Because there was not sufficient evidence presented at trial that the bank's deposits were insured by the FDIC and because the Government's use of an affidavit to present sufficient evidence violated Sandles' right to confront witnesses against him, Sandles' conviction must be reversed. The Government must prove that the deposits of the bank were insured by the FDIC at the time that Sandles robbed the bank. See United States v. Wood, 780 F.2d 555, 556 (6th Cir.1986) (per curiam).^FN2 The Government argues that there were three pieces of evidence presented at trial from which a reasonable jury could find beyond a reasonable doubt that the bank's deposits were insured by the FDIC: (1) York's personal knowledge of FDIC stickers at the bank deposit windows; (2) York's statement that the bank's deposits were FDIC-insured; and (3) Best's affidavit that her search of the FDIC records did not reveal that the bank's insurance had expired. Only York's testimony to having seen the stickers was competent evidence, and it was not, standing alone, sufficient evidence of the bank's insured status. The Government failed to demonstrate that York had personal knowledge that the bank's deposits were FDIC-insured, and the Government's use of an affidavit to establish the FDIC-insured element violated Sandles' constitutional right to confront witnesses against him. ^FN3

FN2. Although the Government sought to prosecute this case only under the theory that the bank's deposits were insured by the FDIC, the Government could have sought to prove that the bank was a member of the Federal Reserve System, or organized or operating under the laws of the United States. 18 U.S.C. § 2113(f) includes within the definition of “bank” “any member bank of the Federal Reserve System, and any bank ··· organized or operating under the laws of the United States.” The Government in its indictment, however, only sought to demonstrate that the bank's deposits were insured by the FDIC. The district court also instructed the jury only as to the FDIC definition of “bank.” Although the Michigan National Bank was likely organized and likely operates under the laws of the United States, the Government did not seek to prove this at trial.

FN3. We consider the issue of insufficient evidence even though Sandles did not object after the close of all of the evidence. Referring to United States v. Price, 134 F.3d 340, 350 (6th Cir.1998), the Government argues that we should review this sufficiency question for “miscarriage of justice” because Sandles did not renew his motion for acquittal after the close of all evidence. On the peculiar facts of this case, however, Sandles sufficiently objected to the Government's failure to prove the bank's insured status. Sandles objected to the lack of evidence on the FDIC-insured element at the close of the Government's case and in a motion after the jury convicted him. The Government never mentioned his failure to object in its responsive motion, and the district court issued a four-page written order denying the motion. Sandles' repeated objections at trial, his motion at the close of the Government's case, and his motion after his conviction gave the district court an adequate opportunity to consider the issue and rule on the merits.

*514
[3] York's personal knowledge of one fact-that the bank holds itself out as insured-is not by itself sufficient to establish that the bank's deposits were insured by the FDIC. York's testimony that she had viewed FDIC stickers at the bank's deposit windows was admissible evidence because York had seen the stickers and thus had personal knowledge of their existence. See Fed.R.Evid. 602. But, although we have previously held that a witness's viewing of the FDIC stickers along with other evidence is sufficient for a jury to find that a bank's deposits are FDIC-insured, we have never held that the presence of FDIC stickers alone is sufficient evidence that the bank's deposits were insured by the FDIC. For instance, in United States v. Babb, 77 Fed.Appx. 761, 768-69 (6th Cir.2003) (per curiam), this court held that testimony from a Michigan National Bank employee that there were signs around the bank indicating that the bank's deposits were FDIC-insured was, among other pieces of evidence, sufficient to find that the bank's deposits were insured by the FDIC. But Babb is distinguishable because there was also evidence in that case from two other employees testifying that the bank's deposits were FDIC-insured and testimony that the word “national” in the bank's title indicated that it was insured.^FN4 See id.; see also United States v. Maner, 611 F.2d 107, 110 (5th Cir.1980) (employees testified that they had viewed certificate of insurance). Simply put, some evidence is not necessarily sufficient evidence-the Government must proffer more than evidence of FDIC stickers to prove that the bank's deposits were insured by the FDIC.

FN4. Even if is true that the word “national” in a bank's name indicates that it is insured, we may not take judicial notice of this fact because whether the bank's deposits are FDIC-insured is an element of the offense for the jury to decide. See United States v. Mentz, 840 F.2d 315, 322 (6th Cir.1988) (stating that a district court cannot take judicial notice of a bank's FDIC status without informing the jury that it can, but does not have to, accept that noticed fact).

[4] Although the Government argues that York's testimony that the bank's deposits were FDIC-insured was an additional piece of evidence that the jury could properly consider, York never established her personal knowledge of that fact. The Government is correct that a witness's unchallenged statement that the bank's deposits are FDIC-insured is sufficient evidence for a jury to find that a bank's deposits are insured by the FDIC. See Wood, 780 F.2d at 557; United States v. Gallop, 838 F.2d 105, 111-12 (4th Cir.1988). But the Government forgets that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. In both Wood and Gallop, the defendants did not argue that the witness lacked personal knowledge, and thus the statements that the bank's deposits were FDIC-insured were admissible. But, here, Sandles repeatedly objected to *515
York's lack of personal knowledge of the bank's insured status, and thus the testimony was admissible only if the Government established that York had personal knowledge that the bank's deposits were FDIC-insured. This the Government did not do.

The Government argues that York had personal knowledge that the bank's deposits were FDIC-insured by testifying that she had seen the 1987 FDIC certificate at the bank, that she knew that the bank had been insured for over twenty-three years, and that she had viewed the stickers at the bank's deposit windows. These arguments are unavailing. First, the district court correctly determined that York had no personal knowledge concerning the meaning of the 1987 insurance certificate. Moreover, the bank's insured status more than twenty years before the robbery does not establish that the bank's deposits were FDIC-insured at the time of Sandles' robbery. See United States v. Shively, 715 F.2d 260, 265 (7th Cir.1983) (“But there is no way in which a certificate of insurance issued in 1969 could be taken to refer to a bank's insured status in 1978 without any other evidence.”). Similarly, York's knowledge that the bank had been insured in the past does not mean that the bank was insured at the time of the robbery. A witness cannot establish personal knowledge of a fact by merely saying that he or she has known that fact for a long time. Such a foundation is circular and does not establish why or how the witness knows the challenged fact. Finally, knowledge of FDIC stickers at the bank does not mean that one has knowledge of the bank's insured status. See United States v. Cooper, 375 F.3d 1041, 1044-45 (10th Cir.2004) (noting that the district court held that a bank employee could not testify that she knew that the bank was insured merely because she had viewed FDIC stickers at the bank). The Government simply did not establish a proper foundation for York's testimony as to the bank's FDIC status.

[5] [6] The Government's final proffered piece of evidence-Best's affidavit-was not competent evidence because, even under plain error review, its use violated Sandles' right to confront witnesses against him. The district court found that it had admitted the affidavit of Valerie Best in a packet of papers as Exhibit 4, of which only the 1987 certificate was actually admitted when it was presented to York during her testimony; the affidavit in the packet was never mentioned until closing arguments. Best declared in her affidavit that her research of FDIC records did not indicate that the bank's insurance policy had been cancelled. We review this claim for plain error because Sandles did not object to the admission of the affidavit on the grounds that the affidavit's use violated his constitutional right to confront witnesses against him. See United States v. Matheny, 450 F.3d 633, 642 (6th Cir.2006). “When reviewing for plain error, this court must decide whether (1) there was an error in the district court, (2) the error was plain, (3) the plain error affected the defendant's substantial rights, and (4) the plain error seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Fraser, 448 F.3d 833, 841 (6th Cir.2006). The admission of Best's affidavit satisfies each of these four criteria.

