United States v. Grimes

BLACK, Before ANDERSON Circuit *, Judges, and HOEVELER District Senior Judge.

BLACK, Judge: Circuit 18,1996, Appel- On March convicted knowingly lant Arthur James Grimes of maliciously damaging building used or affecting interstate commerce means 844(i). explosive, in violation of 18 U.S.C. judge imprison- Grimes life sentenced appeals arising ment. several issues investigation from that resulted trial, charge, sentencing. his and his hold district court not err that did denying to suppress Grimes’ motion and that there trial was no reversible error Grimes’ sentencing procedures. af- We therefore firm conviction and sentence.

I. BACKGROUND Appellant a mainte- Grimes worked as supervisor Apartments nance for Cedar Cove Jacksonville, Florida, 1980s. the late Todaro, Cove, Kathy manager of Cedar (1) he eventually saying fired Grimes * Hoeveler, sitting by designation. Honorable William M. Senior U.S. Dis- Florida, Judge trict District the Southern (2) he was met unresponsive pages; On October Pender with an had been attorney’s using investigator from company time the state office operating a business materials; reported divulged many had was a dis- company there regarding bombing. details stat- Cedar Cove crepancy in his overtime hours. Grimes agreed investiga- many cooperate him Pender with people out ed that he knew wanted tape tors2 and future conversations with company, suggested but that Todaro Grimes. mainte- wanted him out so the assistant job. supervisor could have the

