible to implement (particularly, the federal district court ordered the federal sentence to run consecutively to one not-yet-imposed state sentence and concurrently with

24 another, but the state court later imposed concurrent sentences on the two state charges); that a sentence was thwarted does not make it unreasonable; accordingly, the Court affirmed the Fifth Circuit’s decision affirming defendant’s sentence. (Justice Breyer filed a dissenting opinion, in which he was joined by Justices Kennedy and Ginsburg.)

Dorsey v. United States, 132 S. Ct. 2321 (2012). The new, lower mandatory minimums contained in the Fair Sentencing Act of 2010 (“FSA”) (which took effect on August 3, 2010) apply to the post- Act sentencing of pre-Act offenders; although the federal saving statute (1 U.S.C. § 109) sets forth a general background principle that a repeal (including simply a diminution of penalties) does not normally change the penalties for one who committed his offense before the repeal, six considerations, taken together, persuaded the Court that the “plain import” or “fair implication” of the new statute was that Congress intended the FSA’s more lenient penalties to apply to offenders who committed crimes before August 3, 2010, but were sentenced after that date. (Justice Scalia filed a dissenting opinion in which he was joined by Chief Justice Roberts and Justices Thomas and Alito.) (NOTE: This decision overrules the Fifth Circuit’s contrary decision in United States v. Tickles, 661 F.3d 212 (5th Cir. 2011); see decision on GVR, 691 F.3d 592 (5th Cir. 2012).)

Descamps v. United States, cert. granted, 2012 WL 1031489 (Aug. 31, 2012) (No. 11-9540) (granting cert. to United States v. Descamps, 466 Fed. Appx. 563 (9th Cir. 2012) (unpublished)) Was the Ninth Circuit correct in holding, in United States v. Aguila-Montes de Oca, 653 F.3d 915 (9th Cir. 2011) (en banc), that a state conviction for burglary may, on the basis of the modified categorical approach, qualify as a conviction for generic “burglary,” even though the statute of conviction lacks an element of the generic offense? (NOTE: The Fifth Circuit has disagreed with the Ninth Circuit on this point. See United States v. Ortega-Gonzaga, 490 F.3d 393, 396 n.5 (5th Cir. 2007).)

Moncrieffe v. Holder, cert. granted, 132 S. Ct. 1857 (Apr. 2, 2012) (No. 11-702) (granting cert. to Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011)) Does a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitute an “aggravated felony,” notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal law felony? Argued Oct. 10, 2012. In Moncrieffe, the Fifth Circuit held that immigrant’s prior Georgia conviction for possession of an unspecified amount of marijuana with intent to distribute was properly considered a felony under the federal Controlled Substances Act and hence an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B); although distribution of a small amount of marijuana for no remuneration is only a misdemeanor under federal law. Immigrant argued that the government’s failure to prove drug quantity or remuneration meant that the government had failed to establish that his prior conviction was a qualifying “aggravated felony.” Court rejected the argument, holding that the default treatment of possession with intent to distribute is as a felony, not a misdemeanor, unless the defendant carries his burden of producing mitigating evidence qualifying him for misdemeanor treatment.

25 United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011) Regardless of whether it might have been an abuse of discretion to impose, as a condition of supervised release, a complete prohibition on alcohol consumption on defendant convicted of possession of methamphetamine with intent to distribute, any error here was not clear or obvious enough to amount to plain error (the applicable standard of review in light of the defendant’s failure to object to the supervised release condition); the Fifth Circuit noted the government’s argument that the presentence report demonstrated drug and alcohol use by the defendant.

United States v. Moreno-Gonzalez, 662 F.3d 369 (5th Cir. 2011) At least under the circumstances of this case, defendant’s proceeding to trial and asserting that the evidence was insufficient to convict him – resulting in a jury verdict of guilty – were incompatible with his claim that he had provided the government with all the information he had regarding the offense; on the record of this case, and given the jury verdict, the district court did not clearly err in disbelieving the latter claim and in denying safety-valve relief pursuant to 18 U.S.C. § 3553(f) and USSG § 5C1.2.

United States v. Miller, 665 F.3d 114 (5th Cir. 2011): (1) In case of defendant convicted of one count of transportation of child pornography, defendant’s within-Guidelines prison sentence of 220 months was not substantively unreasonable; the district court considered all the statutory factors in imposing sentence; along the way, the Fifth Circuit rejected the reasoning of the Second Circuit in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which was highly critical of the child pornography Guidelines.

(2) The district court did not abuse its discretion in imposing a special condition of supervised release forbidding use of any computer or any device with access to the Internet (including phones) without prior written permission; the Fifth Circuit found significant that the ban was not absolute or unconditional, and that the probation officer could grant permission to use a computer and/or to access the Internet; nor did the district court plainly err in imposing a special condition of supervised release forbidding the defendant to own a camera, photographic device, or video recording equipment without approval of the probation officer, given that defendant’s activities involved misuse of photographic/recording equipment; nor did the district court plainly err in imposing a special condition of supervised release forbidding defendant to acquire or possess “sexually stimulating or sexually oriented materials”; given the defendant’s background (involving consumption of adult pornography), there was no plain error in imposing such a condition; likewise, it was not plainly overbroad in violation of the First Amendment, nor was it so vague as to violate due process.

Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) On the record of defendant’s prior conviction for “sexual intercourse without consent,” in violation of Mont. Code § 45-5-503(1), defendant’s conviction could have rested on the basis of digital penetration of the victim; because in 1996 a large majority of states did not consider digital penetration to be “rape,” the Fifth Circuit held that digital penetration did not constitute “rape” within the meaning of 8 U.S.C. § 1101(a)(43)(A); because defendant’s prior conviction could not, on the record of conviction, be determined to be one for the “aggravated felony” of rape, the Fifth Circuit reversed the decision of

26 the Board of Immigration Appeals upholding defendant’s removal on the basis of that conviction and remanded for further proceedings. (Chief Judge Jones dissented.)

United States v. Camero-Renobato, 670 F.3d 633 (5th Cir. 2012) The Fifth Circuit clarified that its decision in United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) – finding the district court’s explanation for its sentence inadequate – involved not giving any reasons for the sentence beyond a bare recitation of the Guideline calculation; by contrast, the district court in this case entertained lengthy comments from both parties and then elaborated its particularized explanation for a within-Guidelines sentence; no more is required by way of explanation.

United States v. Asencio-Perdomo, 674 F.3d 444 (5th Cir. 2012) The district court did not err in treating defendant’s Indiana theft conviction (for which he was sentenced to a year and six months’ of imprisonment, suspended in favor of probation) as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G) and hence under USSG § 2L1.2(b)(1)(C); the Fifth Circuit rejected defendant’s argument that the phrase “term of imprisonment [of] at least one year” referred to only the mandatory minimum for the “offense” at issue (in this case, six months); the defendant’s reading is inconsistent with 8 U.S.C. § 1101(a)(48)(A), which makes clear that the “term of imprisonment” in this context refers to the actual sentence imposed.

United States v. Iqbal, 684 F.3d 507 (5th Cir. 2012) Despite the confidentiality normally attaching to presentence reports (“PSRs”) in federal criminal cases, the district court did not err in allowing disclosure of a redacted version of the PSR prepared in defendant’s structuring case to immigration officials; the immigration officials had a compelling, particularized need for the PSR in connection with proceedings to remove defendant from the United States; defendant’s interest in preventing the use of misleading or inaccurate information was obviated by the fact that the district court’s favorable rulings on defendant’s PSR objections were a matter of public record; likewise, any privacy concerns were obviated by redactions of personal information from the PSR; for these reasons, the public interest in disclosure of defendant’s redacted PSR to the immigration judge outweighed his remaining privacy interest and his interest against the dissemination of inaccurate information; finally, Department of Homeland Security attorneys did not behave contumaciously in attempting to introduce the PSR to the immigration judge without the district court’s permission, based on their interpretation of a limited redisclosure authorization in the PSR.

United States v. Garcia, 689 F.3d 362 (5th Cir. 2012) Defendant, who pleaded guilty to illegal reentry in the Southern District of Texas, was not entitled under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A(c), to the appointment of an additional court-appointed attorney in Iowa to attempt to get a prior Iowa conviction (that would be used as a predicate for enhancement of defendant’s illegal-reentry sentence) set aside; the challenge to a prior, unrelated conviction in a state court that could affect the sentence a defendant receives on a new federal conviction is not an “ancillary matte[r]” as to which counsel may be appointed under the CJA.