The use of the affidavit was error because courts do not convict by affidavit. See Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also id. at 53-54, 124 S.Ct. 1354 (“[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant*516
had had a prior opportunity for cross-examination.”); id. at 51, 124 S.Ct. 1354 (“ ‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” (quoting 1 N. Webster, An American Dictionary of the English Language (1828))).^FN5 In its brief, the Government does not challenge this analysis. Instead, the Government argues that there are no Confrontation Clause problems with the admission of the 1987 FDIC certificate, a document distinct from Best's affidavit. See Gov't Br. at 23 (referring to United States v. Bellucci, 995 F.2d 157, 161 (9th Cir.1993)). We, however, are not concerned with the admission of the 1987 certificate. We are concerned with Best's affidavit, an affidavit of a Government employee used to establish a necessary fact in a criminal case for which the Government offers no exception to Crawford. Permitting the Government to rely on the affidavit during closing argument, therefore, was error.

FN5. Although the Supreme Court decided Crawford years after Sandles' trial, he is entitled to rely on Crawford. The Supreme Court has held that a defendant may rely on a case decided by the Supreme Court during the time that his case is pending on direct review if that case announces a new rule. Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). The Supreme Court decided Crawford while Sandles' case was pending on direct appeal, and it announced a new rule by overruling Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See Davis v. Washington, --- U.S. ----, 126 S.Ct. 2266, 2275 n. 4, 165 L.Ed.2d 224 (2006).

The error was also plain because Crawford establishes at the time of this appeal that the affidavit was not admissible as evidence at a criminal trial. This court looks to the time of appeal to determine whether an error is plain. See United States v. Oliver, 397 F.3d 369, 379 (6th Cir.2005). By the time of this appeal, not only has the Supreme Court declared that out-of-court testimonial statements cannot be admitted against a defendant, see Crawford, 541 U.S. at 50-56, 124 S.Ct. 1354, but as far back as 1895, the Supreme Court in Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed. 409 (1895), described the “primary object” of the Confrontation Clause as “prevent [ing] depositions or ex parte affidavits ··· [from] being used against the prisoner in lieu of a personal examination and cross-examination of the witness.” It was plain error to permit the Government to prove an element of a crime by affidavit.

This plain error also affected Sandles' substantial rights because, without the use of this affidavit, there was not sufficient evidence from which the jury could find that the bank's deposits were FDIC-insured. Finally, it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” Fraser, 448 F.3d at 841, to permit the use of an affidavit when it was included in a packet of documents, when it was not mentioned until closing arguments, and when Sandles objected as soon as he realized that the document had been admitted. For these reasons, it was error to permit the use of the affidavit, and thus it was not admissible evidence of the bank's insured status.

As one of our sister circuits has stated, “ ‘We have difficulty comprehending why the Government repeatedly fails to prove this element more carefully since the Government's burden is so simple and straightforward.’ ” United States v. Brown, 616 F.2d 844, 849 (5th Cir.1980) (quoting Maner, 611 F.2d at 112). The Government presented only one piece of competent evidence as to the bank's insured status, and that piece of evidence was insufficient to establish a necessary element of a federal bank-robbery charge. *517
Because the Government failed to present sufficient, competent evidence of the bank's FDIC status, the Government leaves us little choice but to reverse Sandles' conviction.


U.S. v. Sandles  469 F.3d 508, *513 -517 (C.A.6 (Mich.),2006)

Daniel Jasen Thrift appeals his 97-month sentences for using a computer for the coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b); traveling in interstate commerce for the purpose of attempting to engage in sex with a minor, in violation of 18 U.S.C. § 2423(b) and (e); and possessing a firearm as a felon, in violation of 18 U.S.C. § 1922(g)(1) and (2). Specifically, Thrift argues the district court either erred in applying an upward departure to his sentence or that his non-guideline sentence was unreasonable. In addition, Thrift argues his sentence to a life term of supervised release for his conviction of possessing a firearm as a felon exceeds the three-year supervised release maximum for that offense. For the reasons stated below, we conclude the district court correctly calculated the Guidelines range and imposed a reasonable sentence. The district court did, however, err when imposing a life term of supervised release for Thrift's conviction of possessing a firearm as a felon.

On appeal, Sanders contends the government vindictively refused to move for a § 3E1.1(b) departure and that the district court erred when it concluded it could not order the departure absent a government motion. § 3E1.1 provides:

*2
a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level. U.S. Sentencing Guidelines Manual § 3E 1.1(a-b)(2006).

In relevant part, the Commentary to § 3E1.1(b) states:

Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing. U.S. Sentencing Guidelines Manual § 3E1.1(b) & cmt. n. 6 (2006)(citing the PROTECT Act of 2003 § 401(g), Pub.L. No. 108-21, 117 STAT. 671-72).

Despite the government's broad discretion under this provision, district courts have the power to review a prosecutor's refusal to move for a downward departure and to grant a remedy if they find the refusal a) was based on an unconstitutional motive, such as race or religion, or b) lacked a rational relationship to any legitimate government objective. United States v. Wade, 504 U.S. 181, 185-186 (1992); United States v. Abuhouran, 161 F.3d 206, 212 (3d Cir.1998). However, in recognition of the government's prerogative, the scope of a district court's review here is “extremely limited” absent a plea agreement. United States v. Isaac, 141 F.3d 477, 481 (3d Cir.1998).

The government may violate due process if it refuses to move for a departure vindictively. United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir.1993), cert. denied, 510 U.S. 1121 (1994). Sanders carries the burden of proving prosecutorial vindictiveness, by adducing evidence of actual vindictiveness or evidence which generates a presumption of vindictiveness. Paramo, 998 F.2d at 1220 (internal citations omitted).


U.S. v. Sanders  L 3707843, *1 -2 (C.A.3  (C.A.3 (Pa.),2006)

II. Collateral Offset

Mr. Small next argues that the district court erred by failing to reduce the amount of loss caused by his fraudulent activities by the amount of collateral pledged to secure the loans. He contends that the loss amount is below $20 million, which results in an enhancement of 20 levels rather than 22. Aplt. Br. at 16. Both parties agree that the district court correctly interpreted U.S.S.G. § 2B1.1 cmt. n.3(E)(ii), when it held that it “must consider collateral that benefits Flagstar in determining the amount of loss. Simply put, for any collateral value that Flagstar may be entitled to claim, the amount of loss should be reduced by that collateral.” Aplee. Supp.App. at 62. Notwithstanding, the district court made no adjustment for the value of any collateral because it deemed the collateral to be worthless. The district court held that Flagstar's security interest in the mortgage loans, related documents, payments, purchase commitments, and any proceeds thereof were all valueless because the mortgages were obtained by fraud and wholly fictitious. Id. at 63-66. The district court acknowledged that Flagstar claimed a senior security interest in many of the assets purchased by Mr. Small, notwithstanding that many of those assets were then subject to a forfeiture proceeding by the government and claims by others. Id. at 63.

We think the district court's methodology is plainly incorrect-Flagstar and IMPAC have argued all along that they have a security interest in not only the funds provided to Amerifunding conspirators but also Amerifunding's negotiable instruments, notes, mortgage loans, accounts, intangibles, receivables, both then-existing and after-acquired, as well as proceeds therefrom. Aplt.App. at 41-45. They also urged a constructive trust theory. Id. at 45 n.9. Subsequently, it appears that the government settled the multi-million dollar forfeiture action in favor of various creditors of Amerifunding (including Flagstar and IMPAC), retaining only $283,000. Aplt. Br. at Ex. 2 at 2. We do not think that the collateral argument can be dismissed so easily.