nance 13,1994, On December Grimes was arrest- charges. ed on worthless check The follow- fired, a friend he was Grimes told After ing day, appointed counsel was and Grimes who going up to “blow the bitch” he was signed rights Copies a claim form.3 tamper fired him. He said he could placed jail court copy files and a laundry up the boiler in the room and blow attorney’s was served on both the state office suggested He also there were whole crew. (JSO). and the Jacksonville Sheriffs Office ways complex. harm other he could jail, inmate, told a fellow While Grimes Douglas Fin- On March Sherwin there, placed “I the bomb but I didn’t in- lay package on outside observed a the floor I tend —the man was an accident. didn’t (# 101) apartment Cove.1 his at Cedar intend, know, you nobody, just to hurt The “Ballast.” When package was marked property damage and scare some of ten- Finlay up package, exploded. it picked money.” them problems ants and cause and injuries Finlay and died as a suffered severe arrest, Before his Grimes talked about Cedar complex The apartment result of the blast. friend, telling with a him that “the Cove Lord damage the ex- also serious from sustained it, him get would he and shouldn’t have plosion. done it.” neighbors explosion, moved As toward jail. began calling Grimes Pender from two them observed man with a smirk accepted approximately Pender 70 collect walking casually away from the his face many from Grimes calls and recorded neighbors picked later scene. The two those conversations. Pender also visited line-up picture photo from a and jail. January Grimes at the On they saw identified him court the man 1995, investigators to solicit in- told Pender away bombing. walk from the criminating Grimes. Dur- statements from jail, Pender, ing a visit to the at the direction began later for Kenneth Grimes work investigators, told that he Grimes knew “gofer.” Grimes and Pender as When illegal people some who were involved difficulty repairing encountered Pender hiring activities and were some- interested lodge, system hunting electrical at a Grimes expertise burning bombing. one with began talking about electrical switches Thereafter, many Grimes and Pender talked on a described the button timers. Grimes working times about Grimes’ interest working the button on refrigerator as “like ability experience people and his these bombing plate at the at Cedar steel regarding bombing. arson during crying spells had Cove.” Grimes also Pender, called, February 8,1995, guilty pled I told the which he told “I On Grimes place” charges check and was re- going up bitch I to blow the the worthless Pender, jail. request “it It wasn’t from at Grimes’ wasn’t meant for old man. leased my investigators, picked even maintenance took and on direction from man jail. up from and Pender place.” Grimes Grimes form, 3.Through purported to During employed assert 1. the time that Grimes was Grimes Cove, apartment used to store right Cedar 101 was counsel Sixth Amendment his under the supplies for the maintenance crew. right right and his to remain silent and coun- under the Fifth Amendment. sel through investigation conducted joint Office and effort of the Jacksonville Sheriff’s attorney’s office. state 8bh(i) § Constitutionality A. Augustine -to meet in St. drove to a hotel hiring interested people who were unconstitu- argues that Grimes This, of experienced with bombs. someone him in facially applied and as tional both course, and the individuals wait- was a ruse argument is based on United this case. The actually ing for and Pender Grimes Lopez, 514 U.S. investigators. Pender told undercover (1995), in which the Su- change his mind and that he could Free School preme found that Gun hunting him their would take Pender because it Act was unconstitutional Zones that he did not have camp. He told Grimes clause au- Congress’s commerce exceeded “Frank,” man but to meet with the business thority. meet Frank. that he wanted to Grimes said facially argument that divulged many During meeting, Every merit. cir unconstitutional is without bomb. about the Cedar Cove details Lopez has examining the issue after cuit got meeting, Frank After the Grimes and Congress exceed its did not determined that back towards Jackson- in a car and headed authority it enacted clause when commerce way, stopped officer a JSO 844(i). ville. On Gaydos, 108 States v. See United them, custody, Frank into appeared to take Cir.1997); police to come to the Corona, Cir.1997); and asked Grimes station, police arrest- McMasters, 1394, At the officers station. v. 90 F.3d United States charge of arson his (8th ed Grimes on state Cir.1996); v. DiSan United States 1398 (1st mother’s home.4 to, 1238, Cir.1996); 1245-46 86 F.3d Sherlin, 1208, 1213- v. 67 F.3d United States 1995, 5, jury April grand On federal 844(i) (6th Cir.1995). § also hold that 14 We knowingly malicious- indicted Grimes on its face. is constitutional affecting building in or ly damaging a used that, if even Grimes also by explo- an commerce means of interstate 844(i) face, § on its the Gov 7, is constitutional began The trial on March sive. apartment not show that ernment did by jury and sen- convicted Grimes was by explosion in this building damaged by imprisonment the trial tenced to life requisite interstate commerce case had the judge. dem nexus. hold that the Government necessary interstate commerce onstrated the II. DISCUSSION connection. 858, States, In v. following Russell United appeal, makes the On Grimes 844(i) (1) 862, 829 85 L.Ed.2d § is uncon- 105 S.Ct. arguments: 18 U.S.C. (2) (1985), Supreme Court found that facially applied; and as stitutional both 844(i) property that “only applies § nor- improperly denied benefits Grimes was ‘activity’ commerce. in an that affects person capi- of a ‘used’ mally afforded to a accused (3) unquestionably offense; by The rental of real estate is court erred tal the district Russell, activity.” an obtained such failing suppress certain evidence 844(i) convic- upheld the defendant’s Fifth and Sixth Court in violation of Grimes’ (4) tion, in a commerce clause chal- the face of rights; and Amendment a two-unit lenge, attempting to burn sentencing statutes amended limitations building. The Court noted apartment Facto Clause of the the Ex Post violated history legislative suggests that Con- “the Constitution.5 arrest, penalties improperly attached to advised of admitted that he burned 4. Prior getting crime; keep (4) by his uncle from admit- mother’s home to court erred his the district 404(b) it in foreclosure. ting act evidence under Rule extrinsic Evidence; (5) grand the Federal Rules arguments makes several additional 5. Grimes improperly petit juries informed of the (1) the district discussion here: that merit no We affirm. See 11th Cir. R. death of the victim. (2) juror; substituting an alternate erred court Grimes was denied 36-1. right to his constitutional jury; grand by grand indictment

