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 err