United States v. Broussard, 669 F.3d 537 (5th Cir. 2012) In sentencing defendant convicted of two counts of using a facility of interstate commerce to attempt to coerce a minor to engage in criminal sexual activity (in violation of 18 U.S.C. § 2422(b)), district court committed reversible plain error

27 in imposing a significantly above-Guidelines’ sentence of 40 years’ imprisonment, based in substantial part on the perceived need to incarcerate defendant for treatment to address his problems; under 18 U.S.C. § 3582(a), as construed in Tapia v. United States, 131 S. Ct. 2382 (2011), courts may not impose or lengthen a term of imprisonment to promote a defendant’s rehabilitation; although Tapia was not decided until after defendant’s sentencing, the error was plain in light of the law as it existed at the time of appeal; because the need for treatment played such a large part in the district court’s selection of this extraordinary sentence, the error affected defendant’s substantial rights and warranted correction even on plain-error review; accordingly, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc) On initial en banc consideration, the en banc Fifth Circuit held that, for purposes of plain-error review, when the law is unsettled at the time at the time of the forfeiture, but becomes clear while the case is pending on appeal, the plainness of the error is judged at the time of appeal; under that rule, defendant was entitled to the benefit of the Supreme Court’s decision in Tapia v. United States, 131 S. Ct. 2382 (2011), which was handed down after the sentencing hearing in this case; under Tapia, the district court plainly erred by considering, in setting defendant’s sentence, defendant’s need for anger- management treatment; because the error affected defendant’s substantial rights and warranted correction even on plain-error review, the Fifth Circuit vacated the sentence and remanded for resentencing. (Judge Smith filed a dissenting opinion, in which he was joined in whole by Chief Judge Jones and Judge Clement, and joined in part by Judge Garza. Judge Garza filed a dissenting opinion in which he was joined by Chief Judge Jones and Judges King, Smith, and Clement. Judge Owen filed a dissenting opinion in which she agreed with the majority’s adoption of the time-of- appeal rule, but would deny relief on the ground that the fourth prong of plain-error review was not satisfied.) (NOTE: The question of when an error must be “plain” under Fed. R. Crim. P. 52(b) is pending before the United States Supreme Court in Henderson v. United States, cert. granted, ____ U.S. ____, 2012 WL 894491 (June 25, 2012) (No. 11-9307).)

United States v. Teel, 691 F.3d 578 (5th Cir. 2012). When the term of imprisonment is not lengthened by the court’s consideration of an impermissible factor, any error is harmless. Here, upon remand for resentencing, the court considered the defendant’s post-offense rehabilitative conduct in dealing with his alcohol abuse as a basis for giving a below-guideline sentence. The record shows that the court’s consideration of alcohol treatment was based upon events in the past not anticipated rehabilitation in prison in the future.

United States v. Alvarado, 691 F.3d 592 (5th Cir. 2012). Lifetime supervised release in child pornography case was substantively unreasonable because district court automatically imposed without considering factors under 18 U.S.C. § 3553(a). At defendant’s guilty plea hearing, court stated “I’ve never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography.” Defendant was a 24 year old who met victim on adult social networking website, where she had posted a profile claiming she was 20 years old. They considered each other boyfriend and girlfriend. He asked her to make a sexually explicit video for him and he did the same for her. When he got arrested for marijuana, his cell phone was seized, and the videos were found.

28 She was 15. He was charged with production and receipt of child pornography. Fifth Circuit held that 170-month imprisonment sentence was reasonable.

United States v. Gerezano-Rosales, 692 F.3d 393 (5th Cir. 2012). Upward variance imprisonment sentence reversed as substantively unreasonable. In an illegal reentry case, the district court stated that it found the guidelines adequate and announced a within-guideline sentence of 71 months. The defendant, a Spanish speaker, who apparently knew a little English, questioned the amount of time and disagreed that it was an appropriate sentence. The court responded by increasing the sentence, citing the defendant being disrespectful as “changed circumstances.” After announcing the new sentence of 108 months, the court asked the defendant “Would you like to keep working up?” The defendant replied “no.” The Fifth Circuit held that the objection to the substantive reasonableness of 108-month sentence was preserved, even though defendant did not object after the sentence was imposed, based on (1) his earlier objection to 71-month sentence and (2) that it would have been futile and likely caused the district court to increase sentence even more. All three judges agreed that sentence was substantively unreasonable. Two of the judges found that the record supported the lower court’s finding that the defendant was disrespectful. Even so, those judges concluded that a three year upward variance was unreasonable, given that the court had previously announced a within-guideline sentence. The concurring judge disagreed that the record supported the “disrespectful” finding and opined instead that the defendant was just doing what the Circuit precedent required to preserve an objection to the substantive reasonableness of his sentence. See United States v. Peltier, 505 F.3d 389 (5th Cir. 2007).

C. (Selected) Guidelines Issues

United States v. Conn, 657 F.3d 280 (5th Cir. 2011) In case involving manufacture of methamphetamine, Application Note (C) to USSG § 2D1.11 requires the court to compute the base offense level using only the weight of the pure pseudoephedrine, not the entire gross weight of the tablets containing the pseudoephedrine; the Fifth Circuit held that this computation is a question of fact, not a question of law, and, as a question of fact, could not constitute plain error (at least in the absence of clear evidence that the weight was improperly that of the entire tablets).

United States v. Bernegger, 661 F.3d 232 (5th Cir. 2011) In fraud case, district court erred in attributing as “relevant conduct” to defendant two loans totaling some $471,000; in order to be “relevant conduct,” conduct must be shown to be criminal; here, however, there was no evidence that the two loans in question were obtained in a fraudulent or criminal manner; the fact that the presentence report (“PSR”) listed the grantors of the two loans as victims was not sufficient; bare assertions in a PSR are not evidence, in the absence of any facts or evidence supporting those assertions; this error was harmless vis-à-vis the prison sentence, as subtraction of the amount of the two loans would not change defendant’s Guideline offense level; however, the error did require modification of the restitution that defendant was ordered to pay; accordingly, the Fifth Circuit modified the restitution order to $1,725,000 (the total amount, less the amount of the two loans in question) and then affirmed the judgment as so modified.

29 United States v. Moreno-Gonzalez, 662 F.3d 369 (5th Cir. 2011) At least under the circumstances of this case, defendant’s proceeding to trial and asserting that the evidence was insufficient to convict him – resulting in a jury verdict of guilty – were incompatible with his claim that he had provided the government with all the information he had regarding the offense; on the record of this case, and given the jury verdict, the district court did not clearly err in disbelieving the latter claim and in denying safety-valve relief pursuant to 18 U.S.C. § 3553(f) and USSG § 5C1.2.

United States v. Reyes-Mendoza, 665 F.3d 165 (5th Cir. 2011) The district court reversibly erred in concluding that defendant’s prior conviction under Cal. Penal Code § 2L1.2 was a “drug trafficking offense” warranting a 16-level enhancement under USSG § 2L1.2(b)(1)(A)(i); in the absence of information to narrow the statute of conviction, the examining court must determine whether the statute could be violated in any way that does not meet the definition of the predicate offense; here, the California statute could be violated by production of a precursor to methamphetamine; the mere act of production of a precursor does not qualify as “manufactur[ing] a controlled substance” or any other of the listed types of “drug trafficking offenses”; nor does it qualify as an “attempt” to commit a “drug trafficking offense” because the mens rea for attempt is higher than the mens rea of the California statute; because the government did not show that this error was harmless, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

United States v. Rodriguez, 666 F.3d 944 (5th Cir. 2012) In sentencing defendant convicted of possession of methamphetamine with intent to distribute, district court did not err in enhancing defendant’s sentence under USSG § 2D1.1(b)(4) on the ground that the offense “involved the importation of amphetamine or methamphetamine . . . .”; even though the offense of importation was arguably complete (by the controlled substance’s reaching its final destination point) before defendant’s possession took place, that means only that she did not import the drugs, not that her possession did not “involve” importation; the scope of actions that “involve” the importation of drugs is larger than the scope of those that constitute the actual importation; the Fifth Circuit did not reach the question whether § 2D1.1(b)(4) contains an implicit mens rea of possession (requiring that a defendant know that the drugs were imported) because there was sufficient evidence to support a finding that this defendant knew the drugs were imported.