Mr. Small is correct that the government had the burden of proving the amount of loss, see United States v. Rockey, 449 F.3d 1099, 1005 (10th Cir.2006), and he is also correct that the loss amount should have been reduced by the value of any collateral. An incorrect application of the guidelines requires a remand unless we can determine that the error did not affect the sentence imposed. Williams v. United States, 503 U.S. 193, 203 (1992). Although Mr. Small's explanation of how the collateral will bring the loss below the threshold of $20,000,000 is certainly lacking, the government bears the burden of showing that the error in disregarding the collateral was harmless-viz., of showing by a preponderance of evidence that substantial rights were not affected. Martinez, 418 F.3d at 1135-36. We note that one Flagstar estimate of the net loss to all the victims was $22,625,000, Aplt.App. at 37, but in light of the importance of quantifying the amount of loss, we cannot say confidently that the error was harmless given the attendant standard or review. On remand, the district court should quantify the loss reduced by any collateral and, if necessary, resentence Mr. Small.

U.S. v. Small (C.A.10,2006)

Campos-Diaz was sentenced in the United States district court for the Northern District of Georgia. He asserts that the absence of a fast-track, or early disposition sentencing program in that district, which would have allowed the district judge to apply a downward departure to his sentence under U.S.S.G. § 5K3.1, violates the Fifth Amendment Equal Protection Clause. Campos-Diaz therefore contends that the participation of some, but not all, federal judicial districts in the fast-track program creates an unconstitutional disparity between defendants sentenced in those districts and defendants sentenced in districts that do not participate in the program.

We made this observation about the fast-track program:

The fast-track departure is available to defendants who agree to the factual basis of the criminal charge and waive the rights to file pretrial motions, to appeal, and to seek collateral relief (except for ineffective assistance of counsel), but only in judicial districts that participate in a[n] early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.

United States v. Castro, 455 F.3d 1249, 1251 (11th Cir.2006) (quotations, citations, and alterations omitted). The Northern District of Georgia does not participate in the fast-track program.^FN1 See id.


II.
We have not determined whether a judicial district's lack of participation in the fast-track program creates a distinction that rises to the level of an equal protection violation.^FN2 We now join the First, Seventh, and Ninth Circuits in concluding that the absence of a fast-track program in the judicial district where a defendant is sentenced does not violate equal protection.^FN3

See United States v. Barragan-Flores, 182 Fed. Appx. 576 (7th Cir.2006)(unpublished) ; United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006), cert. denied sub nom. Acosta-Franco v. United States, 127 S.Ct. 309 (2006); United States v. Melendez-Torres, 420 F.3d 45, 52-53 (1st Cir.2005).

Campos-Diaz asserts that we should apply strict scrutiny analysis to his case because his right to liberty is at stake. However, no binding authority indicates that the distinction between defendants sentenced in fast-track districts and defendants sentenced in other districts involves a suspect classification or infringes on a fundamental right. See Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir.2005) (“Group classification by legislative act will be analyzed under [ ] strict scrutiny if the classification infringes fundamental rights or concerns a suspect class.”), cert. denied, 126 S.Ct. 624 (2005). Therefore, the implementation of the fast-track program in some, but not all, judicial districts, as authorized by the PROTECT Act, is not subject to heightened scrutiny under the Equal Protection Clause.

Instead, we review the constitutionality of disparate access to fast-track programs under the rational basis test. See Melendez-Torres, 420 F.3d at 53 (reviewing the absence of a fast-track program under the rational basis test); Marcial-Santiago, 447 F.3d at 719 (“The fast-track provision of the PROTECT Act applies only to convicted felons, and so we consider whether the provision is rationally related to a legitimate government interest.”). Under the rational basis test, a law does not violate equal protection “so long as [it is] rationally related to a legitimate government interest.” United States v. Ferreira, 275 F.3d 1020, 1025 (11th Cir.2001). The fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources and easing congestion in judicial districts with a high volume of immigration cases. Therefore, we conclude that application of this program in only certain judicial districts does not violate equal protection, and we affirm Campos-Diaz's sentence.

U.S. v. Campos-Diaz (C.A.11,2006)

Finally, Whiting attacks the calculation of his sentence. Whiting asserts that the district court erred in determining that Whiting caused $921,380 in loss. We agree. When imposing a sentence, a district court must first calculate the advisory guideline range and then select a sentence within or outside the range in light of the factors set forth in 18 U.S.C. § 3553(a). United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.2006). In the post- Booker era, this Court continues to review the district court's application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005).

U.S. Sentencing Guidelines Manual § 2B1.1 assigns a base offense level of 6 and then requires, in § 2B1.1(b)(1), that the offense level be increased by the size of applicable “loss.” Application Note 3 defines how “loss” is determined. “Actual loss” is “the reasonably foreseeable pecuniary harm that resulted from the offense .” U.S. Sentencing Guidelines Manual § 2B1.1, Application Note 3(a)(i). Reasonable foreseeable pecuniary harm is “pecuniary harm that the defendant knew, or under the circumstances, reasonably should have known, was a potential result of the offense.” U.S. Sentencing Guidelines Manual § 2B1.1, Application Note 3(a)(iv). Causation includes two distinct principles, cause in fact, commonly known as “but for” causation, and legal causation. Whiting challenges the district court's calculation of “actual loss.”

The jury convicted Whiting of converting $66,117, but the district court based his Sentencing Guidelines range on a loss figure of $921,380.^FN2 The district court reasoned that Whiting's misrepresentations, charged in counts ten and thirteen, caused the total loss of all unpaid medical claims. To determine this loss figure, the district court correctly applied the standard of whether the losses were “reasonably foreseeable pecuniary harm” and acknowledged that Note 3(a) required a finding that the false statements were a cause-in-fact of the loss. The court then conceded that the statement that MBA was a “carrier” “is not really causal of losses relative to the unpaid medical claims” and stated that “there isn't strict causal-and I think the defense focused too much on cause.” Nonetheless, the district court applied the unpaid claims to Whiting's loss figure because the employees had trusted Whiting to provide health care. We find that the district court improperly applied the loss causation standard by finding both no causation and causation.


U.S. v. Whiting  2006 WL 3690672, *9 (C.A.7 (Wis. (C.A.7 (Wis.),2006)

A trial can be closed and not violate the Sixth Amendment's command in limited circumstances. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (quoting Press-Enterprise, 464 U.S. at 510). The district court also must consider reasonable alternatives to closure. Id. at 48. The Sixth Amendment's protection extends to pre-trial hearings. Id. at 47.

The district court closed the courtroom during a pre-trial suppression hearing. Neither Hitt nor Causey objected to this closing. At this hearing, the parties discussed evidentiary motions and Detective Gammill gave testimony relevant to Causey's motion in limine to exclude Hitt's alleged confession, which Causey argued unconstitutionally inculpated him. After this hearing, the government filed a motion to close the courtroom for AV's testimony at trial. Neither defendant opposed this motion. The district court did not hold a hearing but instead entered an order that included a finding that “the victim ‘A.’ is a minor and that closure would protect his interests and well-being.” ^FN6 Attached to this order, which suggests that the district court implicitly adopted it, was the government's motion to close the courtroom, which included information regarding AV's psychological state, including an affidavit in which AV's guardian at the time averred that AV was “having difficulty sleeping,” was “having nightmares,” and was “showing significant signs of post-traumatic stress syndrome,” according to AV's counselor. ^FN7

[12] Both defendants, however, now claim that their right to a public trial was violated both at the suppression hearing and during AV's testimony at trial. The defendants argue that Waller, 467 U.S. at 45, applies and that the prerequisites to courtroom closure contained therein were not satisfied by the district court. They contend that this error was “structural,” in that it affected the fundamental fairness of the trial, see Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (categorizing the denial of a public trial as a “structural” error), and that, accordingly, their convictions should be reversed. The defendants' argument, however, overlooks the fact that, regardless of whether the Waller prerequisites are met, defendants can waive their right to a public trial. That is what happened here.