1347 Crowell, 1977); F.2d protect all business United States v. 498 intended to gress least (5th 324, Cir.1974); property 325 United States v. well as some additional property, as (5th 570, Cir.1971); description, per Hoyt, but F.2d 571 might not fit that 451 Unit- every Goseyun, Id. Circuit haps private home.” ed States v. 789 F.2d 1387 not one, Russell, (9th Cir.1986); including this examining Shepherd, United States v. courts (7th Cir.1978); agreed remains authorita that Russell 727-29 have United (8th Lopez. Weddell, See Bel precedent even after F.2d tive v. 567 767 Cir. States States, 1977); Maestas, 129 1462 v. F.3d United F.2d United States v. 523 flower Cir.1997); (11th Chowdhu Cir.1975); United States v. v. 319 Loux United (11th Cir.1997); Cir.1968). States, United 743 ry, 118 F.3d F.2d 915 Cir.1998), Tocco, States all not cited cases indicate that defendant is — U.S.-, denied, rt. re- entitled to benefits he would otherwise ce (1998); L.Ed.2d United States capital government in a if the ceive case (5th Cir.), 796, 798 cert. Nguyen, 117 F.3d announces that it will not seek death — denied, -, penalty penalty or the death is otherwise (1997); Gaydos, unavailable force of law.8 Grimes was (3d Cir.1997); properly capital afforded to denied benefits (1st DiSanto, stipu- defendant because the Government Cir.1996). building damaged apartment lated that it would seek the interstate commerce in this ease satisfies thereby into a transformed this case under the Russell standard. nexus of proceeding. non-capital from the violation results No constitutional here.

application of C. Admission Grimes’ Statements Capital B. Defen- Benefits Afforded worthless When Grimes was arrested on ' dant signed charges, rights a claim of check he copies he served on the state attor- argues that should have form9 and ney’s Copies office were also procedural afford JSO. received all of the benefits jail though placed in his court and files. capital in a case6 even person toed stated, execution of the claim of prior the record that his Government on trial, rights effectively his Fifth the death form invoked it would not seek to rights for Amendment Amendment This issue is controlled and Sixth penalty in this case. subsequent purposes, including the by binding precedent7 which is accord all therefore, argues, charges at here. He majority other circuits. See United issue with 467, statements, including he Kaiser, those Cir. that certain Florida, hereby ap- right Fourth Judicial Circuit of asserts capital has the to two 6. A defendant 3005, statements, copy pointed lawyers, any right 18 U.S.C. or to make oral his/her government's venire three witness list and the written, regarding the facts or circumstances trial, per- days and 20 before 18 U.S.C. offense(s) charged, or with which is he/she 24(b). emptory challenges, Fed.R.Crim.P. regarding any crim- or circumstances of facts (but charged which is not inal offenses for he/she Prichard, City 661 F.2d 7. In Bonner suspect), merely unless is a witness or his/her Cir.1981) (en banc), this Court any attorney present during questioning and/or binding precedent adopted all decisions of the any making statements. The Defendant such prior down to close former Fifth Circuit handed right right to and the to claims counsel September 1981. his/her of business pursuant and 6 silent to Amendments 5 remain Only the con- Circuit has reached 8. the Fourth of the United States. of the Constitution capital to defen- clusion that benefits afforded any 2. further asserts that future Defendant punish- anytime the offense dants are available able present to have counsel remain waiver to by regardless the death of whether (with writing be reference to this silent must notice), being sought. actually States v. given only after been notice has (4th Cir.1973). Watson, 496 F.2d attorney intention to Defendant's his/her form, right provided opportunity pertinent part, waive and an rights 9. claim attorney provided: discuss the Defendant his/her Defendant, together rights. with under- 1. The waiver of these counsel, signed Defender for the the Public made to jail Pender while he Miranda rights. invoke his support of its McNeil, those he made agent position, to the undercover in St. the Government cites Augustine, suppressed. should have been which the noted Court that it has never held that Miranda rights anticipatorily can be Right Sixth Amendment

