4DCA: Affirms 31-Year Sentence for Juvenile Convicted of Sexual Battery

Affirming conviction and sentence for four counts of sexual battery and two counts of lewd or lascivious molestation of a minor by a person under the age of eighteen, the Fourth District held:

RULE OF SEQUESTRATION: The trial court did not abuse its discretion by refusing to allow his mother to sit through the pretrial suppression hearing and trial after the state invoked the rule of sequestration, because the state had listed the mother in discovery as a “Class C” witness who was not expected to be called and the fact that this was a familial crime.

MOTION TO SUPPRESS: the court erred in denying a motion to suppress his statements to a detective, which were given without the warnings required of Miranda v. Arizona, 384 U.S. 436 (1966). The court did not err, however, in finding that appellant was not in custody and thus Miranda warnings were not compelled.

NONEXISTENT CRIME: The court rejected the claim that he was convicted of a nonexistent crime, as contact between the tongue and a sexual organ constitutes sexual battery.

JUVENILE SENTENCING: The 31-year sentence followed by 15-years of probation not unconstituional but same question certified as in Davis v. State, 199 So. 3d 546 (Fla. 4th DCA 2016): DO THE SENTENCE REVIEW PROVISIONS ENACTED IN CHAPTER 2014–220, LAWS OF FLORIDA, APPLY TO ALL JUVENILE OFFENDERS WHOSE SENTENCES EXCEED THE STATUTORY THRESHOLDS, EVEN THOSE CONVICTED OF NON–HOMICIDE OFFENSES COMMITTED PRIOR TO JULY 1, 2014?

Tillman v. State, 4D13-2516 (Fla. 4th DCA Aug. 23, 2017)

https://edca.4dca.org/DCADocs/2013/2516/132516_DC05_08232017_084724_i.pdf

Broward Co.

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

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CA11: Terrorist Receives 7-Years LESS in Sentencing than Juvenile Convicted of Robbery

[Blogger’s Note: This opinion was released on the same day that the Eleventh Circuit affirmed a sentence of 685-months for a juvenile convicted of robbery offenses. In contrast, this convicted terrorist received a total sentence of 600 months…7 years
less than the juvenile.]

Affirming convictions for attempting to carry out a terrorist plot and possessing a firearm not registered to him, the Eleventh Circuit wrote:

DISCOVERY: Tthe district court did not err in denying the defendant access to certain classified FISA materials governing his surveillance because, after an in camera review of the materials, "all of the FISA statutory requirements are satisfied, that the FISA-derived evidence in this case was legally acquired, and that the FISA surveillance and searches were made in conformity with the FISA Court’s order of authorization and approval. The FISA materials are very clear and well-organized, and disclosing them to Osmakac is not “necessary” to assess the legality of the searches or surveillance."

IMPROPER COMMENT BY PROSECUTOR: Although the prosecutor improperly told the jury it could not consider a lack of evidence in deliberations, the district court sufficiently remedied the error by providing a curative instruction.

SENTENCING MANIPULATION: Even though the government introduced the defendant to weapons of mass destruction, there was no sentence factor manipulation by the government because the defendant added his own element to the plot (using a suicide belt and a car bomb).

United States v. Osmakac, 14015295 (11th Cir. Aug. 18, 2017)

http://media.ca11.uscourts.gov/opinions/pub/files/201415205.pdf

FLMD

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

CA11: Rare Federal Criminal Case Involving Juvenile Sentencing

[Blogger’s Note: This case does not address the fact that the United States Sentencing Guidelines define a life sentence as
470 months. See United
States Sentencing Commission, “Preliminary Quarterly Data
Report Through September 30, 2015”, p.8.8]

Affirming FEDERAL convictions for multiple armed robbery and carjacking crimes committed while he was a JUVENILE, the Eleventh Circuit held that a 685-month (57-year) sentence for a JUVENILE does not violate the Eighth Amendment.

LIFE EXPECTANCY: In discussing life expectancy for an African-American juvenile, the Eleventh Circuit questioned whether factoring his race into the life expectancy equation raises constitutional questions. "By Defendant’s reasoning, and based on the mortality table he cited in the district court, Hispanics should receive longer sentences than either whites or blacks solely because they generally live longer, and Hispanic females should receive the longest sentences of all due to their longer average life expectancy. Such an approach to sentencing would unquestionably lead to challenges from defendants from longer-living ethnic groups who would be subject to longer sentences based on that ethnicity."

GOOD TIME CREDIT = MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE: Although recognizing that the sentence requires release when the juvenile is at least 77 years old, the Eleventh Circuit reasoned: "In short, using only Defendant’s proffered life expectancy data for black males, he is expected to live for almost 49 years after the date of his sentencing; he is projected to live another 53 years if one looks at the longevity of all males his age. Factoring in time-served credit and the opportunity to earn good-time credits, Defendant is eligible for release approximately 43.4 years after the sentencing date, which is over five years before the end of his own projected life span and almost ten years before the date projected for all males his age. [at 67 years of age] Thus, Defendant has ‘some meaningful opportunity to obtain release’ during his lifetime, as required by Graham."