[13] [14] Where a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial. ^FN8 See Levine v. United States, 362 U.S. 610, 618-19, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960); see also Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) (noting that a defendant can waive the right to a public trial); Lacaze v. United States, 391 F.2d 516, 520-21 (5th Cir.1968) (holding that the court's order that the courtroom be locked during one session of the trial was not reversible error when the defendant did not object to the closure). A defendant's attorney's waiver of the right to a public trial is effective on the defendant. United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir.1949); see also Martineau v. Perrin, 601 F.2d 1196, 1200-01 (1st Cir.1979).

*6
[15] Even before the suppression hearing, Hitt and Causey (and their respective attorneys) had notice, through various pleadings and motions previously filed, that the allegations involved sexual abuse of a minor child and that the government was seeking to place under seal the alleged victim's name as well as other medical evidence. Hitt and Causey and their respective attorneys were, of course, present during both the suppression hearing and the closure of the trial for AV's testimony. At no time during the suppression hearing, after the government filed its motion to close the trial during AV's testimony, during the time between the suppression hearing and trial, at trial, or even in post-trial motions, did Hitt or Causey object to the courtroom closure. The defendants therefore waived their Sixth Amendment right to a public trial. See Levine, 362 U.S. at 618-19.


U.S. v. Hitt  L 3616560, *5 -6 (C.A.5  (C.A.5 (La.),2006)

It is undisputed that the guidelines call for three years of supervised release for Leppa's offense, USSG § 5D 1.2(a)(2), yet the district court imposed four years without prior notice or any explanation for the higher sentence. Leppa and the government quarrel about whether the increased term ought to be construed as a departure or a variance from the guidelines. Our review of the record leads us to conclude, however, that it is neither: the district court's sentence appears to simply reflect a mistake.

At Leppa's hearing on his guilty plea, the district court told Leppa that he was subject to a three- to five-year guidelines term of supervised release. This, of course, was wrong. In its Statement of Reasons accompanying Leppa's sentence, the district court repeated this mistake, again erroneously determining his guidelines range of supervised release to be three to five years. In this document, the district court also affirmed its belief that the sentence it imposed was within the guidelines range. Moreover, at the sentencing hearing, there was no discussion whatsoever concerning increasing Leppa's term of supervised release beyond his guidelines range, by way of either a departure or a variance. Thus, we are of the firm belief that the district court simply misapprehended Leppa's guidelines range of supervised release. This was a plain error, satisfying the first two elements of Olano.

[5] We now turn to whether Leppa was prejudiced by the error, that is, whether it affected Leppa's substantial rights. United States v. Nahia, 437 F.3d 715, 716-17 (8th Cir.2006). To do so, he must show a “reasonable probability” that if not for the error, he would have received a more favorable sentence. Pirani, 406 F.3d at 552. We find he has carried this burden. The sentence imposed was outside of the range recommended by the guidelines, something which may only be realized by way of a departure or a variance. While these two vehicles for “outside the guidelines” sentences differ in some respects, both require some basis for the district court's deviation to appear on the record. See generally USSG § 5K2.0, p.s. & comment.; United States v. Bueno, 443 F.3d 1017, 1023-24 (8th Cir.2006); United States v. Rivera, 439 F.3d 446, 447-48 (8th Cir.2006). In that respect, this record is lacking.

As we have made clear, there is a “range of reasonableness” in which sentencing courts may choose to fashion a just punishment, United States v. Saenz, 428 F.3d 1159, 1165 (8th Cir.2005), and a one-year increase in an offender's term of supervised release may well fall within that range. That, however, is not the question before us. Instead, we must ask whether Leppa has shown a likelihood that he would receive a more lenient sentence if the error was corrected. The error here, as noted above, was the district court's apparent misapprehension of the guidelines range. By all indications, the district court believed it was imposing a guidelines sentence, and, indeed, there is no evidence to support the view that it would deviate from a guidelines sentence in this respect absent the error. Because the correct guidelines sentence of supervised release is three years, Leppa has demonstrated he was prejudiced by the erroneous imposition of a four-year term.

*3
Lastly, we consider whether leaving the error uncorrected will result in a miscarriage of justice by seriously affecting “ ‘the fairness, integrity or public reputation of judicial proceedings.’ ” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Leppa's period of supervision was erroneously increased by a full year. If, during that period, Leppa were to violate the conditions of his supervised release, he would be subject to yet another term of imprisonment and an increased term of supervised release. See generally USSG § 7B1.1-5, p.s. Given this impingement on his liberty, “we have no trouble in concluding that the error would result in a miscarriage of justice if left uncorrected.” United States v. Spigner, 416 F.3d 708, 713 (8th Cir.2005); accord United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (“easily conclud[ing]” that a sentencing error which resulted in the imposition of seventeen additional months of imprisonment seriously affected the fairness of the defendant's sentencing proceedings). We thus exercise our discretion to correct the error.^FN2


U.S. v. Leppa  L 3544342, *2 -3 (C.A.8  (C.A.8 (Minn.),2006)

Murphy says that he could not have waived counsel because he repeatedly insisted that he intended to retain someone as his attorney. But a defendant can waive his right to counsel through conduct as well as words. And insisting that an attorney raise silly, frivolous defenses is not a sign that a defendant is acting in good faith. Urging that a lawyer offer the kind of run-of-the-mill arguments offered by tax protesters is strong evidence of conduct which can be viewed as a waiver of Sixth Amendment rights.


U.S. v. Murphy  2006 WL 3530654, *6 (C.A.7 (Wis. (C.A.7 (Wis.),2006)

Defendant Richard Morris was charged in Michigan state court with three firearm and drug related charges. The investigation and prosecution of his alleged crimes was conducted through Project Safe Neighborhoods, a joint effort between the federal government and Michigan state authorities to address problems related to gun violence. Morris initially pled not guilty to charges brought in state court, at which point they were dropped. His case was then referred to the United States Attorney's office and he was eventually indicted in federal court. He subsequently filed a motion to “remand” to state court, on the basis that he was denied effective assistance of counsel in the state proceedings. After conducting two days of evidentiary hearings, the district court agreed that Morris was denied effective assistance of counsel, and granted his motion. The government now appeals.


I.
On February 25, 2004, Morris was arraigned in state court on charges of possession and delivery of marijuana, felon in possession of a firearm, and unlicensed possession of a concealed firearm, in violation of MICH. COMP. LAWS §§ 333.7401, 750.224(f), and 750.227(b), respectively. He requested and was assigned counsel on February 26, 2004, the date on which communication between state and federal authorities began regarding their cooperative effort to prosecute Morris. On March 3, 2004, he took part in a “pre-preliminary examination” ^FN1 as part of Project Safe Neighborhoods.

