Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, April 24, 2018

Whitman: Upholding Bribery Conviction and Sentence

In United States v. Whitman, No. 15-14846 (Apr. 24, 2018) (William Pryor, Julie Carnes, Antoon), the Court upheld convictions and sentences for bribery, wire fraud, theft, and obstruction stemming the fraudulent procurement of government contracts.

One defendant challenged his bribery conviction on the ground that the court erred by failing to instruct the jury that giving illegal gratuities was a lesser-included offense of bribery.  The Court rejected that argument because the defendant advanced an exculpatory defense predicated on extortion that, if believed, would have required the jury to acquit him of both bribery and giving illegal gratuities.  The evidence thus would not have permitted the jury to acquit him of bribery but convict of him giving illegal gratuities.  As a result, the Court found it unnecessary to decide whether the latter was a lesser included offense of the former.

Another defendant challenged his sentence on the ground that he was not responsible for the entire loss amount attributable to the criminal scheme.  The Court rejected his argument that the actions of other government employees were taken independently and not the product of any criminal agreement.  The record permitted the district court to infer that he agreed to participate in a jointly undertaken criminal scheme.  It did not matter that the agreement was "implicit" or that he did not know every detail of the others' participation; it sufficed that he was fully aware of the objective and was actively involved in it.

Thursday, April 19, 2018

Shabazz: Upholding Tax-Fraud Related Convictions and Sentences Over Numerous Challenges

In United States v. Shabazz, No. 17-10639 (Apr. 18, 2017) (William Pryor, Julie Carnes, Corrigan), the Court affirmed the defendant's tax-fraud convictions and sentence over a number of challenges.

First, the Court rejected the defendant's challenge to the admission of evidence from his wallet, because the search-warrant affidavit established probable cause to search the home where the wallet was found; and because the wallet was not outside the scope of the warrant, which authorized the agents to search for debit cards, among other things.

Second, the Court found that the district court did not clearly err by crediting the officers' testimony that they gave the defendant Miranda warnings, even though there was no corroborating evidence of the waiver.

Third, the Court found that the district court did not abuse its discretion by admitting evidence of uncharged tax returns because they were inextricably intertwined with the charged conduct, or by admitting photographs of the defendant and his wife with large sums of money in light of their financial circumstances.

Fourth, the Court concluded that the defendant waived his constitutional right to wear street clothes at trial by expressly declining the court's suggestion that he change into a suit and attempting to use his prison garb to his strategic advantage.

Fifth, the Court found no error when the district court instructed the jury on a Pinkerton theory of conspiracy, because there was ample evidence that the defendant joined a conspiracy and that the charged substantive offenses were reasonably foreseeable consequences of the conspiracy.

Sixth, the Court concluded that the evidence was sufficient to support the convictions, rejecting the defendant's argument that the evidence was insufficient to prove a conspiracy or, for the aggravated identity count, insufficient to prove that he knew the means of identification belonged to real people.

Lastly, as to the sentence, the Court concluded that: a) the district court did not clearly err by imposing a four-level minor-role enhancement, because there was substantial evidence that the defendant managed the scheme, there were at least five participants, and the court did not reverse the burden of proof; b) the district court did not clearly err by calculating the intended loss amount, upholding a methodology that considered losses from tax returns that used a common address, even though the defendant did not file them himself; and c) the 277-month sentence, the result of a downward variance, was substantively reasonable.

Wednesday, April 11, 2018

Suarez: Rejecting Challenge to GPS Search and Upholding Sua Sponte Obstruction Enhancement

In United States v. Suarez, No. 16-16946 (Tjoflat, William Pryor, Anderson) (per curiam), the Court upheld the defendant's alien smuggling convictions and sentence.

As to the conviction, the defendant argued that coast guard officials violated his Fourth Amendment rights by searching the GPS device on his boat.  In rejecting that argument, the Court relied heavily on the  terms of a consent form that he signed, which authorized a complete search of the boat for any law enforcement purpose.  That consent, the Court reasoned, included searching the storage compartment of the boat where the GPS was located and powering up the GPS once it was found.

As to the sentence, the Court rejected the defendant's challenge to the obstruction of justice enhancement under U.S.S.G 3C1.1.  First, the Court rejected the defendant's argument that the court violated his due process rights by imposing the enhancement sua sponte, because a witness's perjured testimony at trial, coupled with the existence of the Guideline itself, put him on notice of a potential enhancement.  The Court also found that the court did not refuse to hear from defense counsel on the enhancement; counsel simply failed to argue the point.