United States v. Sanchez, 667 F.3d 555 (5th Cir. 2012) The offense of attempt under Texas law is within the “generic, contemporary meaning” of the term “attempt”; although Texas’s attempt statute appeared to differ linguistically from the generic definition of “attempt,” in fact illegal reentry defendant could not show any case in which a Texas court applied the Texas attempt statute to criminalize conduct that would not satisfy the generic definition of attempt; because the object offense (sexual assault of a child) was a qualifying “crime of violence,” the district court did not err in holding that defendant’s conviction for attempted sexual assault of a child was a qualifying “crime of violence” for purposes of USSG § 2L1.2(b)(1)(A)(ii).

United States v. Nevares-Bustamante, 669 F.3d 209 (5th Cir. 2012) Where alien (1) was removed from the United States on March 1, 1989, (2) illegally reentered a month later, (3) was convicted of rape and armed criminal action in Missouri in 1990, (4) was released from Missouri’s custody without being turned over for removal, and then (5) was found illegally present in the United States,

30 defendant was not subject to a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of the 1990 convictions for rape and armed criminal action because no removal order issued after his 1990 convictions, nor had any prior removal order been reinstated; although the text of USSG § 2L1.2 could arguably support enhancement on the ground that defendant had “unlawfully remained in the United States” after a “crime of violence” conviction, the commentary to that Guideline made clear that there had to be a removal order issued after the conviction, which there was not in this case; moreover, the commentary was binding under the rule of Stinson v. United States, 506 U.S. 36 (1993); because the enhancement was erroneous under the Guideline’s commentary, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing. (Judge Haynes filed a specially concurring opinion.)

United States v. Greenough, 669 F.3d 567 (5th Cir. 2012) USSG § 2D1.1(a)(2) – providing for a base offense level of 38 in a drug-trafficking case if “the offense of conviction establishes that death or bodily injury resulted from the use of the substance” – applies only when the death or serious bodily injury resulting is also part of the crime of conviction, i.e., specifically charged in the indictment, and either found by the jury or admitted by the defendant in connection with her plea; the district court therefore should not have applied USSG § 2D1.1(a)(2) in sentencing defendant; however, because the error was subject to reasonable dispute, it was not “plain”; therefore, on plain- error review (applicable because defendant did not object on this basis in the court below), defendant was not entitled to relief; because the evidence was sufficient to support the enhancement (defendant did make this objection below), the Fifth Circuit affirmed the sentence.

United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. 2012) District court reversibly erred in treating illegal-reentry defendant’s prior Oklahoma conviction for domestic assault and battery (in violation of Okla. Stat. tit. 21, § 644C) as a “crime of violence” warranting a 16-level enhancement under USSG § 2L12.(b)(1)(A)(ii); because Oklahoma law made clear that the offense could be committed by “only the slightest touching,” the offense lacked the requisite “use of force” element.

United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. 2012) District court did not commit reversible plain error in applying a 16-level “crime of violence” enhancement to illegal-reentry defendant on the basis of his 2009 Florida conviction for sexual activity with a minor, in violation of Fla. Stat. § 794.05; even if the statute of conviction was overbroad in that it covered victims who were not generic “minors,” defense counsel made an evidentiary admission that the victim was only 14 years old; this either qualified the prior offense as generic “sexual abuse of a minor, or, at a minimum, meant that any error in the categorization of the prior offense did not impugn the fairness, integrity, or public reputation of judicial proceedings; accordingly, the Fifth Circuit affirmed the sentence. (Judge Haynes filed a dissenting opinion.)

United States v. Goluba, 672 F.3d 304 (5th Cir. 2012) In sentencing defendant convicted of receipt of child pornography, district court did not err in refusing to grant defendant a two-level reduction under USSG § 2G2.2(b)(1); “the defendant’s conduct” – which included relevant conduct – was [not] limited to the receipt or solicitation of material involving the sexual exploitation of a minor,” but rather extended to trying to entice minors to engage in sexually explicit conversations and sexual

31 acts, and also discussing his interest in sexually exploiting children with others; accordingly, the Fifth Circuit affirmed defendant’s sentence. (Judge DeMoss filed a dissenting opinion.)

United States v. Asencio-Perdomo, 674 F.3d 444 (5th Cir. 2012) The district court did not err in treating defendant’s Indiana theft conviction (for which he was sentenced to a year and six months’ of imprisonment, suspended in favor of probation) as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G) and hence under USSG § 2L1.2(b)(1)(C); the Fifth Circuit rejected defendant’s argument that the phrase “term of imprisonment [of] at least one year” referred to only the mandatory minimum for the “offense” at issue (in this case, six months); the defendant’s reading is inconsistent with 8 U.S.C. § 1101(a)(48)(A), which makes clear that the “term of imprisonment” in this context refers to the actual sentence imposed.

United States v. Solis, 675 F.3d 795 (5th Cir. 2012) In United States v. Jasso, 634 F.3d 305 (5th Cir. 2011), the Fifth Circuit held that a defendant who falls into Criminal History Category II or higher – thus disqualifying him for the “safety valve” relief from a statutory minimum sentence found in 18 U.S.C. § 3553(f) and USSG § 5C1.2 – is not rendered eligible for “safety valve” relief simply because the district court departs down to a Criminal History Category of I pursuant to USSG § 4A1.3; in Jasso, however, the Fifth Circuit relied upon Amendment 651 (effective November 1, 2003), which made this point explicit; here, the Fifth Circuit determined that the same was true even before it was made explicit by Amendment 651; therefore, defendant, who had more than one criminal history point, was not eligible for “safety valve” relief for his pre-amendment crime, even though the district court departed downward to a Criminal History Category of I for over- representation of criminal history pursuant to USSG § 4A1.2; accordingly, on the government’s appeal of the district court’s “safety valve” sentence, the Fifth Circuit vacated the defendant’s below- statutory-minimum sentence and remanded for resentencing without the “safety valve.”

United States v. Claiborne, 676 F.3d 434 (5th Cir. 2012) District court did not clearly err in refusing to grant drug defendant a reduction for minor role pursuant to USSG § 3B1.2, because defendant did not carry his burden of showing that he was substantially less culpable than the average participant; nor did the district court plainly err in applying an enhancement for obstruction of justice pursuant to USSG § 3C1.1; a district court’s determination that a defendant has obstructed justice is a factual finding, and questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error. (Chief Judge Jones filed a concurring opinion defending the principle that questions of fact can never constitute plain error. Judge Prado filed a concurring opinion criticizing that principle and its application in this case.)

United States v. Espinoza, 677 F.3d 730 (5th Cir. 2012) Under USSG § 4A1.2(a)(2), district court plainly erred in assessing separate criminal history points for two Texas convictions/sentence that occurred on a single day in 2006, for offenses that were not separated by an intervening arrest; although the 30-month sentence imposed on defendant fell within the correct Guideline range, the Fifth Circuit pretermitted any inquiry as to whether this error affected defendant’s substantial rights, as the Fifth Circuit was already ordering a full resentencing based on an error in ordering restitution.

32 United States v. Diaz-Gomez, 680 F.3d 477 (5th Cir. 2012) In sentencing defendant for attempted export of arms, in violation of 18 U.S.C. § 554, the district court did not err in applying, under the pre-Nov. 1, 2011 version of USSG § 2M5.2, a base offense level of 26; the Fifth Circuit held that, under that version of the Guidelines, the lower base offense level of 14 was limited to cases where a defendant possessed only non-fully automatic arms in a quantity not greater than 10; thus, the fact that defendant also possessed ammunition (611 rounds) for his non-fully automatic firearm disqualified him from the lower base offense level.

United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. 2012) In sentencing defendant convicted of attempted illegal reentry, district court reversibly erred in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of defendant’s prior Arkansas conviction for aggravated assault (in violation of Ark. Code § 5-13-204(a)(1)); because Arkansas does not require any assault (that is, any contact or injury or attempt or threat of offensive contact or injury), that takes the Arkansas offense outside the generic definition of “aggravated assault” as gleaned from the Model Penal Code; for similar reasons, the offense does not qualify as a “crime of violence” under the residual, “has as an element” portion of the “crime of violence” definition; because the government did not show that this error was harmless, the Fifth Circuit vacated and remanded for resentencing.

