Eleventh Circuit Court of Appeals - Published Opinions

Thursday, June 13, 2019

Fox: Upholding USSG 4B1.5(b)(1) Enhancement for a Pattern of Activity Involving Prohibited Sexual Conduct

In United States v. Fox, No. 18-10723 (June 13, 2019) (Martin, Tjoflat, Traxler), the Court upheld the defendant's 360-month sentence for production of child pornography.

First, the Court upheld a five-level enhancement under USSG 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct.  Joining every circuit to address the issue, the Court held that the enhancement does not require multiple victims; it may apply even where there is only a single victim.  The Court also rejected the argument that two unrelated instances of prohibited sexual conduct are necessary to trigger the enhancement; it requires only two separate and distinct incidents, related or not.  Lastly, the Court held that the enhancement could be based on conduct underlying the conviction.

Second, the Court held that the defendant's sentence was substantively reasonable, even though the defendant was 60 years old and unlikely to outlive his sentence.

Monday, June 10, 2019

Cooper: Affirming Wire Fraud and Sex Trafficking Convictions Over Multiple Challenges

In United States v. Cooper, No. 17-11548 (June 10, 2019) (Rosenthal, William Pryor, Newsom), the Court affirmed the defendant's convictions and sentences for wire fraud and sex trafficking over various challenges.

First, the Court rejected the defendant's hearsay/Confrontation Clause arguments.   As to an agent's testimony about the state of mind of foreign victims who did not testify, the Court found that, even if hearsay, the defense opened the door to the agent's testimony on cross examination.  And the agent did not offer testimonial statements from the individuals because he questioned them only to understand why they refused to testify, not to investigate or establish any element of the charged offenses.  As to the agent's testimony about statements made to him by men whose names were listed on visitor logs, the Court again found that the defense opened the door to that testimony.  And while the men's statements were testimonial, any confrontation clause violation was harmless in light of the other evidence at trial.  Finally, as to an agent's testimony that a victim had identified the defendant's voice during a monitored phone call, the Court found that the district court had ample other evidence establishing that identification and that the defendant's statements on the call were admissible as those of a party opponent.

As to additional evidentiary issues, the Court found that the defendant invited his claim of error regarding the admission of additional testimony by the agent.  The district court did not abuse its discretion in admitting evidence under Rule 404(b) because it showed his intent to operate a sex business, his knowledge of the type of business, and that he engaged in a knowing course of conduct.  And the Court rejected the defendant's argument that statements he made to officers outside of his apartment were involuntary, as there was no evidence of coercion.

The Court next found the evidence sufficient to support the defendant's convictions for wire fraud and sex trafficking.

The Court next rejected several claims of error relating to various jury instructions.   First, the district court properly refused to give a defense instruction that was confusing and misstated State Department regulations.  Second, the Court found no error in the court's instruction for using a facility in interstate and foreign commerce to promote an unlawful activity, in violation of 18 U.S.C. 1952(a)(3)(A).  Third, the Court found no error in the court's instruction for importing or attempting to import an alien for the purpose of prostitution or any other immoral purpose, in violation of 8 U.S.C. 1328.  Fourth, the Court found no error in declining to give an immunized-witness instruction because it was covered by the court's instruction to assess each witness's credibility.  Lastly, the Court found no error in declining to give a missing-witness instruction because there was no evidence that the witnesses were in the control of the government or that their testimony would have been favorable to the defense.

The Court next no prosecutorial misconduct when the prosecutor called the defendant a "two-faced fraud" and a "phony" during opening statements, as the government introduced evidence that the defendant used a fake name to run his prostitution business and used false pretenses to lure the victims to the United States.

Lastly, the Court found no error in applying the vulnerable-victim enhancement because the victims were from a foreign country, had difficulty speaking English, and had no other jobs, family, or place to stay without the defendant.

Friday, May 24, 2019

Babcock: Warrantless Seizure of Cell Phone Was Supported by Probable Cause and Exigent Circumstances

In United States v. Babcock, No. 17-13678 (Newsom, W. Pryor, and Vratil), the Court affirmed the denial of a motion to suppress and the defendant's child pornography sentence.

First, the Court rejected the government's argument that officers were permitted to detain the defendant's cell phone under Terry based on reasonable suspicion that he had committed a crime.  The Court concluded that the detention of the phone exceeded the scope of Terry because the officers had detained the phone for two days, it constituted a significant intrusion into a possessory interest, and the officers did not explain why they delayed for two days. 

However, the Court concluded that, under the particular facts of the case, the officers had probable cause to believe that the phone contained evidence of a crime and that exigent circumstances—the need to prevent him from deleting the evidence on the phone—allowed them to seize the phone and then subsequently obtain a warrant before searching it.

