Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, March 28, 2017

Bergman: No withdrawal from conspiracy

In U.S. v. Bergman, No. 14-14990 (March 24, 2017), the Court rejected the argument that the defendant withdrew from the health care fraud more than five years before the indictment, and that the prosecution was therefore barred by the five-year statute of limitations. The Court concluded that the jury could reasonably have found that Bergman resigned his position at the firm that was committing fraud only under threat of being fired, and that this resignation therefore did not constitute the kind of affirmative step to disavow or defeat the conspiracy required for withdrawal. The Court rejected Bergman’s substantive unreasonableness challenge to his 180-month sentence. The Court pointed out that Bergman “played a key role” in perpetuating a scheme that fraudulently billed Medicare of nearly $200 million. The Court rejected a co-defendant’s claim that a “vulnerable victim” enhancement should not have been imposed based on patients who were also co-conspirators. The Court explained that some of the patients, including some who suffered from dementia, were not co-conspirators. [Martin, J., dissented from the statute of limitations holding, concluding that Bergman’s resignation qualified as a withdrawal from the conspiracy].

Thursday, March 16, 2017

McCullough: reassignment of judge permissible after guilty plea

In U.S. v. McCullough, No. 15-15430 (March 15, 2017), the Court held that Fed. R. Crim. P. 25(b)(1), which bar reassigning a case to a new judge after a guilty verdict unless the judge who presided “at trial” is absent or disabled does not bar reassignment after a guilty plea. The Court noted that guilty pleas are governed not by Rule 25, but by Rule 11. The decision to separate Rules 25 and 11 suggests that Rule 25 does not apply to defendants who plead guilty. The Court also rejected the argument that the sentencing judge was too unfamiliar with the record. Turning to the Fourth Amendment suppression issue, the Court held that a traffic stop based on the police’s determination that certain portions of a vehicle’s Alabama licence plate were not clearly visible, in violation of a provision of the Alabama Code. This provided an objectively reasonable basis for the traffic stop. The Court also rejected the argument that the officer’s interpretation of the traffic code was inconsistent with the decision of an Alabama appellate court. Finally, the Court found that McCullough waived his argument in a supplemental authority letter that he was not a career offender, by failing to make this argument in his opening brief.

Friday, March 10, 2017

Butts: rejecting ineffective assistance of counsel claim

In Butts v. GDCP Warden, No. 15-15691 (March 9, 2017), the Court affirmed the denial of habeas relief to a Georgia death row inmate, rejecting his claim that counsel was ineffective for failing to develop mitigating evidence during the sentencing phase of his trial. The Court found that the defense team “thoroughly” investigated mitigating evidence. The Court declined to second guess trial counsel’s strategic decision to focus on residual doubt instead of mitigation evidence.

Tuesday, February 28, 2017

Hughes: Rule 11(c) defendant not eligible for sentence reduction

In U.S. v. Hughes, No. 15-15246 (Feb. 27, 2017), the Court held that a defendant who pled guilty under a Rule 11(c)(1)(C) plea, which binds the district court to impose the sentence recommended by the parties, was not subsequently eligible for a sentence reduction based on an Amendment to the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). The Court noted that the Supreme Court addressed this issue in Freeman (2011), a “plurality” decision in which Justice Sotomayor’s concurrence provided the “less-far-reaching” ground, and therefore represented Freeman’s holding. The Court noted the Circuit split on the holding in Freeman, and sided with the majority view. Under this view, a Rule 11(c) defendant is only eligible for a § 3582(c)(2) sentence reduction if the sentencing judge’s decision to accept the recommended sentence is based on the guidelines (not, as the plurality reasoned, because every sentence is based on the guidelines). Here, Hughes’ plea agreement did not make clear that a sentencing range formed the basis for his sentence. Therefore, Hughes was not sentenced “based on” the guidelines range, and he is not eligible for a sentence modification.

Phillips: Granting 2255 relief where false statement by police officer tainted conviction

In Phillips v. U.S., No. 14-11960 (Feb. 23, 2017), the Court, reversing the denial of § 2255 relief, agreed with the defendant (and the government’s concession) that a prior conviction for drug trafficking was tainted by the false testimony at trial of a West Palm Beach police officer, who was also under criminal investigation for conduct that occurred at the time of his investigation of the defendant. The Court concluded that the officer’s false testimony was “material” to the government’s case, and thus there was “grave doubt” about whether it influenced the jury’s verdict. The Court, however, affirmed the district court’s ruling on two other counts that despite the warrant application’s reliance on false statements by the police officer, there was other information in the warrant that supported probable cause. There was sufficient evidence, apart from the false testimony, to justify the search warrant that led police to the discovery of ammunition in Phillips’ residence.

Tuesday, February 21, 2017

Vargas: Duration of traffic stop not unreasonable

In U.S. v. Vargas, No. 16-14714 (Feb. 16, 2017), the Court affirmed the denial of a motion to suppress evidence on Fourth Amendment grounds, rejecting the argument that the police detained the defendant for an unreasonable time after a traffic stop. The Court pointed out that neither the driver nor the passenger of the vehicle that had been pulled over for a traffic infraction had a driver’s license. The police therefore had a duty to continue to detain them, and prevent them from driving off.

Tuesday, February 14, 2017

Votrobek: Georgia and Florida conspiracies were separate

In U.S. v. Votrobek, No. 14-12790 (Feb. 13, 2017), the Court affirmed the convictions and sentences of defendants convicted of conspiring to distribute drugs and money laundering. The Court rejected the argument that Double Jeopardy barred prosecution for a Georgia conspiracy on the ground that it was the same conspiracy for which a defendant was acquitted after a jury trial in Florida. The Court concluded that the defendant committed two separate conspiracies, noting that the conspiracies did not overlap in time, and involved different co-conspirators. Though the offenses were almost identical, this factor is least important to the Double Jeopardy analysis. Moreover, the overt acts were different – and the conspiracies took place in two separate States: Florida and Georgia. The Court also rejected a challenged failure to hold a Franks hearing to determine whether the probable cause affidavit supporting a warrant lacked a basis. The Court cited the information detailed in the affidavit, and found that it supported the need for a wiretap. The Court further rejected the argument that the district court should have given an “entrapment by estoppel” defense jury instruction. Entrapment by estoppel occurs when a defendant reasonably relies on an official’s approval of the conduct at issue. Here, at no point did an official communicate to a defendant that his conduct was in compliance with the law.

Wednesday, February 01, 2017

Scheels: Enhancement for sadistic conduct

In U.S. v. Scheels, No. 15-15405 (Jan. 31, 2017), the Court rejected the argument that the four level enhancement of U.S.S.G. § 2G2.1(b)(4) for an offense involving material that portrays sadistic or masochistic conduct should not apply when the sadistic or masochistic conduct in the pornography was directed at the defendant, not at the child victim. The Court pointed out that the Guideline covered conduct that “involved” sadistic or masochistic conduct, not that the conduct be directed at the victim. The Court noted past cases involving conduct directed at the victim, but found that these cases merely hold that conduct directed toward a child is sufficient to warrant the enhancement, not that it is necessary. The Court affirmed the 600-month sentence.