United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012) In sentencing defendant convicted of attempted illegal reentry and false personation, district court reversibly erred in applying a 16- level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of defendant’s prior Oklahoma conviction for kidnapping (in violation of Okla. Stat. tit. 21, § 741); the particular statutory subsection under which defendant was previously convicted could be violated in a way that was outside the generic definition of “kidnapping,” in much the same way as the California kidnapping statute at issue in United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. 2008); nor did the offense does not qualify as a “crime of violence” under the residual, “has as an element” portion of the “crime of violence” definition because the term “forcibly” in the Oklahoma statute did not necessarily equate to the “physical force” required for this enhancement; accordingly, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing. (Judge Higginson filed a dissenting opinion.) Rehearing en banc denied, ___ F.3d ___, 2012 WL 4053804 (5th Cir. Sept. 17, 2012) Judge Jolly wrote opinion dissenting to denial of rehearing en banc; noted that the Supreme Court had granted certiorari in United States v. Descamps, 466 F. App’x 563 (9th Cir. 2012), cert. granted, 2012 WL 1031489 (U.S. Aug. 31, 2012) (No. 11-9540), which “presents a question affecting our own analysis.”

United States v. Serfass, 684 F.3d 548 (5th Cir. 2012) The two-level sentencing enhancement of USSG § 2D1.1(b)(5) applies when “the offense involved the importation of . . . methamphetamine,” even if the defendant did not know that the methamphetamine he possessed was imported; because the district court did not clearly err in finding that the methamphetamine possessed by defendant was in fact imported, the Fifth Circuit affirmed the § 2D1.1(b)(5) enhancement. (Judge Graves concurred in the judgment only.)

33 United States v. Hebron, 684 F.3d 554 (5th Cir. 2012) The district court did not reversibly err in calculating the loss attributable to defendant convicted of FEMA fraud in connection with hurricane relief provided to the town of which he was the mayor; although the government generally bears the burden of proving that the alleged intended loss was garnered by fraudulent means, where the government has shown that the fraud was so extensive and pervasive that separating legitimate benefits from fraudulent ones is not reasonably practicable, the burden shifts to the defendant to make a showing that particular amounts are legitimate; otherwise, the district court may reasonably treat the entire claim for benefits as intended loss.

United States v. Teuschler, 689 F.3d 397 (5th Cir. 2012) In sentencing defendant convicted for distribution of child pornography, district court reversibly erred, under United States v. Fowler, 216 F.3d 459 (5th Cir. 2000), in applying a three-level enhancement under USSG § 2G2.2(b)(7)(B) based on the number of additional images found on defendant’s computer; the government failed to show that the extra images, recovered in a search of defendant’s computer nearly two months after the offense of conviction, were “relevant conduct” with respect to the offense of conviction; under Fowler, such a showing requires more than simply showing that both the images distributed and the images possessed were child pornography.

United States v. Dominguez-Alvarado, ___ F.3d ___, 2012 WL 3985136 (5th Cir. Sept. 12, 2012). Under guidelines effective Nov. 1, 2011, the court “ordinarily should not impose” supervised release on a defendant who is a deportable alien likely to be deported. The court should impose supervised release, however, if the court determines that, under the facts & circumstances of the particular case, it will provide additional deterrence and protection. Here, court imposed three years of supervised release and the defendant objected that it was a “departure.” On appeal, the Fifth Circuit held that imposing supervised release under the guideline did not constitute a departure and it reviewed the defendant’s challenge for plain error. The court stated “[t]o be sure, supervised release should not be imposed absent a determination that supervised release would provide an added measure of deterrence and protection on the facts and circumstances of a particular case.” It then held that the court, in this case, had voiced a sufficient particularized explanation.

United States v. Hernandez, 690 F.3d 613 (5th Cir. 2012). A panel majority held that there was plain error in the guideline calculation and ordered the sentence vacated and remanded for resentencing. Judge Smith dissented, agreeing that there was plain, obvious error but arguing that court should not exercise its discretion to correct the error. “The majority perpetuates this court’s unseemly habit” of being so permissive on plain error review. That this approach “encourages litigants to abuse the judicial process and bestirs the public to ridicule it.”

United States v. Rodriguez, ___ F.3d ___, 2012 WL 4513839 (5th Cir. Oct. 3, 2012). Majority opinion held that the defendant’s argument was foreclosed by Circuit precedent. The defendant argued that his prior Texas conviction for sexual assault of a child, under Texas Penal Code § 22.011(a)(2), was not a crime of violence because it criminalized conduct broader than that covered by the generic contemporary definitions of statutory rape or sexual abuse of a minor because it set the age of consent at 17. Judge Graves filed a concurring opinion in which he criticized the Circuit’s precedent on the Texas statute as being either not well reasoned or as not having addressed

34 the age of consent issue. He noted that, in addressing challenges to some California statutes, which defined minor as under 18, the court had held those statutes overbroad because the majority of states set the age of consent at 16. Under this well-reasoned precedent, this Texas statute would also be overly broad. He called for the court to “definitely determine the ‘generic, contemporary meanings’” of statutory rape and sexual abuse of a minor and to “apply these definitions uniformly.”

United States v. Quiroga-Hernandez, ___ F.3d ___, 2012 WL 4513834 (5th Cir. Oct. 3, 2012). Majority opinion held the defendant’s argument was foreclosed by Circuit precedent. The defendant argued that his prior Texas conviction for indecency with a child by sexual contact, under Texas Penal Code § 21.11(a)(1), was not a crime of violence because it criminalized conduct broader than that covered by the general contemporary definition of sexual abuse of a minor because it set the age of consent at 17. Judge Graves concurred in judgment only; see his concurring opinion in United States v. Rodriguez, ___ F.3d ___, 2012 WL 4513839 (5th Cir. Oct. 3, 2012).

United States v. Romero-Rosales, 690 F.3d 409 (5th Cir. 2012). Holding that defendant’s prior Florida conviction for lewd, lascivious act upon a child under the age of 16, that involved sexual intercourse with the child, constituted sexual abuse of a minor for purposes of 16-level increase under the illegal reentry guideline § 2L1.2.

D. Fines and Restitution

In re Unknown, ___ F.3d ___, 2012 WL 4477444 (5th Cir. Oct. 1, 2010) (en banc). En banc court reviewed a set of appeals arising from two separate criminal judgments issued by two different district courts within the circuit. Both appeals involved restitution requests, under the Crime Victims Rights Act (“CVRA”), 18 U.S.C. § 3771(a)(6), by Amy, a former minor who was depicted in images of child pornography possessed by the criminal defendants. Fifth Circuit held that minor could seek redress via a petition for a writ of mandamus from an order denying her request for restitution under the CVRA. Fifth Circuit also rejected the requirement, imposed by one of the district courts, that there had to be a showing that the offense of conviction proximately caused the minor’s losses; only losses under the catchall provision of 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate-cause limitation; the other categories of losses, set out in subsections (A) through (E) are not. Cases were remanded to district courts to order restitution for the full amount of Amy’s losses. (Judge Davis, joined by Judges King, Smith, and Graves, filed an opinion concurring and dissenting. They dissented from the majority’s opinion as to no proximate cause requirement and as to the requirement of the full amount of the victim’s losses being imposed on each defendant.) [Fifth Circuit acknowledged that its ruling as to a proximate cause requirement conflicted with opinions from the 9th and 11th Circuits.]

United States v. Espinoza, 677 F.3d 730 (5th Cir. 2012) Where defendant was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, did not authorize an order of restitution to the pawn shop to which defendant had sold the stolen firearms of whose possession he was convicted (the pawn shop was out the $525 pawn money given to defendant when the stolen firearms were

35 returned to their owners); the pawn shop’s loss was not a direct and proximate result of the offense of conviction, i.e., defendant’s possession of the firearms, but rather resulted from the theft and subsequent pawning of the firearms; accordingly, the pawn shop was not a “victim” within the meaning of the VWPA, and the restitution order was improper; although the Fifth Circuit has taken different courses where restitution was improperly ordered (sometimes ordering a full resentencing, and sometimes simply vacating only the restitution order), here the Fifth Circuit chose to order a full resentencing, because restitution was only one component of the sentencing court’s balance of sanctions, and also because of a plain error in the calculation of the Sentencing Guidelines for imprisonment.

