In United States v. Carthen, No. 16-17653 (Oct. 25, 2018) (Martin, William Pryor, Baldock), the Court affirmed the defendants' robbery and firearms convictions and sentences over multiple challenges. First, the Court found sufficient evidence that one of the defendants conspired to commit a robbery and voluntarily participated in the robbery with a firearm. Second, the Court found no plain error in admitting statements by the defendants' co-conspirator under the hearsay exception in 801(d)(2)(E).  The Court ruled that, when determining whether a conspiracy existed and whether the statement was made during the course of it, the court may rely on information provided by the co-conspirator as well as independent external evidence.  The Court found enough evidence of a conspiracy to satisfy the exception. Third, the Court found no abuse of discretion under Rule 608(b) by excluding the testimony of two defense witnesses designed to show that the co-conspirator had lied in other judicial proceedings.  The Court reasoned that the Rule prohibited that evidence because it was designed only to make a general showing that the witness had a dishonest character. Fourth, the Court held that the 924(c) sentencing scheme, resulting in a mandatory 57-term for the defendants here, did not violate [...]

In United States v. Garcia, No. 14-11845 (Oct. 19, 2018) (Marcus, Wilson, Graham (S.D. Ohio)), the Court affirmed the defendant's tax-related convictions. The primary issue was whether reversal was required because the district judge resumed trial without the presence of either the defendant or defense counsel for 3 to 10 minutes, during which time the government introduced inculpatory testimony.  The parties agreed that this was obviously constitutional error, and, although the Court found it troubling, the Court held that the error did not warrant reversal because the defendant could not show prejudice.  Bound by the en banc decision in Roy, the Court determined that this was trial error, rather than structural error, and it therefore could not presume prejudice.  The Court also found that the plain error, rather than the harmless error, standard of review applied, because the defendant had numerous opportunities to contemporaneously object to the error and failed to do so.  And, while the result might have been different had the government bore the burden to show harmlessness beyond a reasonable doubt, the Court concluded that the defendant could not meet her burden show that the plain error affected her substantial rights in light of: the cumulative nature [...]

PUBLIC NOTICE CONCERNING CJA PANEL MEMBERSHIP The United States District Court for the Southern District of Florida is seeking applicants for the SDFL Criminal Justice Act Panel (CJA Panel) for a three-year term beginning October 1, 2018. The CJA Panel is comprised of private attorneys who are authorized to serve as appointed defense counsel pursuant to 18 U.S.C. § 3006A. In accordance with the CJA Plan for the SDFL, attorneys must meet the following minimum qualifications to apply for the CJA Panel: Be a member in good standing of the Bar for the Eleventh Circuit Court of Appeals, the United States District Court for the Southern District of Florida and the Florida Bar; Have at least five years criminal practice experience as an attorney licensed to practice in any state or the District of Columbia, or three years of experience as an Assistant Federal Public Defender or Assistant United States Attorney; For the trial panel, have participated in ten felony trials of which at least three were in federal felony trials. Any applicant who has not tried at least three federal criminal jury trials must audit three pre-trial proceedings including motions hearings, three sentencing hearings and three jury trials in [...]

In United States v. Morales, No. 16-16507 (June 29, 2018) (Ed Carnes, Marcus, Ross), the Court upheld the defendant's felon in possession conviction and sentence. First, the Court upheld the denial of the defendant's motion to suppress a warrantless search of the home based on the consent of a co-occupant.  The Court determined that the consent was voluntary because the two officers did not threaten or intimidate her, she was not restrained, she fully cooperated, and they explained that she had the right to refuse consent.  The Court then rejected the defendant's argument that her consent was invalid because the officers intentionally declined to ask him, a physically present co-occupant, for consent.  The Court emphasized that the defendant did not object, even though he was not far away from the door, and there was no evidence that the officers intentionally removed him from the area so that he could not refuse consent.  And the officers were not required to ask him whether he objected where the co-occupant consented. Second, the Court found that the evidence was sufficient to support the conviction.  The defendant admitted that he found the guns, brought them into the home, and placed them in the bag [...]

In United States v. Knowles, No. 16-16802 (May 15, 2018) (Jordan, Martin, Ginsburg), the Court concluded that the district court erred by excluding lay identification testimony, but it found the error harmless. The district court had admitted under Rule 701 identification testimony from a government witness.  The Court rejected the defendant's argument that the testimony should have been excluded under Rule 403 because the witness was a law enforcement official who participated in the vehicle stop uncovering the incriminating evidence.  The official's familiarity with the defendant -- and thus the basis of his identification testimony -- was based in part on his observations of her during the traffic stop, and so it did not reveal any past or collateral contact by the defendant with the criminal justice system. The Court carefully noted that Knowles only raised a Rule 403 objection and implied the issue would have been a closer call under Rule 701.  Remember to raise both! The Court, however, agreed with the defense that the district court erred by excluding defense identification testimony under Rule 701.  The Court applied the "equal treatment" principle used in the context of expert witnesses to the context of lay witnesses.  The defense witness [...]

To Arun Ravindran and Vanessa Chen for securing a government dismissal in a case involving drug and gun charges. Arun and Vanessa moved to suppress the evidence and the magistrate judge agreed that the evidence should be excluded. Rather than objecting to the judge's report and recommendation, the government dismissed.