Immediately before this examination, Morris met with his attorney for the first time. She advised him of a state plea offer as well as the federal sentencing guideline range as she understood it. The state's offer encompassed the charges of possession with intent to deliver marijuana and unlicensed firearm possession, and included a sentence of one to four years for the marijuana count, plus two consecutive years for the unlicensed firearm possession count. Morris's attorney, who had not practiced in federal court and had no experience interpreting the Federal Sentencing Guidelines, had been given an estimate of his federal guideline range by the state prosecutor, who had himself been advised of the range by an Assistant United States Attorney. This estimate was 62 to 68 months, and defense counsel passed it on in turn to Morris. As it turned out, this estimate was incorrect. Morris was in fact subject to a federal guidelines range of 90 to 97 months if he pled guilty, or 101 to 111 months if he did not.^FN2 Morris's attorney, who had not received complete discovery at the time, was able to speak only briefly with her client in the “bull pen.” The “bull pen” is a cell located behind a courtroom. It is usually crowded with detainees and requires attorneys and clients to shout their communication. Attorneys, court personnel, and officers often walk the corridor where the bull pen is located, further diminishing attorney-client privacy. Morris's attorney was forced to communicate with him through a meshed screen in the presence of other detainees.

*2
Immediately after this meeting, Morris was taken into the pre-preliminary examination, where the prosecution made a plea offer-one to four years for the marijuana charge, plus two consecutive years for the felony firearm charge. The offer required an immediate decision by Morris. The judge informed him that if he declined, he would be referred to federal court to answer charges which could result in a more severe sentence. Morris was not able to discuss his options privately with his attorney. His attorney did not have knowledge of the strength of the case; nor was she given time to investigate or interview witnesses. He rejected the state's offer and was referred to federal court pursuant to Project Safe Neighborhoods, with the understanding that his federal guideline range would be 62 to 68 months.

The government filed an indictment in the district court on March 18, 2004. On September 9, 2004, Morris filed a motion in the district court to remand to state court on the ground that his state court trial attorney's failure to properly advise him of the applicable federal sentencing range, in conjunction with the system of attorney consultation, denied him his Sixth Amendment right to counsel. After two days of evidentiary hearings, the district court granted Morris's motion. It reasoned that Project Safe Neighborhoods was a joint effort between state and federal prosecutors, and it thus had “power to remedy any constitutional errors” in the state proceedings. D. Ct. Op. at 6. The district court also found that the pre-preliminary examination was a critical stage of the proceedings at which point the right to counsel attached under Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Finally, the district court concluded that Morris suffered a constructive absence of counsel and was denied effective assistance of counsel, and that the appropriate remedy was to dismiss the federal charges and reinstate the state plea offer.


II.
[1] In reviewing the dismissal of an indictment, we review de novo the district court's legal conclusions, and “the factual findings supporting its ruling for clear error.” United States v. O'Dell, 154 F.3d 358, 360 (6th Cir.1998).


A. The District Court's Ability to Remedy the Constitutional Violation in State Court
[2] [3] [4] At the outset, we address the government's claim that the district court had no authority to address perceived constitutional errors in the state proceedings by dismissing the federal indictment and “remanding” to state court. We agree with the government that the district court lacked jurisdiction to remand the case to state court. The district court does have authority to enforce a plea agreement, however. United States v. Lukse, 286 F.3d 906, 910 (6th Cir.2002). We have held that plea agreements are contractual in nature and interpreted using traditional principles of contract law, and that a district court can utilize specific performance to remedy any breach of the agreement. Id. Of course in this case an agreement was never reached on the state court plea offer. Even so, under Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), a criminal defendant is entitled to competent advice of counsel in plea negotiations. Further, where the state extends a plea offer but simultaneously denies a defendant the effective assistance of counsel at the plea stage, a necessary part of the district court's remedial authority include its ability to put the defendant back in the position he would have been but for the ineffective assistance of counsel. Tennessee v. Turner, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), reinstated, 726 F.Supp. 1113 (M.D.Tenn.1989), af'd, 940 F.2d 1000 (6th Cir.1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992) (“[T]he only way to neutralize the constitutional deprivation suffered by Turner would seem to be to provide Turner with an opportunity to consider the State's two-year plea offer with the effective assistance of counsel.”); United States v. Allen, 53 Fed. App'x 367, 373-74 (6th Cir.2005) (“[I]f it were shown that defense counsel provided ineffective assistance, the remedy is to compel the government to reinstate the prior plea offer, restoring Mr. Allen to where he was before ineffective assistance was rendered .”).

*3
This case is different from Turner or Allen, in that Allen involved a plea offer made in a federal prosecution that was under direct review, and Turner was a habeas corpus appeal, where the federal courts have explicit statutory authority to remedy constitutional violations in state court prosecutions. Here, instead, we are faced with a federal prosecution, before us on direct review, where the defendant seeks to reinstate a plea offer made in state court. The rationale of Turner and Allen applies with equal force here, however, because there is significant evidence in the record that the United States Attorney's office was involved with the state court plea negotiations pursuant to Project Safe Neighborhoods. Most importantly, the United States Attorney's Office was involved in deciding whether a plea offer would be made available to Morris in state court, and the state court plea offer included an agreement that Morris would not be prosecuted in federal court, even though the state and federal governments could have chosen to pursue separate prosecutions. Because the United States Attorney's Office made itself a party to the state court plea offer, the district court was justified in enforcing the plea offer against it based on traditional principles of contract law. Although there is no basis for the purported remand to state court and the related reinstatement of the state plea offer, dismissal of the federal indictment was within the district court's authority ^FN3 to put Morris back in the position he would have been in but for the denial of his right to counsel in light of the federal prosecutor's entanglement with the state plea process.


B. Denial of Sixth Amendment Right to Counsel
The government also challenges the district court's conclusion that Morris was denied the effective assistance of counsel in violation of the Sixth Amendment. The district court's ruling was based both on the rule of constructive absence of counsel from United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and its determination that Morris had a viable claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hill. We agree with both of these conclusions.

We have described the standard for constructive denial of counsel under Cronic as follows:

If a claim is governed by Cronic, ··· the defendant need not demonstrate any prejudice resulting from the lack of effective counsel; in some cases, the Sixth Amendment violations are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. Three types of cases warrant Cronic's presumption-of-prejudice analysis. The first is the complete denial of counsel, in which “the accused is denied the presence of counsel at ‘a critical stage.’ “ The second is when counsel “entirely fails to subject the prosecution's case to meaningful adversarial testing.” The third is when counsel is placed in circumstances in which competent counsel very likely could not render assistance.

*4
Mitchell v. Mason, 325 F.3d 732, 741-742 (6th Cir.2003).