1. to Counsel. McNeil, invoked. 501 U.S. at 182 n. at 2211 n. S.Ct. 3. The Court stated: guarantees The Sixth Amendment right to stages” counsel at all “critical of a If the Miranda right to counsel can be Jackson, Michigan v. prosecution. criminal preliminary invoked at hearing, it could 625, 629-30, 106 1404, 1407-08, 475 U.S. argued, logical be why there is no reason it (1986). Supreme 89 L.Ed.2d 631 Court prior could not be invoked a letter has stated right that the Sixth Amendment arrest, prior or indeed even to identifica- McNeil v. specific. to counsel is offense suspect. rights tion as a Most must be Wisconsin, 501 U.S. 111 S.Ct. government asserted when the seeks to argu they protect take the action against. The ment that the use of statements elicited fact that we have allowed the Miranda agents undercover after his arrest on unre counsel, right asserted, once to be effec- charges lated violated his Sixth Amendment respect tive with to future custodial inter- right to counsel therefore lacks merit. Even rogation necessarily does not mean that we if Grimes’ invoked his Sixth Amendment initially will allow it to be asserted outside counsel, right right extends interrogation, context of custodial charges the worthless cheek and does not similar future effect. beyond charge extend to the Id. Several circuits have held that Miranda investigation. No Sixth Amendment viola rights may anticipatorily not be invoked. tion occurred here. LaGrone, See United States v. 43 F.3d (7th Cir.1994); Redman, Alston v. 335-40 Rights. Amendment Miranda Fifth (3d Cir.1994); 1242-51 Arizona, In Miranda v. Thompson, 103-04 (1966), 16 L.Ed.2d 694 the Cir.1994); Wright, United States v. recognized that, in order to (9th Cir.1992). 953, 954-56 The Seventh Cir- protect suspect’s right Fifth Amendment cuit stated that “in order for a defendant to himself, not to suspect incriminate must his Miranda invoke rights, the authorities prior interrogation warned custodial conducting interrogation, must be or interro- right that he has the to remain silent and the LaGrone, gation must be imminent.”"' 43 right attorney to present. have an In con F.3d at 339. The court determined that such right trast to the Sixth Amendment to coun a formulation goals “advances the twin sel, rights these Fifth Amendment are not Miranda: providing opportunity an for the necessarily limited to the offense for which dissipate defendant compulsion to the suspect was arrested. The Fifth Amend allowing ability law enforcement the to con- right ment “scrupu to remain silent must be Id. at 339-40. We find investigations.” duct lously honored” once it has been invoked. reasoning persua- of our fellow circuits Michigan Mosley, 96, 104, 423 U.S. 96 Miranda rights sive and hold that may be 321, 326, (1975) S.Ct. 46 (quoting L.Ed.2d 313 only during interrogation invoked custodial Miranda, 479, 1630). 384 at U.S. 86 S.Ct. at interrogation or when is imminent. We right The Fifth Amendment to counsel is not therefore hold that Grimes’ execution of the McNeil, specific. offense 501 U.S. at rights claim of form was to insufficient in- 111 S.Ct. at 2208. The Fifth Amendment voke his Miranda rights. provide protection could therefore for Grimes questions The that remain are whether the here. Grimes a Miranda police given should have argues rights warning The Government that government agents before ques- may and, so, under the Fifth Amendment not be anti- tioned him if whether statements cipatorily invoked and that Grimes’ execution made in warning the absence of a should rights of the claim of form suppressed. was insufficient to have been The