United States v. Chemical & Metal Industries, Inc., 677 F.3d 750 (5th Cir. 2012) District court reversibly erred in imposing a $1,000,000 fine on corporation pursuant to the alternative-fine provisions of 18 U.S.C. § 3571(d), because, as the government conceded, there was no evidence of any pecuniary loss or gain as required by that provision; the district court also erred in imposing a $2,000,000 restitution order because, as the government also conceded, there was no proof of loss; although the government requested a remand for it to present evidence supporting imposition of a fine and restitution, the Fifth Circuit declined to do so because “[t]he government generally may not present new evidence on remand when reversal is required due to the failure to present evidence originally”; accordingly, the Fifth Circuit vacated the restitution order and modified the fine to $500,000, the maximum available under the general fine provisions of 18 U.S.C. § 3571(c).

United States v. Teel, 691 F.3d 578 (5th Cir. 2012). The district court did not err in considering the defendant’s financial resources in deciding to impose an upward variance as to the fine. The court was not improperly referring to the defendant’s socioeconomic status but rather was properly considering his ability to pay the fine and the need for the fine to be sufficiently punitive.

United States v. Estill, 2012 WL 4714921 (5th Cir. Oct. 4, 2012), unpub. EDTX. The defendant was convicted of possession of stolen mail, under 18 U.S.C. § 1708. The Fifth Circuit held that the district court did not have authority to order defendant to pay, as costs of prosecution, the costs of the investigation by the Postal Service. The costs of prosecution that can be assessed against a defendant are set out in 28 U.S.C. § 1920, unless explicitly authorized by some other statutory or contractual authority. Costs of investigation are not included in this group. The court vacated the imposition of costs against the defendant.

E. Resentencing/Sentence Reduction

United States v. Garcia, 655 F.3d 426 (5th Cir. 2011) District court did not abuse its discretion in declining to reduce crack cocaine defendant’s sentence by more than the two levels permitted by Amendment 706 to the Sentencing Guidelines; the Fifth Circuit held that USSG § 1B1.10(b) – limiting the sentence reductions that district courts could grant under 18 U.S.C. § 3582(c) – did not violate the separation-of-powers doctrine; Congress expressed its wish for the Sentencing Commission’s policy statements to be binding in § 3582(c) proceedings, and it made a valid delegation of the authority to delineate the circumstances under which a § 3582(c) reduction would be appropriate. (Judge Haynes concurred in the judgment only.)

36 F. Time Credit/Place and Conditions of Confinement/Release on Parole

Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. 2012) Where federal prisoner, who was an alien subject to a detainer, challenged the Federal Bureau of Prisons’ regulations excluding him from consideration for participation in drug-treatment programs and release to a halfway house, district court erred in dismissing action for lack of subject-matter jurisdiction; because participation in these programs could decrease defendant’s sentence, defendant’s claims were properly raised under 28 U.S.C. § 2241; furthermore, district court’s alternative ruling that defendant had not properly exhausted administrative remedies was also in error; an attempt to exhaust would have been futile, since he raised constitutional challenges to the regulations that the agency charged with enforcing them clearly would reject; however, on the merits, defendant was not entitled to relief; these programs did not create any liberty interest in early release that could support a due-process claim; nor did defendant show an equal-protection violation, because there was a rational basis for the regulations in question.

G. Forfeiture/Return of Property Under Fed. R. Crim. P. 41(g)

United States v. Marquez, 685 F.3d 501 (5th Cir. 2012) District court plainly violated the mandatory requirements of Fed. R. Crim. P. 32.2 by failing to make a forfeiture determination as soon as practicable after defendant’s guilty plea was accepted, and by failing to enter a preliminary order of forfeiture setting forth the amount of the money judgment ultimately ordered ($2 million); nevertheless, defendant was not entitled to relief on plain-error review because he failed to show that the errors affected his substantial rights, i.e., that there was a reasonable probability that the result of the proceedings would have been different had the district court followed the appropriate procedures; accordingly, the Fifth Circuit affirmed the judgment.

X. APPEAL

Henderson v. United States, cert. granted, 2012 WL 894491 (June 25, 2012) (No. 11-9307) (granting cert. to United States v. Henderson, 646 F.3d 223 (5th Cir. 2011), on denial of reh’g en banc, 665 F.3d 160 (5th Cir. 2011) (en banc)) When the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, should an appellate court reviewing for “plain error” assess the “plainness” of the error as of the time of trial, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should the appellate courts assess the “plainness” of the error only at the time of trial, as the D.C. and Ninth Circuits do, and as the panel below did? Argument set for Nov. 28, 2012.

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): (1) The attorney who filed the notice of appeal on behalf of defendant organization Holy Land Foundation was without authority to file a notice of appeal on the organization’s behalf, notwithstanding the district court’s appointment of her for that purpose; because no representative of the organization authorized the attorney to file a notice of appeal on the organization’s behalf, the notice of appeal was unauthorized and hence invalid, thereby depriving the Fifth Circuit of

37 jurisdiction; accordingly, the Fifth Circuit dismissed the organization’s appeal for want of jurisdiction.

(2) The Fifth Circuit likewise had no jurisdiction over one defense attorney’s appeal of unfavorable language about her conduct contained in a court order; because the order stopped short of an actual finding of professional misconduct and did not impose a sanction, it did not present an appealable/justiciable issue.

In re Marcum L.L.P., 670 F.3d 636 (5th Cir. 2012) Where the Chief Judge of the Fifth Circuit issued an order authorizing only partial payment for expert services in a pending district court case and ordering the experts to keep working on the case, Fifth Circuit had no appellate jurisdiction or mandamus authority with respect to the Chief Judge’s action; as an order issued pursuant to the Chief Judge’s authority under 18 U.S.C. § 3006A(e)(3) of the Criminal Justice Act, that order could be reviewed only by a mandamus action filed with the United States Supreme Court.

United States v. Turner, 674 F.3d 420 (5th Cir. 2012) Under the reasoning of Luce v. United States, 469 U.S. 38 (1984), defendant waived his right to complain on appeal about the district court’s ruling on whether defendant could limit his testimony; when the district court ruled that defendant would be subject to cross-examination about a particular robbery (for which defendant had not been charged federally and as to which defendant wished to invoke his Fifth Amendment privilege), defendant elected not to testify; as in Luce, defendant’s decision not to testify made it impossible to evaluate whether and to what extent defendant was harmed; accordingly, under the reasoning of Luce and United States v. Nivica, 887 F.2d 1110, 1116-17 (1st Cir. 1989), defendant’s claim was unreviewable.

United States v. Chemical & Metal Industries, Inc., 677 F.3d 750 (5th Cir. 2012) Corporation’s waiver of appeal did not bar its challenge to the restitution order imposed by the district court; an order of restitution that exceeds the victim’s actual losses or damages is an illegal sentence and is a “punishment in excess of the statutory maximum,” an explicit exception to the appeal waiver under consideration.

United States v. Aldawsari (In re Clark), 683 F.3d 660 (5th Cir. 2012) Journalist’s appeal of gag order in case involving terrorism charges was subject to the 60-day rule of Fed. R. App. P. 4(a), not the 14-day rule of Fed. R. App. P. 4(b); therefore, journalist’s notice of appeal was timely; furthermore, journalist had standing to appeal district court’s gag order because it affected his right to gather news; however, on the merits, the Fifth Circuit found that the gag order was not overly broad and did not violate the First Amendment; nor did it violate journalist’s Fifth Amendment due process rights.

United States v. Scallon, 683 F.3d 680 (5th Cir. 2012) Defendant’s appeal of the district court’s denial of defendant’s motion to modify supervised release conditions (made pursuant to 18 U.S.C. § 3583(e)(2)) was barred by the appeal-waiver provisions of defendant’s original plea agreement, which barred defendant from appealing his conviction or sentence on any ground and from contesting his sentence in any post-conviction proceeding; defendant’s motion attacked conditions

38 of supervised release imposed as part of the original sentence; the Fifth Circuit left open the question of whether an appeal waiver would bar an appeal from an order modifying or revoking supervised release where that modification or revocation was sought by the government in a § 3583(e)(2) motion.