[5] Based on this standard, the district court found that Wayne County's practice of assigning counsel shortly before the pre-preliminary examination amounts to a “state impediment to effective assistance of counsel.” D. Ct. Op. at 13. The district court based this determination on the extremely short time period that the system allows appointed counsel to prepare for the hearing, the lack of privacy afforded in the bull pen, which prohibits counsel from having a confidential, privileged conversation with the client before the hearing, and the requirement that a defendant make an immediate decision regarding the plea offer.^FN4 As the district court pointed out, ABA Standards for Criminal Justice provide that a thorough discussion with the client is necessary at the outset of representation, which is entirely precluded by the lack of time and confidentiality under the Wayne County system. See 1 ABA Standard for Criminal Justice 1(a) & (b). Further, defense counsel is given very little time to review any discovery material before advising her client regarding a plea. Although the district court did not explicitly state which type of “ Cronic failure” it found this situation analogous to, given its factual findings, we have no trouble agreeing that in this case “counsel was placed in circumstances in which competent counsel very likely could not render assistance.” Mitchell, 325 F.3d at 742. As a result, Morris is presumed to have been prejudiced by the situation in which his attorney was placed, and has a valid claim of constructive denial of counsel.^FN5

The government contends that “[t]he fact that his attorney actually gave him legal advice is simply inconsistent with a conclusion that counsel was not acting as a lawyer during the defendant's consideration of the state plea offer.” This argument ignores the rule from Cronic that constructive denial of counsel can occur under circumstances where even competent counsel could not render assistance. The fact that Morris's counsel gave him some advice does not preclude a finding of constructive denial of counsel under this standard. Rather, the circumstances, such as the lack of time for adequate preparation and the lack of privacy for attorney-client consultation, would have precluded any lawyer from providing effective advice. This is demonstrated here in part by the fact that Morris's counsel was precluded from taking basic preparatory steps such as looking at his prior record in conjunction with the federal sentencing guidelines so as to make an accurate prediction of his guideline range, and instead had to rely on the erroneous estimate provided by an Assistant United States Attorney of 62-68 months, where the actual guideline range was either 90-97 months or 100-111 months, or roughly 50 percent higher than the estimate provided. The inability of Morris's counsel to accurately estimate his federal sentencing guideline range and the resulting incorrect estimate factored into Morris's calculus in contemplating the state's plea offer.

*5
[6] We also agree with the district court that Morris was denied the effective assistance of counsel under Strickland and Hill. Strickland requires two elements to establish an ineffective assistance of counsel claim: (1) counsel's performance must have fallen below an objective standard of reasonableness, and (2) there must be a reasonable probability that but for the deficient performance, the outcome of the proceedings would have been different. 466 U.S. at 694. Hill applied this test in the context of plea offers, requiring that a defense attorney inform her client of plea offers and the potential penalties, and held that to establish an ineffective assistance of counsel claim, a defendant must show (1) that he did not receive such advice, and (2) “a reasonable probability that he would have pleaded guilty had he received proper advice.” Griffin v. United States, 330 F.3d 733, 738 (6th Cir.2003).

This Court has given special weight to significant disparities between penalties offered in a plea and penalties of a potential sentence in determining whether a defendant suffered prejudice by not accepting a plea offer. Id. at 737 (“[A] substantial disparity between the penalty offered by the prosecution and the punishment called for by the indictment is sufficient to establish a reasonable probability that a properly informed and advised defendant would have accepted the prosecution's offer.”) (quoting Dedvukovic v. Martin, 36 Fed. App'x 795, 798 (6th Cir.2002)). The district court followed this approach here, reasoning that Morris stood to be sentenced to 101 to 111 months if he did not plead guilty and was convicted in federal court, which was almost double the 60 to 68 months estimated when the state made its initial plea offer. Because Morris's attorney was unfamiliar with the Federal Sentencing Guidelines and was forced to rely on the erroneous estimate provided by the prosecutor, her advice to Morris “fell below an objective standard of reasonableness.” Because Morris, in turn, relied on the erroneous information, he suffered prejudice and his “ability to make an intelligent decision regarding a plea offer [was] severely undermined.” Id. (citing United States v. Day, 969 F.2d 39, 43 (3d Cir.1992)).

[7] The government contends that it is relevant for Morris's Strickland claim that he maintained his innocence in discussions with his attorney pursuant to the state-court proceedings.^FN6 As the district court found, factoring in Morris's assertion of his innocence would inappropriately punish him for exercising his Fifth Amendment right against-self incrimination. Considering that the lack of privacy afforded Morris and his counsel prevented him from having a confidential consultation, his assertion of his innocence is even more irrelevant, as it was not even made in a confidential or privileged conversation. Further, viewing Morris's assertion of his innocence as a relevant consideration would be at odds with this Court's precedent, which clearly establishes that it “does not make sense to say that a defendant's protestations of innocence belie his later claim that he would have accepted a guilty plea.” Griffin, 330 F.3d at 738.


III.
*6
For the foregoing reasons, we affirm the district court's conclusion that Morris was denied the effective assistance of counsel under both Cronic and Hill. Because the district court lacks authority to remand the case to state court, we reverse that portion of its order, but conclude that it does have the authority to dismiss the federal indictment in order to remedy the constitutional violation. The case is remanded to the district court for further proceedings consistent with this opinion.

FN* The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by designation.

FN1. The pre-preliminary examination procedure was established to reduce jail overcrowding by expediting cases via acceptance of plea offers.

FN2. It is unclear from the record whether the erroneous 62 to 68 month range was based on Morris pleading guilty in federal court or going to trial, but because it was stated as a condition of him being generally unwilling to plead guilty, presumably it was the estimate of the sentence he would have faced if found guilty at trial.

FN3. By way of analogy, we note that dismissal of an indictment is part of a district court's authority to remedy other constitutional violations, such as in cases of prosecutorial misconduct. See United States v. Adamo, 742 F.2d 927, 942 (6th Cir.1984). Dismissal of the indictment here goes no further than the district court's remedial authority in that context.

FN4. The district court also expressed its skepticism with the fee system for appointed counsel, by which they are paid $40 for appearing at the pre-preliminary hearing when no plea is entered, and even if they request a continuance are paid no additional fee beyond the $40, while if their client accepts the plea, they receive “a minimum of $500 to $700.” D. Ct. Op. at 12. This fee structure clearly provides counsel an incentive to encourage the defendant to accept the state's plea offer immediately, and a disincentive to seek more time to investigate and seriously weigh the merits of a defendant's case. Although the district court stated that “Project Safe Neighborhoods, on an institutional level, is a state barrier to counsel for indigent defendants,” D. Ct. Op. at 13, (emphasis in original) and the district court's troubling observations as to the incentives created by the fee structure find support in the record, it appears to have based its ultimate determination on the time constraints and lack of privacy, rather than the fee structure. Our review thus focuses primarily on these factors, even though we are similarly concerned by the incentives created by the fee structure.

FN5. This is not to say that the government is somehow prohibited from making “take it or leave it” plea offers, but merely that by making such an offer, they cannot thereby avoid the requirement of Hill that a defendant be provided effective assistance of counsel at the plea-bargaining stage of a criminal proceeding.

FN6. The government raised this issue with regard to the constructive denial of counsel claim as well. Because this argument only goes to the prejudice prong of Hill-i.e., whether the defendant would have pled differently without the erroneous advice-and because prejudice is presumed in a constructive denial of counsel claim under Cronic, this point is not relevant to the constructive-denial-of-counsel claim.

U.S. v. Morris  L 3511951, *1 -6 (C.A.6  (C.A.6 (Mich.),2006)

Pedro Martinez-Martinez pled guilty to illegal reentry into the United States after being deported following a conviction for a felony and was sentenced to forty-six months in federal prison. This case presents the question of whether, in computing Martinez-Martinez's prison sentence, the district court erred in treating Martinez-Martinez's prior state-court conviction in Arizona for discharging a firearm at a residential structure as a “crime of violence” under United States Sentencing Guidelines (“USSG”) section 2L1.2(b)(1)(A)(ii). For the reasons set forth below, we find that the district court did so err.