The Court then found no clear error in application of the enhancement, because the defendant was aware of the witnesses' potential perjurious testimony in advance and thus suborned perjury.  That finding was not clearly erroneous because, even though the government did not seek the enhancement, it was based on evidence adduced at trial.

Thursday, April 05, 2018

Carroll: Reversing Child Pornography Conviction for Insufficient Knowledge of Peer to Peer Distribution

In United States v. Carroll, No. 16-16652 (Apr. 5, 2018) (Wilson, Dubina, Goldberg), the Court affirmed in part and reversed in part the defendant's child pornography convictions.

First, the Court concluded that a warrant affidavit supported the conclusion that there was probable cause to believe that child pornography would be found in the defendant's home.  The affiant explained how peer to peer file sharing worked and how the officers used the program to identify the defendant's IP address.  The Court rejected the defendant's argument that the issuing magistrate was required to personally review the pornographic material.  The Court also rejected the defendant's argument that the warrant failed to satisfy the particularity requirement, because it detailed the types of electronic items to be seized in the home.

Second, the Court found the evidence sufficient to uphold the defendant's possession conviction, because there was evidence that he knowingly possessed the images: although the files were discovered in an unallocated space on his computer and were deleted, there was evidence that he regularly and manually downloaded files to his computer over an 11-month period. 

However, the Court concluded concluded that the evidence was insufficient to sustain the defendant's distribution conviction, because there was no evidence that he knew he was sharing child pornography when they were automatically placed in a shared folder.  There was nothing in the record to indicate that he was aware that the items in this folder were automatically distributed to the peer to peer network, and the mere fact that he used a peer to peer program was insufficient by itself.  The record did not include any indication that the program prompted the defendant to chose to share downloaded files, enabled a sharing function, or accepted a licensing agreement that involved setting up a shared folder.

Finally, the Court affirmed sentencing enhancements for possession of more than 600 images and for possessing sadistic or masochistic conduct.  As to the former, the Court counted files located in the unallocated location because the defendant manually downloaded them.  As to the latter, the offenses depicted vaginal and anal penetration of young girls, and that sufficed.  And this was not double counting because they were not fully accounted for in the base offense level.

Maxi: Drug Trafficking Convictions Affirmed Over Various Suppression Challenges

In United States v. Maxi, No. 15-13182 (Apr. 5, 2018) (Martin, Jordan, Walker), the Court affirmed the defendants' drug-trafficking convictions.

As to one defendant, the Court affirmed the denial of his motion to suppress the search of a duplex.  The Court first concluded that the defendant had standing to challenge the search because, despite contradictory information and testimony, he paid rent, had a key, had been living there intermittently for three to six months, and kept some important papers there.  Because he was effectively a subtenant, not merely an overnight guest, he had a reasonable expectation of privacy.

The Court then accepted the defendant's argument that the police impermissibly entered the curtilage of the home, because they did so with the tactical purpose of securing the duplex and detaining anyone inside, which exceeded the implied license granted to the public and that of a knock and talk.  However, the Court concluded that the officer's unconstitutional violation pertained only to the manner of their approach, not the actual entry into the curtilage, and it did not result in the production of evidence that would not have otherwise been discovered had an officer conduct a permissible knock and talk.

The Court rejected the defendant's argument that he did not open the door voluntarily, because the district court found that he did not open the door in response to a show of authority.

The Court rejected his argument that the police committed another Fourth Amendment violation by breaking down the metal security gate and arresting him in his home without a warrant, because the arrest was supported by both probable cause and exigent circumstances: an officer saw a substantial quantity of drugs in the home and had received a tip that several guns were located there; and there was a risk that evidence would be destroyed if they left the duplex to get a warrant.

The Court next concluded that, even if the subsequent protective sweep and walk-through were illegal (which it noted was problematic because the home had already been secured), the evidence was nonetheless admissible under the independent source doctrine.

The Court then rejected the other defendant's two arguments.  First, it rejected his argument that there was no "necessity" for a wiretap because other investigative methods were available: the supporting affidavit stated that search warrants, confidential sources, pen registers, and visual surveillance had not allowed the police to track drug deliveries; undercover agents were unlikely to penetrate the group; and the conspirators were wary of surveillance.  The Court also rejected the argument that the affidavit omitted material facts--namely, that the confidential source was a former lieutenant in a drug organization and a lessee on one of the stash houses--because the defendant failed to show that the omissions were intentional or reckless, or that their inclusion would have undermined a finding of probable cause.

Lastly, the Court concluded that there was sufficient evidence to support a flight instruction.