United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. July 25, 2012) (en banc) On initial en banc consideration, the en banc Fifth Circuit held that, for purposes of plain-error review, when the law is unsettled at the time at the time of the forfeiture, but becomes clear while the case is pending on appeal, the plainness of the error is judged at the time of appeal; under that rule, defendant was entitled to the benefit of the Supreme Court’s decision in Tapia v. United States, 131 S. Ct. 2382 (2011), which was handed down after the sentencing hearing in this case; under Tapia, the district court plainly erred by considering, in setting defendant’s sentence, defendant’s need for anger- management treatment; because the error affected defendant’s substantial rights and warranted correction even on plain-error review, the Fifth Circuit vacated the sentence and remanded for resentencing. (Judge Smith filed a dissenting opinion, in which he was joined in whole by Chief Judge Jones and Judge Clement, and joined in part by Judge Garza. Judge Garza filed a dissenting opinion in which he was joined by Chief Judge Jones and Judges King, Smith, and Clement. Judge Owen filed a dissenting opinion in which she agreed with the majority’s adoption of the time-of- appeal rule, but would deny relief on the ground that the fourth prong of plain-error review was not satisfied.) (NOTE: The question of when an error must be “plain” under Fed. R. Crim. P. 52(b) is pending before the United States Supreme Court in Henderson v. United States, cert. granted, 2012 WL 894491 (June 25, 2012) (No. 11-9307).)

United States v. Serrano-Lara, ___ F.3d ___, 2012 WL 4872690 (5th Cir. Oct. 16, 2012). District court erred in striking the appeal waiver provision in the defendant’s plea agreement. The defendant entered into a plea agreement with the Government to plea guilty to one count of alien transporting. The parties agreed that the guidelines did not bind the district court, and the Government reserved the right to dispute facts and factors at sentencing. The defendant pleaded guilty before a magistrate judge. The presentence report was prepared and provided additional details of the defendant’s transporting conduct, including allegations that he had raped one of the aliens and threatened to shoot her minor daughter. The report recommended an upward departure. The district court issued an order stating that it was considering an upward departure or variance. The court later accepted the defendant’s guilty plea. At sentencing, the rape victim testified. The government requested an upward departure or variance. The court imposed a non-guideline sentence of 120 months, but struck the appeal waiver provision of the plea agreement. The defendant appealed. The Fifth Circuit addressed, as an issue of first impression, whether the district court had the authority to strike the appeal waiver. It held that the court did not. The court could accept or reject the plea agreement. But once the court accepted the plea agreement, it could not perform a “judicial line-item veto.” The Fifth Circuit dismissed the appeal.

39 X. REVOCATION OF PROBATION/SUPERVISED RELEASE/PAROLE

A. Probation

United States v. Kippers, 685 F.3d 491 (5th Cir. 2012) Like supervised-release-revocation sentences, sentences imposed upon revocation of probation are reviewed under the “plainly unreasonable” standard; although district court had originally announced its intention of simply extending defendant’s probation rather than revoking it, the district court changed its mind when defendant accused his daughter – the victim of the assault triggering the revocation proceeding – of being a liar; nevertheless, the sentence was not procedurally unreasonable because the record showed that the district court considered the 18 U.S.C. § 3553(a) factors at least implicitly, did not select a sentence based on clearly erroneous facts, and did not fail to adequately explain his sentence; nor was the 48-month revocation sentence unreasonable, notwithstanding the fact that the Chapter 7 Guidelines suggested a range of 3 to 9 months, in light of the district court’s leniency in originally sentencing defendant and the gravity of the crime triggering revocation.

B. Supervised Release

United States v. Receskey, ___ F.3d ___, 2012 WL 4900825 (5th Cir. Sept. 28, 2012). In imposing above-guideline imprisonment sentence upon revocation of supervised release, the district court did not commit error under Tapia v. United States, 131 S. Ct. 2382 (2011), because the court’s concern over rehabilitation was merely an additional justification not a dominant factor in the court’s analysis. Courts commit Tapia error, in the context of revocation, when they lengthen a defendant’s sentence expressly to make him eligible for a Bureau of Prisons (BOP) treatment program. Here, after mentioning defendant’s many wasted opportunities, the court stated its intention to apply the statutory sentencing factors, and then imposed the above-guideline imprisonment sentence. Only after doing so did the court discuss the opportunities for rehabilitation and urge the defendant to take advantage of them.

United States v. Polydore, 2012 WL 4357437 (5th Cir. Sept. 25, 2012) unpub. EDTX. The Fifth Circuit held that previously imposed term of home detention was not a term of imprisonment for purposes of calculating the maximum available term of supervised release that could be imposed upon revocation, under 18 U.S.C. § 3583(h). Earlier case of United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004) had held that, following revocation of supervised release, home detention imposed as a condition of supervised release had to be credited against maximum term of imprisonment that could also be imposed. Judge Owens joined fully with majority opinion, but filed concurring opinion that questioned validity of the Ferguson holding.

40 XI. POST-CONVICTION

A. 18 U.S.C. § 2255

Chaidez v. United States, cert. granted, 132 S. Ct. 2101 (Apr. 30, 2012) (No. 11-820) (granting cert. to Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011)) Does Padilla v. Kentucky, 130 S. Ct., 1473 (2010) – in which this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation – apply to persons whose convictions became final before its announcement? (NOTE: The Fifth Circuit answered this question in the negative in United States v. Amer, 681 F.3d 211 (5th Cir. 2012).)

In re Sparks, 657 F.3d 258 (5th Cir. 2011) Fifth Circuit granted federal defendant authorization to file a successive motion under 28 U.S.C. § 2255 because the claim defendant proposed to litigate – that, under Graham v. Florida, 130 S. Ct. 2011 (2010), his life-without-parole sentence for a carjacking violated the Eighth Amendment, since he was under 18 at the time of the crime – met the standard for second or successive motions set out in 28 U.S.C. § 2255(h); particularly, Graham was a new and retroactive rule of constitutional law; since defendant made a sufficient prima facie showing that he might be entitled to relief under Graham, he was entitled to file a successive § 2255 motion on that issue.

In re Lampton, 667 F.3d 585 (5th Cir. 2012) Federal defendant’s motion to vacate sentence was indeed “second or successive” within the meaning of 28 U.S.C. § 2255; defendant could not avail himself of the holding of Magwood v. Patterson, 130 S. Ct. 2788 (2010), which held that when a first habeas petition results in the issuance of a new judgment, a later-in-time petition challenging that new judgment is not a “second or successive petition” under the AEDPA; defendant’s previous § 2255 petition did not result in the issuance of a new judgment within the meaning of Magwood; rather, the previous § 2255 simply resulted in the vacatur of the conviction and sentence on a lesser- included count, as a remedy for the double-jeopardy violation caused by convicting and sentencing on both the greater offense and the lesser-included offense; the judgment of conviction and sentence on the greater offense remained undisturbed; the Fifth Circuit thus concluded that defendant was challenging the same judgment of conviction that was the subject of his first § 2255 petition and was a “second or successive” petition under 28 U.S.C. § 2255(h) (the Fifth Circuit noted that the Second Circuit had reached a different result on virtually identical facts in Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010), but noted that in that case, unlike here, the government had conceded that the petition was not successive); finding that defendant did not meet the standard for a successive § 2255 petition, the Fifth Circuit denied defendant authorization to file a successive petition.

United States v. Rivas-Lopez, 678 F.3d 353 (5th Cir. 2012) Where defendant alleged, in a motion under 28 U.S.C. § 2255 that he went to trial only because of his trial counsel’s overstatement of the Sentencing Guideline range that would apply if he pleaded guilty (defendant alleged that trial counsel told him the range would be from 262 to 327 months, whereas it could have been as little as 87 to 108 months), district court erred in denying defendant’s claim of ineffective assistance of counsel

41 without an evidentiary hearing, in light of the conflicting accounts by defendant and his counsel and the incomplete record on other relevant factors; accordingly, the Fifth Circuit vacated the district court’s order denying § 2255 relief and remanded for further proceedings, including an evidentiary hearing, on defendant’s claim of ineffective assistance of counsel.

United States v. Amer, 681 F.3d 211 (5th Cir. 2012) The rule of Padilla v. Kentucky, 130 S. Ct. 1473 (2010) – namely, that the Sixth Amendment imposes upon attorneys representing non-citizen criminal defendant a constitutional duty to advise the defendants about the potential removal consequences arising from a guilty plea – is a “new rule” that, under the rubric of Teague v. Lane, 489 U.S. 288 (1989), does not apply retroactively to convictions that became final before Padilla was decide; because defendant’s conviction became final on February 24, 2009, before Padilla was decided (on March 31, 2010), he could not avail himself of that decision on collateral review under 28 U.S.C. § 2255. (NOTE: This question is now pending before the United States Supreme Court in Chaidez v. United States, cert. granted, 132 S. Ct. 2101 (Apr. 30, 2012) (No. 11-820).)