U.S. v. Martinez-Martinez  468 F.3d 604, *605 (C.A.9 (Ariz.),2006)

Taxpayers brought action against Internal Revenue Service (IRS) alleging that special agent had made illegal disclosures of taxpayer return information. The United States District Court for the Western District of Missouri, Scott O. Wright, Senior Judge, 2005 WL 1950122, entered judgment in favor of taxpayers. Court of Appeals held:

(1) name of taxpayer under investigation was “return information” prohibited from disclosure;

(2) disclosure of taxpayer's name by special agent of Internal Revenue Service (IRS) was not in “good faith”;

(3) fact that taxpayer was under grand jury investigation constituted “return information” prohibited from disclosure;

(4) disclosure by agent of fact that taxpayer was under grand jury investigation was not in “good faith”;

(5) one unauthorized disclosure of return information to two people counted as two separate disclosures;

(6) unauthorized disclosure of more than one piece of return information in single interview constituted more than one single act of disclosure;

(7) taxpayer was entitled to award of actual damages; and

(8) taxpayers “substantially prevailed,” for purpose of award of attorney fees.




Snider v. U.S.  468 F.3d 500 (C.A.8 (Mo.),2006)

At trial appellant took the stand and testified that he had been depressed, did not know what he was doing, and thought someone was following him trying to kill him. He described the events at the home of the victim in a manner generally consistent with their testimony, claiming that he had asked the woman, after he went in the house, to “help me.” The state's first question on cross-examination was, “We've never spoken before, have we?”. To this appellant answered in the negative. Appellant then objected that the state had commented on his right to remain silent and moved for a mistrial. The court denied the motion for mistrial but instructed the jury as follows:

All right, ladies and gentlemen, as you know, through the voir dire, the defendant has the right to remain silent, and he has, so, and probably upon advice of his attorney he did not and would not talk to the prosecutor. That's generally something that doesn't happen.

So I don't want you to think badly of Mr. Munoz-Perez because it's a very very rare day that a defendant charged with a crime actually talks to the prosecutor during the pendency of the litigation.

On closing argument, the state commented:

Remember I asked him on the stand, I said, have you ever spoken to me before, have we ever talked? Well, that was because that's the first time anybody has ever heard insanity. That I was crazy.

Appellant then objected again that this was a comment on his right to remain silent, but did not move for a mistrial.

Appellant argues correctly that “the Due Process Clause of the Fourteenth Amendment prohibits the use by the prosecution of a criminal defendant's post-arrest and post- Miranda silence for impeachment purposes.” Downs v. Moore, 801 So.2d 906, 911 (Fla.2001) (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)). Nor may post- Miranda silence be used as evidence of sanity. Garron v. State, 528 So.2d 353, 355 (Fla.1988) (citing Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)). The major issue in this case was whether appellant was sane at the time he committed the crimes, and the victims testified that he appeared insane. The improper comments directly undercut that defense, and the trial court's instruction made appellant's choice to follow his attorney's advice sound rational and sane rather than insane. We accordingly reverse for a new trial.


Munoz-Perez v. State  2006 WL 3498457, *1  (Fla.App. 4 Dist.,2006)

This court has consistently held that if sufficient time in the probationary period remains for a probationer to complete a drug treatment program, a trial court may not revoke probation for failure to complete the program when the conditions of probation or community control did not specify that the program be completed within a certain time frame or within a certain number of attempts. See, e.g., Yates v. State, 909 So.2d 974 (Fla. 2d DCA 2005); Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004). Furthermore, the record in this case does not reflect that the trial court ever imposed the unnumbered special condition that the State alleged required Mr. Anderson not only to complete a program but also to “comply with all [the] rules and regulations of the program and ··· participate” in the assigned activities. Therefore, we find that the trial court abused its discretion in revoking Mr. Anderson's probation based on a violation of the nonexistent special condition. Accordingly, we reverse the order revoking Mr. Anderson's community control and imposing a prison sentence, and we remand for further proceedings.


Anderson v. State  2006 WL 3498339, *2  (Fla.App. 2 Dist.,2006)

The trial court gave the jury an instruction on the justifiable use of force. Unfortunately, it was the standard instruction, which is a “circular” instruction that incorrectly informs the jury that the use of force cannot be justified if it occurs while the defendant is committing the charged offense. We have repeatedly criticized this instruction and held it to be fundamental error.^FN1 See Smith, 933 So.2d 1275; Velazquez, 884 So.2d 377; Baker, 877 So.2d 856; Zuniga, 869 So.2d 1239.


Ortiz v. State  2006 WL 3498329, *1  (Fla.App. 2 Dist.,2006)

At trial, the evidence showed that the victim and her husband owned a Dollar Store, which Cole had patronized on several occasions. On July 8, 2003, the victim was working in the store when Cole came in to buy some candy. Cole approached the cash register and put money on the counter. When the victim opened the cash register to make change, Cole jumped over the counter and grabbed her by the neck. After a brief struggle, Cole pulled out a handgun. While holding the gun, he took money from the cash register, the victim's purse, which had been behind the counter, and a DVD player. He also forced the victim to open a file cabinet that was behind the counter, apparently thinking it might contain additional cash. After finding no money in the file cabinet, Cole pointed the gun at the victim and told her to “get in the bathroom and to stay there.”

The victim walked approximately ten feet to the bathroom and closed the door. Cole did not lock the victim in the bathroom and did not block the door. Two to three minutes later, the victim heard a chime that indicated the front door had been opened. At that point, she opened the bathroom door and found that Cole was gone. She then immediately called the police.

[1] At the close of the State's case, Cole moved for a judgment of acquittal on the kidnapping count, arguing the State had failed to prove a prima facie case of kidnapping because the distance from the cash register to the counter was short and the victim was not locked in the bathroom. The trial court denied the motion. After the jury convicted Cole on the kidnapping charge, Cole filed a motion for new trial arguing that the evidence on that charge was legally insufficient because “the victim was ordered into the bathroom only a few feet away, and was not confined by [Cole].” The trial court denied that motion as well. Cole now raises the same issue in this appeal.

Section 787.01(1)(a), Florida Statutes (2003), defines the term “kidnapping” as:

forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

* * * *

(2) Commit or facilitate commission of any felony.

While this statutory definition appears straightforward, the supreme court has recognized that “a literal interpretation of subsection 787.01(1)(a)2 would result in a kidnapping conviction for ‘any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.’ “ Berry v. State, 668 So.2d 967, 969 (Fla.1996) (quoting Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982)). Thus, to limit the reach of the kidnapping statute, the supreme court adopted a three-part test in Faison v. State, 426 So.2d 963 (Fla.1983). Under the Faison test,

*2
[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:

(a) Must not be slight, inconsequential and merely incidental to the other crime;

(b) Must not be of the kind inherent in the nature of the other crime; and

(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison, 426 So.2d at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (Kan.1976)).

In applying the elements of the Faison test, Florida courts have repeatedly held that simply moving a robbery victim at gunpoint from one room to another, even if a door is closed and the victim is ordered not to come out, is insufficient as a matter of law to sustain a conviction for kidnapping. See, e.g., Berry, 668 So.2d at 969; Goff v. State, 616 So.2d 551, 552 (Fla. 2d DCA 1993); Frederick v. State, 931 So.2d 967, 969-70 (Fla. 3d DCA 2006); Elozar v. State, 825 So.2d 490, 491 (Fla. 5th DCA 2002). In reaching this conclusion, the courts have determined that such movement is likely to be involved in any robbery, and there can be no kidnapping when “the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Berry, 668 So.2d at 969.