1349 privilege ment not Fifth Amendment is violated even in Miranda held that “the damning admissions.” prohibits most privilege against self-incrimination Washington, by suspect 97 given a dur- 431 U.S. S.Ct. admitting statements prior a interrogation’ without 52 L.Ed.2d 238 ing ‘custodial Perkins, warning.” Illinois v. The Government that coercion S.Ct. Miranda against to designed protect which Miranda). (citing The admission present attempted was not when to Pender to Mi- would offensive Grimes’ statements incriminating solicit statements from Grimes. if, randa only at the time the statements Perkins, In S.Ct. made, was he was unwarned and both were Supreme Court considered whether a sus- (a) (b) interrogated. custody being in when, without Mi- pect’s rights were violated randa warnings, making into duped he was Augustine a. Statements. The Saint incriminating statements to an undercover posing officer as a fellow inmate. The Court person a question The of whether warnings not concluded that are Miranda perspective from the custody in is viewed necessary ingredi- in such case position because person in the a reasonable Adams, atmosphere police-dominated ents suspect. United States Cir.1993). compulsion present are an incarcer- not when was not Grimes freely person speaks person ated he to that he to the undercover custody in when talked 296-97, Id. at is a fellow inmate. believes Augustine. gave agent Pender St. The at 2397. -Court stated that than option going other somewhere know he is suspect “[w]here the does not that Augustine. Grimes indicated the hotel St. speaking government agent no there is and to talk go he to the hotel wanted possibility hotel, reason to assume to Frank. While at feel coerced.” Id. suspect might way. any A reasonable not restrained further S.Ct. at 2398. The Court noted: position would not person suspect’s Miranda custody. he have felt that Miranda premise It is the warnings required not before meet inter- danger of results from the coercion Augustine. ing with Frank dis St. custody interrogation. and official action by denying the motion court not err trict did Miranda reject suppress statements to Frank. suspect warnings required are whenever custody sense and con- a technical b. Statements to Pender. happens be a who verses someone government agent. Supreme Court has stated- that at 297, Id. at 2397. Miranda ‘interrogation’ under re term “the Stubbs, Cir. but also express questioning, fers 1991), a case where part of the we were confronted with any or actions on the words (other cellmate re normally defendant’s codefendant police than those attendant layed inculpatory statements the defendant’s custody) police that should to arrest and challenged the police. The reasonably likely an in defendant know to elicit are and, relying on suspect.” of the statements response from the admission criminating 291, 301, 100 Perkins, Innis, that “Miranda Fifth v. we stated Rhode Island 446 U.S. implicated not 1682, 1689-90, Amendment concerns are 64 L.Ed.2d 297 S.Ct. omitted). in a (footnotes definition, misplaces her trust when a defendant that Under relays information— who then made to Pender cellmate statements Grimes by prearrangement voluntary potentially implicate Miranda are the whether that —to Id. at We 832. law officials.” police after told Pender to enforcement ones made underlying recognized then that rationale incriminating from Grimes. solicit statements applicable in prior to that Perkins equally both The Grimes made statements right remain silent government Fifth Amendment product not be the of time could Id. We stated “[ajbsent officially right contexts. to counsel compulsion because some disposed that self-accusation, reasons of that same “[f]or the Fifth Amend- coerced compelled Challenges defendant’s Fifth Amendment self- D. Post Facto Ex claim, incrimination defen- Perkins defeats final ap- Grimes’ two issues center on the that dant’s the circumstances of plication of statutes after the amended com- her conversation with her friend and fellow of his mission crime. Grimes claims that the prisoner compulsion sentencing use amended reflected and amounted of limitations violates statutes the Ex Post Facto Clause of to ‘interrogation’ purposes for of her Fifth the Constitution. We hold that Grimes was right Amendment to counsel claim.” Id. properly tried and sentenced this case. (footnote omitted). We also that the noted Ohio, 167, 169-70, interrogation In Beazell v. of “further re- U.S. definition 68, 68, (1925), S.Ct. L.Ed. 216 the Su Perkins, fined in where the Court made clear preme stated: that suspects ‘[c]onversations between settled, by It of decisions this court so agents do implicate undercover not the con- may well known that their citation be dis- underlying (quoting cerns Miranda.’” Id. with, pensed any pun- statute which 2397). Perkins, at 496 U.S. S.Ct. previously ishes as crime an act commit- We believe Perkins and Stubbs control ted, done, which was innocent which when the outcome of this issue. that the We hold punishment more burdensome the makes use of the conversations between Pender and commission, for a crime after its or which Grimes do violence Fifth no to Grimes’ charged deprives any one with crime of rights provisions or to un- Amendment according defense available to law at the derlying Miranda. committed, pro- time when the act was post as ex hibited facto. Rights. 3. Amendment Due Process Fifth 37, 42, Youngblood, v. Collins U.S. 2715, 2719, (1990), 110 S.Ct. 111 L.Ed.2d 30 also that some of Court noted that the Beazell incriminating statements he made were post ex faithful formulation “is to our facto voluntary and that the circumstances knowledge original best of the understand- produced the statements involved a vio ing Ex Post Facto Under Clause.” process rights. lation of Grimes’ due When a definition, application the Beazell of amend- challenges defendant the voluntariness of a ed statutes crimes committed before the confession, government bears the burden suspect carefully amendment is and must be proving, by preponderance the evi scrutinized. dence, voluntary. the statement was 1. Statute Limitations. Connelly, Colorado crime, When Grimes committed this 515, 522, (1986); Lego 93 L.Ed.2d 473 statute limitations for violation of Twomey, years. five After the crime was 626-27, 30 L.Ed.2d 618 “A district indicted, but committed before Grimes was suppress pres court’s a motion denial of Congress extended the statute limitations question ents a mixed law and fact.” years. seven offense in this ease was Behety, United States on Congress committed March (11th Cir.1994). Construing all facts September the statute amended effective light party, prevailing most favorable to the 1994,10 five-year before the statute findings we review of fact the district court’s expired. grand jury offense Grimes’ but clear error review the 5,1995. April indicted The indict the law to facts de novo. Id. have days five-year sixteen ment came after the alleged reviewed errors the rec expired statute limitations but well of within concerning ord this issue. The district court seven-year argues the statute. Grimes that correctly concluded that the sat Government application seven-year the of the statute of showing of isfied its burden that the state Post limitations violates the Ex Facto voluntary. ments were Clause.11 argues application five-year 10. The statute of limitations has since 11. Grimes also that the of the seven-year been statute of is a bill of attain- reinstated. limitations