United States v. Scruggs, 691 F.3d 660 (5th Cir. 2012). Defendant filed § 2255 challenging his conviction for misprison of a felony, under 18 U.S.C. § 4. The underlying felony involved honest services wire fraud. Defendant argued that, under Skilling v. United States, 130 S. Ct. 2896 (2010), the district court did not have subject matter jurisdiction to accept his guilty plea. The Fifth Circuit rejected this argument, noting that subject matter jurisdiction is determined by looking at the charging instrument, not the facts that were used to prove up the charged offense.

B. Ineffective Assistance of Counsel

Lafler v. Cooper, 132 S. Ct. 1376 (2012). Where defense counsel’s ineffective advice led to a plea offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed; the appropriate remedy for such a constitutional violation will, however, vary depending upon the circumstances of each case; here, defendant made out a meritorious claim of ineffective assistance of counsel; it was conceded that defendant’s trial counsel provided deficient performance in counseling defendant to reject a plea offer and instead to proceed to trial (the attorney reportedly told the defendant that he could not be convicted of assault with intent to murder because he had only shot the victim below the waist); additionally, the defendant showed that but for counsel’s deficient performance, there is a reasonable probability he and the trial court would have accepted the plea offer; this satisfied the test for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984); the Michigan state courts’ conclusion to the contrary was contrary to clearly established Supreme Court law in place at the time defendant’s conviction became final (i.e., Strickland), so defendant was entitled to relief even on federal habeas review; although the federal district court had ordered specific performance as a remedy for this violation, the Supreme Court held that the proper remedy was to require the state to reoffer the plea agreement, at which time the trial court could exercise its discretion regarding acceptance or rejection of the agreement. (Justice Scalia filed a dissenting opinion, in which he was joined in

42 whole by Justice Thomas and in part [all but Part IV] by Chief Justice Roberts. Justice Alito filed a dissenting opinion.)

Missouri v. Frye, 132 S. Ct. 1399 (2012). The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected; as particularly relevant to this case, the Court held that effective assistance of requires defense counsel to convey to the client, in a timely manner, favorable plea offers that are subject to expiration if not accepted by a particular deadline; here, counsel’s failure to inform defendant of the favorable plea offer (plea to a misdemeanor, with an agreed sentence of 90 days in jail) was deficient performance; to show prejudice where a plea offer has lapsed or been rejected because of counsel’s deficient performance, a defendant must who a reasonable probability both that he would have accepted the plea offer but for the deficient performance and that the prosecution would have persisted in, and the trial court would have accepted, the plea agreement; here, the Missouri Court of Appeals correctly determined that defendant had received deficient performance when counsel failed to inform him of the plea offer before its expiration; although it was also likely that defendant would have accepted that offer, rather than pleading guilty on more unfavorable terms (to a felony, for which he received a 3-year prison sentence); however, the Missouri Court of Appeals did not require defendant to show that the plea offer would have been adhered to by the prosecution and accepted by the trial court; because these matters implicated questions of state law, they were better addressed by the state court in the first instance; accordingly, the Court vacated the judgment below and remanded for further proceedings. (Justice Scalia filed a dissenting opinion, in which he was joined by Chief Justice Roberts and Justices Thomas and Alito.)

United States v. King, ___ F.3d ___, 2012 WL 4498500 (5th Cir. Aug. 14, 2012). Held, in context of motion to file successive petition under 28 U.S.C. § 2254, that Supreme Court decisions in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), did not announce new rules of constitutional law but merely applied the Sixth Amendment right to counsel to a specific factual context.

United States v. Juarez, 672 F.3d 381 (5th Cir. 2012) In case charging defendant with illegal reentry after deportation and lying about United States citizenship, defense counsel rendered ineffective assistance of counsel by failing to adequately research and investigate defendant’s derivative- citizenship defense, which would have been a defense to the alienage element of both charges; particularly, defense counsel failed to adequately research and investigate whether defendant derived citizenship via 8 U.S.C. § 1432(a) (1999); based on the legal authority available at the time defense counsel advised defendant on his pleas, a derivative-citizenship defense was plausible; moreover, defendant was prejudiced because, under these circumstances, there is a reasonable probability that defendant would have been dissuaded from pleading guilty to the charges and would instead have elected to go to trial; as a result of defense counsel’s ineffective assistance, defendant’s guilty pleas were not knowingly and voluntarily made; accordingly, the Fifth Circuit reversed the district court’s decision denying collateral relief under 28 U.S.C. § 2255 and remanded for further proceedings.

Salts v. Epps, 676 F.3d 468 (5th Cir. 2012) Where trial attorney, jointly representing a husband and wife charged with embezzlement in Mississippi state court, alerted the trial court to the possibility

43 of a conflict of interest arising from the joint representation, it was error, reversible per se under Holloway v. Arkansas, 435 U.S. 475 (1978), for the trial court to fail to make further inquiry into the potential conflict; the Mississippi courts misapplied Holloway by interpreting it to apply only where there is a showing of an actual conflict; accordingly, the Fifth Circuit affirmed the district court’s grant of federal habeas relief. (Chief Judge Jones filed a dissenting opinion.)

United States v. Rivas-Lopez, 678 F.3d 353 (5th Cir. 2012) Where defendant alleged, in a motion under 28 U.S.C. § 2255 that he went to trial only because of his trial counsel’s overstatement of the Sentencing Guideline range that would apply if he pleaded guilty (defendant alleged that trial counsel told him the range would be from 262 to 327 months, whereas it could have been as little as 87 to 108 months), district court erred in denying defendant’s claim of ineffective assistance of counsel without an evidentiary hearing, in light of the conflicting accounts by defendant and his counsel and the incomplete record on other relevant factors; accordingly, the Fifth Circuit vacated the district court’s order denying § 2255 relief and remanded for further proceedings, including an evidentiary hearing, on defendant’s claim of ineffective assistance of counsel.

United States v. Wines, 691 F.3d 599 (5th Cir. 2012). Defendant, in petition filed under 28 U.S.C. § 2255, failed to show ineffective assistance based on counsel’s advising him not to testify on his own behalf. The two judge majority held that the defendant had not shown prejudice because (1) he would have been cross-examined on his prior drug conviction and (2) his testimony would have been cumulative of his mother’s testimony. The majority noted that “as far as we can determine, no defendant in any court in the United States has been able to prove Strickland prejudice on the basis of his counsel advising him not to testify in his own defense at trial.” Judge Higginbotham dissented, arguing that context matters. Here, the defendant should have been allowed to testify because (1) the government’s case turned on the credibility of a multiple felon testifying under a plea deal and (2) the defendant’s mother had already testified about the defendant’s prior drug conviction.

C. Other

Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. 2012) Where federal prisoner, who was an alien subject to a detainer, challenged the Federal Bureau of Prisons’ regulations excluding him from consideration for participation in drug-treatment programs and release to a halfway house, district court erred in dismissing action for lack of subject-matter jurisdiction; because participation in these programs could decrease defendant’s sentence, defendant’s claims were properly raised under 28 U.S.C. § 2241; furthermore, district court’s alternative ruling that defendant had not properly exhausted administrative remedies was also in error; an attempt to exhaust would have been futile, since he raised constitutional challenges to the regulations that the agency charged with enforcing them clearly would reject; however, on the merits, defendant was not entitled to relief; these programs did not create any liberty interest in early release that could support a due-process claim; nor did defendant show an equal-protection violation, because there was a rational basis for the regulations in question.

44 XII. MISCELLANEOUS

A. Particular Substantive Offenses (and Defenses)

Reynolds v. United States, 132 S. Ct. 975 (2012). Contrary to the holding of the Third Circuit below, the Sex Offender Registration and Notification Act (“SORNA”) does not require pre-Act offender to register before the Attorney General validly specifies that the Act’s registration provisions apply to them; because the Third Circuit should have reached the merits of whether, in fact, the Attorney General had made a valid specification to this effect via the Attorney General’s 2007 Interim Rule, the Court reversed the Third Circuit’s judgment and remanded for consideration of the validity of the Interim Rule. (Justice Scalia filed a dissenting opinion, in which he was joined by Justice Ginsburg.)

United States v. Alvarez, 132 S. Ct. 2537 (2012). The Stolen Valor Act, 18 U.S.C. § 704(b) – which makes it a crime when anyone “falsely represents himself or herself, . . . verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States” – violates the Free Speech Clause of the First Amendment.

(1) Justice Kennedy, in a plurality opinion joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, would hold that the Act works a content-based restriction on speech and that the category of speech restricted (false statements about having received a medal) does not fall within the few narrow categories where content-based restrictions on speech have been permitted; applying the “strict scrutiny” traditionally applied to content-based restrictions on speech, the plurality would hold that the Act did not withstand strict scrutiny.