Thus, for example, in Friend v. State, 385 So.2d

Cole v. State  L 3498318, *1 -2  (Fla.App. 2 Dist.,2006)

Despite the undisputed allegations and testimony that the road was closed to the public, the trial court relied on section 633.021(12), Florida Statutes (2005), and found that the area was a highway that was temporarily closed for construction. This was error because section 633.021(12) does not apply. The term “highway” in section 322.341 is specifically defined in section 322.01(38). Under this definition, the trial court should have granted Galston's motion to dismiss because the State failed to specifically deny his allegation that the area was closed to the public or allege additional facts showing that the area was open to the public. Kalogeropolous.

The definition of the term “highway” in section 633.021(12) is significantly different from the one found in section 322.01(38). While both refer to ways and places for “use of the public” or “public use,” section 633.021(12) broadens the application of the term to such ways and places even if they are “temporarily closed for construction, reconstruction, maintenance or repair.” Section 633.021(12) is in the insurance code, not the criminal code. In Abreau v. Lloyd's, London, 877 So.2d 834 (Fla. 3d DCA 2004), the Third District Court noted the “broad scope” of this definition, applying it to construe the ambiguous policy term “open highway” liberally in favor of coverage. Id. at 835.

The definition in section 633.021(12) does not apply in the instant case because the Legislature expressly limited its use to the term “highway” “as used in this chapter,” meaning Chapter 633. § 633.021, Fla. Stat. (2004) (emphasis added). In similar fashion, the Legislature expressly directed that the definition of “highway” found in section 322.01(38) shall be used to define the term “highway” as used in section 322.341. Thus, the Legislature expressly prohibited the use of the definition in section 633.021(12) to define the term “highway” in section 322.341.

Even if the definition in section 322.01(38) was ambiguous or incomplete, the rule of lenity precludes the trial court's application of the section 633.021(12) definition. Any ambiguity in a criminal statute must be construed in favor of the defendant. § 775.021(1), Fla. Stat. (2006).

[4] In essence, the trial court added language from section 633.021(12) to the definition in section 322.01(38). This additional language broadened the definition of “highway” to favor the State and prejudice the defendant. Such action violated the expressly stated directives of the Legislature regarding the use of such definitions and violated the rule of lenity. Accordingly, the trial court should have granted Galston's motion for judgment of acquittal. The evidence at trial was undisputed that the area in which Galston was driving was closed to the public.^FN2


Galston v. State  2006 WL 3523743, *3  (Fla.App. 5 Dist.,2006)

Carlos Molina contends that after he was found incompetent to proceed with his trial, he was subsequently tried and convicted by a jury without a hearing to determine whether his competence had been restored and without a finding by the trial court to that effect. Molina claims that this constitutes fundamental error that requires reversal of his conviction and sentence. We agree.

Defendant was convicted of aggravated assault with a firearm, simple assault, aggravated stalking, battery, and resisting without violence. Without discussion, we affirm the convictions for aggravated assault with a firearm, simple assault, battery and resisting arrest without violence. As to the aggravated stalking charge, we reverse.

[1] Section 784.048, Florida Statutes (2003), defines aggravated stalking as conduct by one who “willfully, maliciously, and repeatedly follows, harasses ^FN1 ··· and makes a credible threat ^FN2 with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person's child, sibling, spouse, parent, or dependent ···” The statute's purpose is to criminalize conduct that falls short of assault or battery. Curry v. State, 811 So.2d 736, 741 (Fla. 4th DCA 2002); Huch v. Marrs, 858 So.2d 1202, 1204 (Fla. 3rd DCA 2003). As we made clear in Curry:

“The stalking statute was also designed to protect women from being harassed by ex-husbands or former boyfriends, by ensuring that victims did not have to be injured or threatened with death before stopping a stalker's harassment.”

Curry, 811 So.2d at 741. In a footnote, the Third District noted that other states have defined stalking as “unconsented contact” including various forms. Huch, 858 So.2d at 1203 n. 1.

[2] Defendant argues that the State's evidence does not meet the statutory definition for conviction under the law, and thus his motion for judgment of acquittal on that count should have been granted. At trial when defendant moved for judgment on the aggravated stalking count, the State argued that the charge was supported by the evidence as follows:

“[The victim] testified that she received one [threat] directly over the phone on the 18th while she was out shopping, that she received two that were left as voicemails on her cell phone, or maybe it was three ··· [and] in person on the evening of the 18th and again on the 19th····” ^FN3

The State also argued that those threats included fear that defendant would kill her because he made them on “some occasions with a gun in his hand, on another occasion with a knife in his hand, and other instances with no weapon currently in his possession .”

[3] The State's reliance on armed threats is misplaced because they cannot constitute stalking under section 784.048. If the purpose of the statute was to criminalize conduct falling short of assault and battery Curry, 811 So.2d at 741, it follows that actual assaults and batteries are not within the ambit of this statute. This is logical because assaults and batteries are condemned by other statutes. Again, referring to the Third District, “[s]talking is a series of actions that, when taken individually, may be perfectly legal.” Huch, 858 So.2d at 1203.

*2
Because the victim and defendant continued to live together at the time of the alleged stalking, he argues that stalking is impossible when the parties are cohabiting and neither has yet renounced the relationship or tried to end it. It is not necessary for us to pronounce a categorical holding that stalking is not legally possible while parties cohabit unestranged. It is enough to hold that the facts presented in this case do not amount to stalking, aggravated or otherwise. As the Third District did, we perceive that the essence of the stalking offense lies in nonconsensual contact of a harassing or intimidating nature. Because the conduct complained of in this case was the foundation for the conviction on the assault, battery and related counts, we agree that it lies outside the ken of the acts prohibited by the stalking statute.

For these reasons, we reverse the separate conviction for aggravated stalking.

St. Fort v. State  L 3613775, *1 -2  (Fla.App. 4 Dist.,2006)

Appellant Clifford Shelton appeals the trial court's summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Shelton claimed entitlement to credit for time served in jail prior to his date of conviction and sentencing and for time served after sentencing but before transport to prison. Shelton is not entitled to seek credit in the trial court for post-sentencing time served, as that is properly raised with the Department of Corrections. See Schuettler v. State, 931 So.2d 1044 (Fla. 4th DCA 2006); Milne v. State, 807 So.2d 725 (Fla. 4th DCA 2002). Thus, the trial court did not err in summarily denying that portion of his motion asking for post-sentencing credit.

[2] However, it did err insofar as it also summarily denied his claim for pre-sentencing time served from the date of his arrest in June 1989 to the date of his conviction and sentencing on March 21, 1990. Therefore, we reverse and remand for the trial court to consider the latter claim for jail credit on its merits.


Shelton v. State  2006 WL 3498417, *1  (Fla.App. 4 Dist.,2006)

Appellant Robert Criswell appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. Criswell alleged that the trial court failed to direct the Department of Corrections (DOC) to calculate time he previously served in prison when sentencing him for violation of probation.

On the sentencing documents, the court awarded Criswell 140 days of jail credit for time served, but did not check off the box beside the paragraph for awards of credit so as to direct the DOC to compute and apply credit for prison time served pursuant to section 921.0017, Florida Statutes. Further, the trial judge's comments at sentencing revealed that he did not intend to direct the DOC to calculate credit for time Criswell previously spent in prison.

The trial court erred in denying the motion based on a response by the State that the DOC actually had applied the credit for time served in prison. The release date noted by the State would not reflect that credit. We find the motion legally sufficient and the error clear on the face of the record. See Johnson v. State, 881 So.2d 88 (Fla. 5th DCA 2004). The order denying relief is therefore reversed and the case remanded to the trial court for correction of Criswell's sentence.

Reversed and Remanded.


Criswell v. State  2006 WL 3498437, *1  (Fla.App. 4 Dist.,2006)