1351 in of title.” argues that there vided section 34 this 18 U.S.C. Government 844(i) (1988). 34, turn, § provided the post violation here because Section is no ex facto any that is convicted of crime “[w]hoever was extended before of limitations statute chapter, five-year expired. prohibited by result- original had this which has statute the any person, cases that ad ed the death of shall be sub- Although find no circuit we 844(i), ject penalty imprison- § also the or to all of the to death question this under dress life, jury for if shall in its issue under ment the discretion that have addressed the circuits (1988). 1994, § 18 34 uniformly have held that ex so direct.” U.S.C. statutes other 844(i) § § 34 period the.prose both were amended. The tending a limitations before 844(i) § the ref- the Ex Post 1994 amendment to omitted cution is barred does violate Brechtel, § 34 and the now states States v. erence to section Facto Clause. See United (5th Cir.1993); 1108, “if that results ... [the defendant] United death 997 F.2d 1113 1399, subject any imprisonment for Taliaferro, 979 1402-03 shall also be States v. F.2d (10th Cir.1992); Knipp, years; penalty 963 term of or to the or to v. death United States (6th Cir.1992); 839, 18 imprisonment.” life U.S.C. 843-44 United F.2d (8th (1994). Madia, 538, F.2d 539-40 34 now states “[w]hoever v. 955 Section States Cir.1992); any prohibited v. crime States ex rel Massarella convicted United (7th Cir.1982); Elrod, 688, chapter, which has resulted the death of 682 F.2d 689 105, Richardson, subject any person, 512 F.2d shall be also the death States v. United States, (3d Cir.1975); imprisonment for v. or life.” 18 Clements United 106 (1994). (9th 397, Cir.1959); Relying decid- F.2d Falter U.S.C. cases States, pre-1994 Cir. ed under the version the stat- 23 F.2d 425-26 utes, 1928). join jury that the circuits could now our fellow impose life that application of limita sentence and trial holding that statute judge statutory authority when limitations exceeded his original before the tions extended prison. expired the Ex he sentenced Grimes life period has does not violate Facto Clause. Post general rule is that a defen under the law in dant should sentenced Sentencing Statute. sentencing. Blaik v. effect at the time of See court On the district June (11th States, in prison. to life sentenced Grimes Cir.1997) Guardino, (citing United States because, improper argues that sentence was (6th Cir.1992)); 682, 687 see also place at the statute the version of under States, 411, 413 Hughey n. v. United committed, only a crime was time the n. 109 L.Ed.2d 408 give life sentence. Grimes could im (agreeing with the lower court’s court ex contends that district therefore at the plicit conclusion that law effect statutory sentencing authority in ceeded its controls), superseded by sentencing time him. grounds noted other as in United statute on Arnold, penalties set out the Until Cir.1991). however, apply, The rule does not maliciously damaging destroying or application of law in effect at the time affecting com- if building in or interstate used sentencing post ... would violate the ex “if and stated that death results merce facto subject im- See United provision of Constitution. shall also be [the defendant] Sloan, 1378, 1381 4 n. any prisonment years, term of Cir.1996) (noting of the Sen- imprisonment pro- version penalty or to life argument support has no merit. His Clause of the the Due Process der and violates seven-year process argument appar- His Constitution. ently due that the allegation stat- around an centers to him to a bill of statute limitations amounts Attorney changed request ute without merit. See Nixon v. attainder is likewise Attorney alleges General He General. Servs., 468- Gen. Administrator of Congress change the so statute asked 2777, 2803-05, 53 L.Ed.2d 867 past investigation of case could extend Grimes' allegation no set law. has the limitation This 1352