Judge Wilson, concurring: "I concur in the result."

United States v. Mathurin, 14-12239 (11th Cir. Aug. 18, 2017)

http://media.ca11.uscourts.gov/opinions/pub/files/201412239.pdf

FLSD

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

CA11: Fourth Amendment vs. Apple, Microsoft, and Facebook

Affirming various sex trafficking charges, the Eleventh Circuit held:

BYPASS ORDER TO APPLE COMPUTERS: The district court’s order directing Apple Computer to assist in bypassing an iPad’s security feature did not violate the All Writs Act because:

  1. the order was necessary and appropriate as there was no other way for the FBI to search the contents of the iPad;
  2. there is no statute expressly permitting or prohibiting a bypass order;
  3. the bypass order is not contrary to the Congressional intent of the Communications Assistance for Law Enforcement Act (CALEA), 47 U.S.C. §§ 1001–1010:
  4. "If this case were about a court order forcing Apple to initially design its devices so that law enforcement would be capable of accessing them in the future, § 1002’s exemption of information services companies would be relevant. But that is not what this case is about. It is, instead, about a device that has already been designed, manufactured, sold, and used, and about how to access the information on that device. In light of the distinction between initial design and later access, § 1002 does not show that bypass orders are inconsistent with congressional intent."
  5. Apple "is not so far removed from the underlying controversy that its assistance could not be permissibly compelled" because:
  6. "Apple continued being connected to Blake and Moore’s use of the iPad even after they bought it: the iPad ran on an operating system owned by Apple (Blake and Moore were only licensing it); Apple servers conveyed messages sent from the iPad; and Apple servers backed up the iPad’s data. See Apple, Inc., Apple iOS Software License Agreement 1 (2016), http://apple.co/2nl946W; Greg Kumparak, Apple Explains Exactly How Secure iMessage Really Is, TechCrunch (Feb. 27, 2014), http://tcrn.ch/2kNxy3q."
  7. The bypass order did not place an unreasonable burden on a third party because, in order to comply with the bypass order, " Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements."

SEARCH WARRANT FACEBOOK ACCOUNTS:

  • The FBI did not lack probable cause to search the defendant’s Facebook account because the defendant listed her occupation on her Facebook page as "Boss Lady" at "Tricks R [U]s", thereby linking her Facebook page to the sex trafficking conspiracy.
  • "The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account. See p. 4, above. And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a ‘general warrant.’" Nonetheless, the Eleventh Circuit held that the warrants in this case fell under the "good faith exception" to the Fourth Amendment because, "while the warrants may have violated the particularity requirement, whether they did is not an open and shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid."

SEARCH WARRANT FOR MICROSOFT EMAIL:

  • Although finding the search warrant for the Microsoft email account was sufficiently particular to satisfy the Fourth Amendment, the Eleventh Circuit noted in footnote 7: "It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional."

United States v. Blake, Moore, 15-13395 (11th Cir. August 21, 2017)
http://media.ca11.uscourts.gov/opinions/pub/files/201513395.pdf

From Southern District of Florida

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

4DCA: Trial Judge Wont Consider Mental Health for Downward Departure = Fundamental Error

A trial judge committed fundamental error when he implied that he would not, as a general policy, consider the defendant’s mental health needs as a basis for downward departure. Reversed and remanded for resentencing before a different judge.

Concha v. State, 4D16-2046 (Fla. 4th DCA Aug. 16, 2017)

https://edca.4dca.org/DCADocs/2016/2046/162046_DC13_08162017_090809_i.pdf

St Lucie Co

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

4DCA: Finds Racial Discrimination in Jury Selection

"[E]ven taking into account the trial court’s superior vantage point, we conclude that the trial court abused its discretion in allowing the strike of Ms. T. Because the prosecutor’s only race-neutral explanation for striking Ms. T applied equally to three non-African American jurors whom the state ultimately did not challenge, any suggestion of genuineness is refuted by the record. Indeed, when defense counsel specifically pointed out that there were other jurors who were still on the jury panel whose family members had also been arrested, the prosecutor did not attempt to explain the disparate treatment of Ms. T in comparison with similarly situated jurors. Nor did the prosecutor otherwise advance any argument that could support a finding of genuineness."

Reversed and remanded for a new trial.

Hunter v. State, 4D15-4475 (Fla. 4th DCA Aug. 16, 2017)

https://edca.4dca.org/DCADocs/2015/4475/154475_DC13_08162017_085444_i.pdf

Broward Co.

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

3DCA: No fundamental error / witness bolstering

It was not fundamental error for the state’s deoxyribonucleic acid expert to bolster her credibility by testifying about how her work was reviewed by a colleague.

Simon v. State, 3D15-2289 (Fla. 3d DCA Aug. 16, 2017)

http://www.3dca.flcourts.org/opinions/3D15-2289.pdf

Miami-Dade Co

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com