Monday, April 02, 2018

Lee: Florida Robbery Remains a Violent Felony For Now, But Judges Disagree with Circuit Precedent

In United States v. Lee, No. 16-16590 (Apr. 2, 2018) (Jordan, Martin, Ginsburg) (per curiam), the Court re-affirmed its many circuit precedents holding that Florida robbery -- of all varieties and all years of conviction -- satisfies the elements clause of the ACCA and Sentencing Guidelines.  

The panel recognized that the defendant's contrary arguments "have some force," and it "might well agree with them" were it writing on a clean slate, citing Judge Martin's earlier concurrence in Seabrooks.  However, the Court was bound by its prior panel precedents, even if they were wrong, poorly reasoned, or failed to properly apply the law.

Judge Jordan concurred, opining that the circuit's precedents were wrong, because robbery by "putting in fear" and robbery by "force" in Florida did not necessarily require the use, attempted use, or threatened use of violent force.  He concluded: " When we wrongly decided in Dowd, and then Lockley, that Florida robbery is categorically a violent felony under the elements clauses of the ACCA and the career offender provision of the Sentencing Guidelines, we dug ourselves a hole. We have since made that hole a trench by adhering to those decisions without analyzing Florida law. Hopefully one day we will take a fresh look at the issue."  He might just get his wish: the Supreme Court today granted review in Stokeling to decide this very question.

Harris: Upholding Obstruction and Witness Tampering Convictions Over Various Evidentiary Challenges

In United States v. Harris, No. 16-17646 (Jill Pryor, Hull, Proctor) (Apr. 2, 2018), the Court affirmed the defendant's witness tampering and obstruction convictions over four evidentiary challenges.

First, the Court rejected the defendant's Rule 403 argument that it was unduly prejudicial for the government to introduce evidence of a murder for which she was never charged, because that evidence was highly probative of the obstruction charge and necessary to provide the jury with necessary context about it.  The Court also found that the admission of five gruesome and inflammatory photographs of the murder was probative and did not carry an impermissibly high risk of inflaming the jury.

Second, the Court rejected challenges to the admission of hearsay evidence, because the statements were not offered to prove the truth of the matter asserted but rather to show its motivational effect on others.  The Court also rejected a Rule 403 challenge to that evidence because it had probative value to the obstruction charge and thus its unfair prejudice did not substantially outweigh its probative value.

Third, the Court found that certain statements satisfied the co-conspirator exception to the hearsay rule in Rule 801(d)(2)(E).  The Court rejected the defendant's argument that the statement were not made during the course of the conspiracy but were merely narrative declarations.  The Court again rejected a Rule 403 challenge to their admission.

Finally, the Court found that the court properly admitted a protective order because it was relevant and probative of the witness-tampering charge.  Although the defendant was unaware of the protective order, its existence showed that the witnesses faced substantial risks and therefore reasonably could have interpreted the defendant's communications as a threat.

Friday, March 30, 2018

Machado: No Speedy Trial Violation Despite Five-Year Delay Between Indictment and Arrest, but Plain Sentencing Error for Failing to Personally Afford Defendant Opportunity to Allocute

In United States v. Machado, No. 16-16449 (Mar. 30, 2018) (Hull, Marcus, Anderson), the Court upheld the defendant's wire fraud convictions after a trial but vacated his sentence.

Applying the four Barker v. Wingo factors, the Court first found no speedy trial violation stemming from the five-year delay between his indictment and arrest.  Focusing on the disputed second factor, the Court concluded that the government made good-faith, diligent efforts to locate and arrest the defendant after he left the country for Brazil without telling the agent.  The agent visited his home and left a business card, spoke to the defendant and his wife, and periodically checked databases, and the defendant periodically returned to the US under an alias, lived at a different address, and never informed the agent.  The government was not required to seek extradition in this particular case despite the existence of a treaty.  Because all three of the factors did not weigh heavily in the defendant's favor, he was required to show actual prejudice from the delay, and the Court found no such prejudice from his conclusory and speculative inability to locate non-specified persons and records.

Next, the Court concluded that the evidence was sufficient to support the convictions because he had the requisite intent to defraud.   He made material misstatements on loan applications, and there was sufficient evidence that the defendant knew what he was signing even though he was a non-English speaker, including the facts that his English-speaking wife was present and the financial figures were wildly inconsistent with his means.