tencing ‘procedural,’ logical effect at time of is Guidelines the the word it to think sentencing may applied not be if such an changes term proce- that the refers to in the application would violate the Ex Facto Post adjudicat- which a case dures criminal is Constitution); Clause of the Miller v. Flori- ed, opposed changes in as the substantive da, 482 107 U.S. S.Ct. 96 L.Ed.2d law of crimes.” Id. The Government con- (1987) (reversing remanding 351 for re- case, tends that the amendment this which sentencing provisions under the in effect at only jury removed the restriction that a application the time of the offense because of sentence, impose merely proce- could a life provisions the in effect at the of sen- time implicate dural and therefore does the tencing violated the Ex Post Facto Clause of Ex Facto Post Clause. Constitution). the The version of very The amendment here at issue is not sentencing at the effect time of did not refer far removed from the amendment at issue in §to 34 and contained no restriction that a Florida, U.S. Dobbert 432 97 S.Ct. imposed jury. life only by sentence could be a Dobbert, rule, L.Ed.2d 344 53 the general the Under the district court Supreme post an properly considered ex sentenced under the version facto challenge application of the statute in effect at the to the of a time of Grimes’ statute sentencing application changed unless version judge which “the function of the violated the Ex Post Facto jury imposition Clause the in the death sentences in Constitution.12 between [Dobbert] Florida the time commit- charged ted the acts the time he was post The ex implicated concern here facto them.” tried for Id. at 97 at S.Ct. 2295. requirement that a statute not make crime, At the time Dobbert committed the punishment a crime before committed provided the Florida statute penalty enactment its more onerous. Grimes for his actions would death be “unless the allowing judge impose a a sentence verdict included a mercy recommendation of formerly only imposed by that could by majority jury.” Id. at 97 jury requirement. runs afoul intervening S.Ct. at 2296. In the time be- responds change Government that the tween the commission of the crime and Dob- did statute not affect the substantive nature sentencing, legis- bert’s trial and only Florida change of crime and procedure. lature enacted a new statute This based on “[sjeveral that, conviction, provides which after a Court’s statement that of our cases separate sentencing hearing is ‘procedural’ changes have held before described as those which, judge jury. they the trial and the trial Id. though even work to disad- at accused, vantage jury, 97 at 2297. The considering of the do not S.Ct. cer- violate Ex Collins, factors, aggravating mitigating Post Facto tain Clause.” 497 ren- (citations omitted). advisory 110 S.Ct. at 2720 ders an decision. Id. at “[wjhile Court stated further that 2297. binding these cases S.Ct. at The decision is not explicitly they judge do not what judge weighs define mean the trial and the trial true, contends, It is application that circuit whether the case: the amend- considering application pre- courts of the ed of the would violate version statutes the Ex 1994 versions of 34 have consis Post Facto Clause of the Constitution. The Sec- tently authority concluded that had ond Circuit Tocco stated without discussion or impose judge analysis precludes a life and that could sentence that “the Ex Post Facto Clause only impose years application sentence a term of less of the 1994 amendment since [the Tocco, and, than defendant] life. See United States v. committed the arson in 1992 — denied, U.S.-, Cir.1998), Clause, cert. the Ex under Post Facto a retroactive (1998); change the definition a crime or a retroac- Gullett, (4th Cir.), punishment cert. tive increase in for a criminal act is denied,-U.S.-, Tocco, (citations 136 L.Ed.2d forbidden.” 