The Court also affirmed the defendant's sentence.  First, reviewing for plain error, the Court rejected the defendant's argument that application of 2G2.1(b)(2) and 4B1.5(b) was impermissible double counting.  Second, the Court found that the 324-month sentence, a downward variance, was substantively reasonable.

Friday, May 17, 2019

Thompson: Federal Second-Degree Murder is Crime of Violence Under 924(c)

In Thompson v. United States, No. 18-10488 (May 17, 2019) (Hull, William Pryor, Grant), the Court held that second-degree murder under 18 U.S.C. 1111 was a crime of violence under 924(c).

First, because the movant was in the successive posture, the Court held that his Johnson/Dimaya claim failed in light of the Court's decisions in Ovalles, Garrett, and Solomon.

Second, the Court held that the offense was a crime of violence under 924(c)'s elements clause, relying on the Court's precedent holding that Florida second-degree murder satisfied the ACCA's elements clause.  And, regardless of that precedent, the Court concluded it satisfied the elements clause because, by requiring the killing of another person, it necessarily required a level of force "capable" of causing physical pain or injury.

Monday, May 13, 2019

Grimon: Failing to Allege or Prove Interstate Commerce Element of ID Theft Statute Does not Deprive Court of Subject Matter Jurisdiction

In United States v. Grimon, No. 17-15011 (May 13, 2019) (Hull, Marcus, Grant), the Court affirmed the defendant's identity-theft convictions.

On appeal, the defendant argued that the factual proffer supporting her guilty plea was insufficient to establish that unauthorized access devices affected interstate commerce, and therefore the district court lacked subject matter jurisdiction.  The Court rejected that argument on the ground that the interstate-commerce element was not jurisdictional.  It explained that the interstate-commerce element went to whether Congress had the power to regulate the conduct, not to whether the district court had subject matter jurisdiction over the case.  As a result, even if an indictment or factual proffer fails to sufficiently allege facts affecting interstate commerce, that would not deprive the court of subject matter jurisdiction over the offense; it would go only to the sufficiency of the evidence.  All that's required for subject matter jurisdiction is an indictment charging a violation of a valid federal law.  The Court rejected the defendant's reliance on Iguaran, a title 46 case, on the ground that the statute there required the district court to make a preliminary determination of subject matter jurisdiction.

Wednesday, May 08, 2019

Rothenberg: Courts Not Required to "Disaggregate" Victim Losses in Child Pornography Restitution

In United States v. Rothenberg, No. 17-12349 (May 8, 2019) (Hull, Ed Carnes, Rosenbaum), the Court affirmed 8 child pornography restitution awards and vacated 1 award, providing a detailed analysis how courts should calculate restitution in these cases.

Applying the Supreme Court's decision in Paroline, and reviewing the opinions from other circuits in detail, the Court primarily held, after a lengthy discussion, that district courts are not required to "disaggregate" the victim's losses caused by the initial abuser, distributors, and possessors when calculating restitution.

Next, the Court held that Paroline abrogated Eleventh Circuit precedent holding that restitution cannot be based on loss estimates that were made before the particular defendant's arrest and thus before the victim was apprised of his offense.

Next, the Court held that, although two victims did not submit expert reports detailing their losses, no such report was required.  As to one of the victims, the Court found that the evidence supported the award because the victim's attorney submitted a declaration estimating her likely losses based on the attorney's experience representing similar victims.  As to another victim, however, the Court found the evidence insufficient because the victim's attorney did not submit any reasonable estimate of the victim's total losses.  Rather, that attorney relied on a civil law and a proposed bill that never became law, neither of which established her losses.

Thursday, May 02, 2019

Spence: Courts may Consider Extraterritorial Conduct as Relevant Conduct at Sentencing

In United States v. Spence, No. 17-14976 (May 2, 2019) (Anderson, Ed Carnes, Martin), the Court held that courts may consider extraterritorial conduct to impose an enhancement under the Guidelines.

On appeal, the defendant argued that, in light of the presumption against extraterritorial application of legislation, his distribution of child pornography videos while in Jamaica should not be used to enhance his guideline range.  Joining the Seventh, Eighth, and Tenth Circuits, the Court declined to extend that presumption to a sentencing court's consideration of relevant conduct.  The Court emphasized that: the defendant was not convicted for conduct outside the country, and considering conduct outside the US for sentencing purposes does not mean that he was sentenced for such conduct; and no statutory or Guidelines provision limited a court's consideration to conduct in the US.  The Court acknowledged that its decision might be viewed as being in tension with decisions from the Second and Ninth Circuit but found them unpersuasive and inapplicable to this case.