However, the Court also found that venue was proper for two counts of conspiring to commit securities fraud. Because the travel allowed the defendants to make false statements to investors in person, the flights were overt acts in furtherance of those conspiracies.

While the Court opined that the sentencing hearing “left much to be desired” because an appellate waiver does not relieve a sentencing court of its responsibility to comply with the procedural requirements for sentencing, it ultimately held that the appellate waiver precluded the Court from correcting the errors and dismissed the appeal.

Greer was arrested after police found ammunition in a car they believed Greer had been driving. The car contained documents with Greer’s name on them but had been rented by someone named Tangela. At the time of his arrest, police noted that Greer had the name Tangela tattooed on his arm. At trial, the government had the arresting officer describe Greer’s appearance at the time of arrest – including what Greer’s tattoos said.

Because the government relied on the content of the tattoo to prove a fact, the evidence was “testimonial.” Further because the evidence linked the defendant to the automobile (and the ammunition that was inside of it), it was also incriminating. Thus, its introduction implicated Greer’s Fifth Amendment right against self incrimination.

However, because the tattoo was not compelled by the government, there was no Fifth Amendment violation.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

The Department of Justice won’t disclose whether any prosecutors have been punished as a result of internal ethics investigations, citing privacy rights. However, the DOJ’s attitude might be illustrated by its handling of two federal prosecutors who failed to disclose impeachment evidence about a key government witness. The Seventh Circuit Court of Appeals concluded that the prosecutors “deliberately misled the court and defense counsel.” The DOJ’s response: each prosecutor was suspended for one day.

Woltman pled guilty pursuant to a plea agreement which included a provision whereby he waived his right to appeal any sentence of 27 months’ imprisonment or less – the top of the advisory Guidelines range estimated in that agreement. Then, after signing that agreement but before sentencing, Woltman cooperated with the government and a 5K1.1 letter was filed. Both sides then urged the district court (Judge Platt) to impose a sentence below the advisory Guidelines range. However, the district court refused to consider the 5K1.1 letter, concluding that the plea agreement controlled, and that, “in urging consideration of the 5K1.1 letter, the parties were improperly attempting to repudiate or modify the Agreement – and repeatedly rebuked them for doing so.”

Basically, “the district court believed that because of the appeal waiver, any sentence at or below 27 months was appropriate, regardless of whether or how the 5K1.1 letter and the 3553(a) factors – if considered – would bear on the sentence.”

The district court sentenced Woltman to 18 months and he appealed. The government then moved to dismiss the appeal based on the appellate waiver.

The Circuit stated that it would “not enforce an appeal waiver where – as here – the sentencing decision was reached in a manner that the plea agreement did not anticipate” or “where the sentencing court failed to enunciate any rationale for the defendant’s sentence, this amounting to an abdication of judicial responsibility.” It then described the refusal to consider the 5K1.1 letter and 3553(a) factors as “an error categorically different from a misapplication of a guideline, or a mistake of law, or a dubious finding of fact.”

The Circuit also took the rarely used step of remanding the case to a different judge, citing the “scorn with which Judge Platt approached the matters pertaining to sentencing,” as well as “Judge Platt’s pattern of errors regarding 5K1.1 letters.”

Why the government would actively seek dismissal based on these facts is a mystery. The inflexible manner in which the government approaches this issue is part of the reason that defense attorneys are so concerned about the inclusion of waiver provisions in plea agreements.

The Court held that the subsequent Petition was the first application challenging the new judgment, noting that the errors alleged were new — even those errors which could have been brought in the initial § 2254 Petition.

In reversing that conviction, the Court found that the evidence was sufficient to permit the jury to find beyond a reasonable doubt that there existed a conspiracy for the distribution of cocaine and that the defendant was most likely aware that the packages which were sent to him contained contraband.  However, the Court could not locate in the record any evidence which showed that the defendant knew the packages contained narcotics.  As such, the evidence was  insufficient for the jury to find that the defendant had knowledge of the purposes of the conspiracy of which he was accused.

In sum, “proof that the defendant engaged in suspicious behavior, without proof that he had knowledge that his conduct involved narcotics, is not enough to support his conviction for conspiracy to traffic in narcotics.”

After being indicted, Venable had counsel appointed under the Criminal Justice Act.  However, during the first few weeks of the case Venable was not happy with that attorney and asked the district court to appoint new counsel.  The district court refused, ordering Venable to proceed pro se and directing the CJA attorney to act as standby counsel.  Throughout the case, Venable inststed that he had never wished to act as his own counsel.  After a trial during which “Venable constantly expressed his confusion,” he was found guilty and sentenced to sixty months’ imprisonment.

“Although a defendant may waive his right to counsel, the courts entertain every reasonable presumption against the waiver of this fundamental constitutional right.” United States v. Johnson, 659 F.2d 415, 416 (4th Cir. 1981).  With respect to Venable, the Fourth Circuit found that “[n]othing in the record could be construed as a voluntary waiver,” and that “[e]ven if he had expressed a desire to represent himself, such waiver would not have been knowingly and intelligently made because the court failed to inform [him] of his options or conduct any inquiry” into the waiver.  As such, the district court “violated Venable’s Sixth Amendment right to counsel in forcing him to proceed pro se in the absence of a valid waiver.”

The Second Circuit noted that evidence adduced in the district court (in the form of testimony from appellate counsel) established that the failure to raise the claim was not a strategic decision, but based on a mistaken belief that the claim had not been preserved.  Because the arguments raised by appellate counsel were “extremely weak” while the one omitted was “particularly strong,” the representation fell below the standards of reasonably competent performance.