The Court next concluded that the district court did not abuse its discretion by excluding defense evidence of a federal indictment against the mortgage agent.  That indictment was irrelevant to the current charges because the agent was not a witness or co-defendant in the present case, the charges against him were wholly unrelated to the current charges, the charges involved personal loans that the agent sought for himself not someone else, and the charges against him post-dated the charged offense.  And, in any event, the Court noted that an indictment alone was not evidence of the agent's guilt and was thus likely to confuse the jury.

Despite affirming the convictions, the Court nonetheless vacated the defendant's sentence because the district court plainly erred by failing to afford him the right to allocute.  Although the district court asked defense counsel if the defendant wished to make a statement, the court failed to address the defendant personally.  And it was no excuse that the defendant was using an interpreter.  Because the defendant did not receive the lowest possible sentence, the Court presumed prejudice and vacated the sentence and remanded for allocution. 

Angulo: Court Affirms Title 46 Convictions Over Numerous Trial Objections

In United States v. Angulo Mosquera, et al., No. 16-10261 (Mar. 30, 2018) (Marcus, Martin, Newsom), the Court affirmed the defendants title 46 convictions after a jury trial.

First, the Court rejected the several of the defendants' argument that the court abused its discretion by refusing to sever their trial from that of defendant Angulo's because Angulo intended to introduce polygraph testimony that would prejudice them.  The Court found that they failed to show that there was any likelihood of, or actual, impermissible prejudice from the polygraph evidence. 

Second, the Court rejected the same defendants' argument that the court erred by failing to timely notify them of the pretrial evidentiary about the admissibility of Angulo's polygraph evidence.  The Court did not decide whether they had a right to be present at all evidentiary hearings concerning all of the defendants; instead, it held only that the court did not commit plain error by failing notify the defendants of a pretrial hearing that pertained solely to one of the other defendants, that did not pertain to their guilt or innocence, and that did not result in a binding ruling at that time. 

Third, the Court rejected the defendants' argument that the government committed a discovery violation by failing to turn over a report about Angulo's earlier detention in connection with a different cocaine-smuggling boat, and then asking him about the report on cross examination.  The Court reasoned that, although the government did not dispute that there was a discovery violation, the court properly limited the questioning to information that had been disclosed to the defendants by other means, Angulo did not seek any further relief at trial, and no prejudice had been shown.

Fourth, the Court rejected the defendants' argument that there was error from the prosecutor asking Angulo whether he was a "load guard," because the prosecutor had sufficient reason to ask that question based on the evidence, and any error would have been harmless.

Fifth, the Court rejected the defendants' argument that the prosecutor, on re-direct of a testifying co-conspirator, impermissibly used an agent's report of an interview with that witness.  The Court declined to address whether use of the report was permissible under the rule of completeness because there was no prejudice and nothing contributing to cumulative error.  The Court also found no abuse of discretion in permitting the prosecutor to have a few sentences of the English report read to the witness in Spanish in order to refresh his memory.

Sixth, the Court found no error in refusing to give a "blind mule" instruction to the jury.  That requested instruction was unnecessarily repetitive given the court's substantial instructions on "knowing" and "willful."

As to sentencing, the Court concluded that two of the defendants' 235-month sentences were not substantively unreasonable.  One of the defendants received a downward variance, and the other defendant received a sentence at the low-end of the guideline range.

Judge Martin concurred in the judgment, opining that the case was closer than the majority portrayed it.  First, she expressed concern about the spillover effect of the polygraph evidence.  Second, although the majority did not decide the issue, she rejected, as inconsistent with the record, the government's rule of completeness argument to support use of the agent's report; she said that the government should not have made the argument.  Finally, she disagreed with the majority that Angulo was not prejudiced by the prosecution's use of the undisclosed report about the earlier drug-trafficking incident, and its unsupported characterization of him as a "load guard." 

Thursday, March 29, 2018

St. Amour: It's a Crime to Modify an Airplane Fuel Tank Without Approval Even if Flight is not Imminent

In United States v. St. Amour, No. 17-13352 (Mar. 29, 2018) (per curiam) (Tjoflat, Martin, Jill Pryor), the Court upheld the defendant's conviction for operating an aircraft with an unapproved fuel system.

The Court rejected the defendant's argument that the term "operates an aircraft" only covered actions during or imminent to flight, and thus did not cover the defendant's conduct of merely taxiing and refueling the plane for a flight on the following day.  Relying on statutory and regulatory definitions, the safety purpose of the statute, and decisions by administrative agencies, the Court concluded that the term "operate" encompassed the use of an aircraft of the ground--including the starting, taxiing, and parking of an aircraft--so long as the use was preparatory or incident to flight.  No strict temporal relationship between the use of the aircraft and flight was required.