135 F.3d at 132 (1996); Prevatte, omitted). It is unclear whether the issue was (7th Cir.1994); Williams, presented by United States v. the case or whether these state- (5th Cir.1985); dicta; regardless, merely United States Han ments are as will be sen, courts, below, (8th Cir.1985). disagree 755 F.2d 629 we Those seen with conclusion that Court, exception possible with the of the Tocco 1994 amendments violates the question presented were not faced Ex Post Facto Clause. of the Ex Post Facto mitigating circum- be violation Clause. aggravating same present argument to Grimes did not this the judge then sentences Id. The trial stances. generally will not consid- district court. We forth written but must set the defendant the an made for first time on er aggravating the findings concerning of fact only appeal and will review it “under the the circumstances if death mitigating injus- plain to- case, error doctrine avoid manifest imposed. Id. In Dobbert’s is sentence Stevenson, tice.” impris- life advisory jury recommended the (citations (11th Cir.1995) and in- rejected rec- judge trial but the onment omitted). quotations “For the Court ternal Dobbert and sentenced ommendation (1) must plain error: there be correct application claimed that the Dobbert death. (3) error; plain; be the error must penalty death statute the amended Florida of rights.” the must affect substantial Id. error in case. The applied his post was ex facto (citations omitted). if assume that Even we new “[t]he Supreme Court determined be met in the first and third elements could employed simply altered the methods statute case, alleged that the is we hold error determining whether the in not plain not and does meet the second ele- change imposed; there was no was ment. to the quantum punishment attached the of 293-94; at 2298. Id. at crime.” III. CONCLUSION though it that “[e]ven The Court concluded above, defendant, the reasons stated we affirm For disadvantage of a may to the work sentence, holding Grimes’ conviction and change post is ex procedural not facto.” 844(i) is fa- that: section constitutional both 293; 97 Id. at S.Ct. at 2298. case; cially applied in this Grimes was and as deci- that the Court’s We believe capital properly to a denied benefits afforded Dobbert, change in procedural that a sion defendant; the court not err district did imposi- jury’s in the judge’s and the role the suppress; ap- the denying Grimes’ motion to Ex violate the punishment of does not tion statute of limita- plication of the amended Clause, equally applicable Post Facto did not the Ex Post Facto tions violate Dobbert, punish- As the this situation.- Constitution; of the was Clause altered to this crime not ment attached in ef- properly under the statutes sentenced statute; only amendment sentencing. of fect at the time his change procedural one that allocates AFFIRMED. different decision responsibility between two application of the We hold that the makers. HOEVELER, Judge, District Senior 844(i) § of does violate post-1994 version concurring: specially Ex Constitution Post Facto Clause opinion I well constructed concur with the his judge did not exceed and that the trial my Judge wish note Black but authority by sen- statutory imposing life of the regarding the issue effect concern tence. guidelines eliminat- application Finally, argues imposing life ing jury’s discretion amended version application of final issue addressed sentence —the 844(i) applica post § because is ex facto notes, correctly opinion. Judge Black As Sentencing Guidelines eliminated of the tion restrain this compelling reasons to there are maker provided to the decision the discretion issue; neverthe- court’s consideration guide pre-1994 under the statutes. less, my impression initial I to indicate write prison. He therefore range life in line to be may be a colorable claim—one that this judge not have the trial did that the another, pro- appropriate more presented in sen give him than a life less discretion ceeding. prior ver jury, under the whereas a tence explicitly sions contends

given discretion. Grimes his case causes of that discretion absence post-1994

Case Details

Case Name: United States v. Grimes

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 8, 1998

Citation: 142 F.3d 1342

Docket Number: 96-2916

Court Abbreviation: 11th Cir.