(2) Justice Breyer filed an opinion concurring in the judgment, in which he was joined by Justice Kagan; because of the low First Amendment value of false factual statements, he would apply only “intermediate scrutiny” to the Act; nevertheless, he would find that the Act as drafted did not withstand even that level of scrutiny.

(3) Justice Alito filed a dissenting opinion, in which he was joined by Justices Scalia and Thomas; he would hold that the right of free speech does not protect false factual statements that (like the ones proscribed here) inflict real harm and serve no legitimate interest; finding the Act sufficiently narrow to cover only these unprotected statements, he would uphold the Act.

Smith v. United States, cert. granted, 132 S. Ct. 2772 (June 18, 2012) (No. 11-8976) (granting cert. to United States v. Moore, 656 F.3d 30 (D.C. Cir. 2011)) Does withdrawing from a conspiracy prior to the statute of limitations period negate an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period – a fundamental due process question that is the subject of a well-developed circuit split? Set for argument Nov. 6, 2012.

45 United States v. Fontenot, 665 F.3d 640 (5th Cir. 2011) District court did not err in dismissing superseding indictment against defendant for failure to state offenses under 18 U.S.C. §§ 1001 and 1014; the gravamen of the offenses was that defendant had made false statements on a loan application to refinance his residence, by failing to include an illegal $100,000 campaign loan (defendant was a Louisiana state senator) under “outstanding debts”; however, defendant’s statements were literally true because, under Louisiana law, the illegal loan was an absolute nullity and consequently was not a debt that ever existed; accordingly, the Fifth Circuit affirmed the district court’s dismissal of the superseding indictment.

United States v. Harris, 666 F.3d 905 (5th Cir. 2012) Fifth Circuit reversed for insufficient evidence the defendants’ convictions for money laundering and attempted money laundering (in violation of 18 U.S.C. § 1956(a)(1)(B)(i)) and conspiracy to commit money laundering (in violation of 18 U.S.C. § 1956(h)); the government failed to prove that the transactions in question involved the proceeds of illegal activity; a transaction to pay for illegal drugs is not money laundering, because the funs are not proceeds of an unlawful activity when the transaction occurs, but become so only after the transaction is completed; mere payment of the purchase price of drugs by whatever means does not constitute money laundering, and here the government showed nothing more.

United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc) Especially under the more deferential “devoid of evidence” standard properly applicable to forfeited sufficiency-of-the-evidence claims, the evidence was sufficient to sustain defendant’s conviction for conspiracy to possess marijuana with intent to distribute; contrary to defendant’s argument, the evidence did not show merely a buyer-seller relationship. (Judge Dennis filed a dissenting opinion, in which he was joined by Judge Wiener.)

United States v. Abrahem, 678 F.3d 370 (5th Cir. 2012) Evidence was sufficient to support defendant’s conviction, under 18 U.S.C. § 1001(a)(2), for making material false statements to Department of Defense security personnel in an attempt to get in to see the suspect in the Fort Hood shooting, who was being held in an Army medical center; defendant argued that his misrepresentations about his identity (he said he was the suspect’s lawyer) were not material, because, under the military protocols in place, the persons to whom he made the statements had no authority to admit him in any event; this, said the Fifth Circuit, misstated the test of materiality; the question was whether the statement could have swayed someone unfamiliar with, or willing to overlook, the protocols to admit the defendant, and in this case that test was met. (Judge Jolly filed a dissenting opinion disagreeing with the majority’s test of materiality and its application in this case.)

United States v. Isais Esparza, 678 F.3d 389 (5th Cir. 2012) The evidence was sufficient to support defendant’s conviction for illegal reentry into the United States notwithstanding his defense that he had derived United States citizenship from his father; a 2010 Texas state nunc pro tunc order that purported to alter the 1994 custody decree in defendant’s parents divorce action, by clarifying that the father was the custodial parent (as necessary for the derivative-citizenship defense to work) did not raise a reasonable doubt about defendant’s citizenship; the trial judge (who was the finder of fact in this case) reasonably determined that the circumstances under which the nunc pro tunc order was

46 obtained were suspect and called into question its correctness. (Judge Elrod filed a dissenting opinion in which she opined that the state court’s nunc pro tunc order should have been presumed valid and accurate, absent the government’s coming forward with proof to the contrary.)

United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) Defendant natural gas traders’ actions were “false . . . reports” about “commodities” within the ambit of the Commodities Exchange Act (“CEA”), 7 U.S.C. § 13(a)(2); furthermore, § 13(a)(2) was not unconstitutionally vague as applied to defendants’ conduct; nor was the statute unconstitutionally overbroad; it covers only knowingly false or misleading or knowingly inaccurate speech, which is not constitutionally protected.

United States v. Kebodeaux, 687 F.3d 232 (5th Cir. 2012) (en banc) The registration provisions of the Sex Offender Registration and Notification Act (“SORNA”), see 42 U.S.C. § 16913, and the criminal penalties for failing to register after intrastate relocation found in 18 U.S.C. § 2250(a)(2)(A), are unconstitutional as applied to former federal sex offenders who had been unconditionally released from federal custody before SORNA’s passage in 2006; the Fifth Circuit found no basis for the exercise of congressional authority over such offenders under the Commerce Clause or otherwise under Article I of the Constitution. (Judge Owen filed a concurring opinion. Judge Dennis filed a dissenting opinion, in which he was joined by Judge King. Judge Haynes filed a dissenting opinion, in which she was joined by Judges King, Davis, Stewart, and Southwick.) Government filed petition for writ of certiorari on Oct. 4, 2012, No. 12-418.

United States v. Olvera, 687 F.3d 645 (5th Cir. 2012) The offense of child enticement under 18 U.S.C. § 2422(b) can be violated solely by communications with an adult that the defendant knows to be an adult; in this case, although defendant communicated only with someone he thought to be the child’s father (it was really an undercover agent), defendant’s actions (asking the “father” to show child sexually explicit photo and videos) amounted to attempted enticement of the child by use of an intermediary; the Fifth Circuit therefore upheld defendant’s conviction for attempted child enticement.

United States v. Davis, 690 F.3d 330 (5th Cir. 2012). Reviewing under the manifest miscarriage of justice standard, evidence was sufficient to prove that defendants had conspired to commit and had committed illegal gambling, as defined by Texas law. The federal statute, 18 U.S.C. § 1955, criminalizes conducting an illegal gambling business, defined as a gambling business that violates the law of the state in which it is conducted. Here, defendants ran three internet cafes. When patrons purchased internet time they received “entries” – these entries were already predetermined, by computer, to be either winners or losers. One of the ways in which patrons could reveal whether they had won or lost was by playing a computer game that looked like a slot machine. The court determined, looking at Texas case law, that, because the internet cafes’s sale of internet time was intended to legitimize an illegal lottery, the evidence was sufficient. The court pointed to the evidence that the patrons did not value the internet time, that the cafes had casino-like atmospheres, and that patrons had to sign a form stating that they were not gambling.

United States v. Teel, 691 F.3d 578 (5th Cir. 2012). In determining that defendant’s arguments were barred by law-of-the-case doctrine and did not come within exception for intervening change of law,

47 Fifth Circuit held that, in Skilling v. United States, 130 S. Ct. 2896 (2010), while the Supreme Court had limited honest services fraud, under 8 U.S.C. § 1346, to bribery and kickbacks it had not limited it to only federal bribery.

B. Insanity/Competency/Civil Commitment

United States v. Flores-Martinez, 677 F.3d 699 (5th Cir. 2012) District court did not abuse its discretion in refusing to commit defendant for an “in-house” competency evaluation because the record did not establish reasonable cause for believing defendant was incompetent to stand trial; rather, the overall tenor of defendant’s outbursts was that he was angry about the fact that his beliefs that he was entitled to United States citizenship based on his father’s military service and that he was being unjustly prosecuted; these beliefs, although legally incorrect, were not irrational.

C. Reversals for Insufficiency of the Evidence or Multiplicity

United States v. Harris, 666 F.3d 905 (5th Cir. 2012) (money laundering and attempted money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h))

United States v. Davis, 690 F.3d 330 (5th Cir. 2012) (government conceded that evidence was insufficient to support defendants’ convictions for money laundering under 18 U.S.C. § 1957)

48