Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, January 09, 2018

Watkins: Illegal Re-entry Defendant Could Not Collaterally Challenge Underlying Deportation Order Where Judicial Review was Available

In United States v. Watkins, No. 16-17371 (Jan. 5, 2018) (Wilson, Rosenbaum, Titus) (per curiam), the Court affirmed the defendant's illegal re-entry conviction.

The defendant argued that she could not be charged with illegal re-entry, because her underlying deportation order was invalid on the ground that it was based on a grand theft conviction that no longer qualified as a crime of moral turpitude.  The Court rejected that argument on the ground that the defendant failed to meet the requirements for collaterally challenging an underlying deportation order.  Specifically, the Court found that the deportation proceedings did not deprive her of the opportunity for judicial review, because she could have sought to reopen her immigration proceeding.  And, although the legal basis of her collateral challenge did not arise until after the 90-day deadline to do so, equitable tolling applies to the 90-day deadline, the defendant sought equitable tolling in order to reopen her proceeding, and the BIA determined that equitable tolling was not appropriate in her case.  The defendant, moreover, did not seek judicial review of that denial.

The Court also found no reversible error during the defendant's bench trial.  It found no abuse of discretion in permitting the government to collect the defendant's fingerprints used to establish her identity.  And, while the district court "likely erred" in admitting the fingerprint analyst's expert testimony under Daubert as unreliable -- for failing to testify about her scientific methods -- that error was harmless, because an officer testified about the defendant's identity, and the defendant herself repeatedly admitted that she had previously been deported.

Friday, January 05, 2018

Morales-Alonso: Georgia Aggravated Assault is a Crime of Violence Under the Enumerated Offense Clause of the Guidelines

In United States v. Morales-Alonso, No. 16-14925 (Jan. 5, 2018) (Julie Carnes, Edmondson, Kathy Williams), the Court held that Georgia aggravated assault qualified as a "crime of violence" under the enumerated offense clause, which is contained in the commentary to U.S.S.G. 2L1.2 and enumerates "aggravated assault."

The Court determined that Georgia aggravated assault roughly corresponded to the generic version of aggravated assault, which the Court had previously defined in Palomino-Garcia as a criminal assault accompanied by either an intent to cause serious bodily injury or the use of a deadly weapon.  The Court initially found that Georgia's aggravated assault statute was divisible, and, using Shepard documents, determined that the defendant was convicted of aggravated assault by using a deadly weapon or other object/device/instrument that is likely to or actually does result in serious bodily injury when used offensively.  Although aggravated assault with a deadly weapon was generic, the defendant argued that the Georgia offense was overbroad because it could be committed with an object, device, or instrument.  The Court rejected that argument because the Georgia courts had made clear that the object/device/instrument must be used as a deadly weapon.  That sufficed because the deadly weapon, as used in the generic offense, could be dangerous due to the way in which it was used in a particular case.  Finally, the Court rejected the defendant's argument that Georgia's statute could be violated by the use of an object/device/instrumentality that just happened to cause serious bodily injury, such as a golfer accidentally hitting someone with his ball.  The Court found that such conduct would not violate the statute, and the defendant's hypothetical was not supported by any case law and represented "legal imagination" rather than a "realistic possibility."

Thursday, January 04, 2018

Foster: Rejecting Sufficiency, Loss Calculation, and Juror Misconduct Challenges to Uphold Wire Fraud Convictions and Sentence

In United States v. Foster, No. 15-14084 (Jan. 4, 2018) (Gilman, Jordan, Hull), the Court upheld the defendant's wire-fraud convictions and sentence.

First, the Court found sufficient evidence to support the convictions.  It found sufficient evidence that the defendant misrepresented the ownership of the land at the heart of the real-estate investment fraud, misrepresented purported news articles regarding the defendant's investment company, misrepresented that celebrities had purchased land through his company, and had the requisite criminal intent.

Second, the Court concluded that the district court correctly determined the loss amount for purposes of both his guideline range and restitution.  The Court rejected the defendant's argument that the value of the land should have been subtracted from the $8 million total loss figure because, even if the investors acquired a proprietary interest in the land, it was worthless as a practical matter, since they did not and likely could not obtain title to it.  The Court also refused to credit the value of the land on the ground that a fraudster is not entitled to an offset for value provided solely to conceal or perpetrate a fraud.

Third, the Court concluded that the defendant's sentence was procedurally and substantively reasonable. Aside from the sufficiency of the evidence and loss calculation, the defendant raised no additional procedural challenges.  And the Court found the 152-month sentence--imposed in the middle of the guideline range--to be substantively reasonable.

Finally, the Court found no error in the denial of the defendant's motion to vacate the verdict for juror misconduct in light of a post-trial letter, in which a juror stated that she had been bullied into the verdict and regretted her decision.  The defendant argued that he should have been permitted to question the juror under Rule 606(b)'s exception for extraneous prejudicial information improperly brought to the juror's attention.  The Court rejected that argument, reasoning that the juror's letter, referencing bullying and sway tactics during deliberations, pertained to purely internal (not extraneous) matters.  The Court further noted that the juror's letter described nothing more than typical features of juror deliberations.

Wednesday, January 03, 2018

Crabtree: No Double Jeopardy Violation in Medicare Conspiracy Where Defendants Acquitted at First Trial of Making False Statements

In United States v. Crabtree, No. 15-15146 (Jan. 3, 2018) (Wilson, Rosenbaum, Robreno), the Court upheld Medicare card fraud convictions and sentences.

First, the Court rejected the defendants' double jeopardy argument based on their acquittal at a first trial of making false statements.  The Court concluded that, because the false statement charges were limited to six particular therapy notes, the jury's acquittal on those charges did not necessarily include a finding that the defendants were not part of the broader conspiracy.  Double jeopardy therefore did not preclude the government from re-trying the defendants on the health care conspiracy charge (which resulted in a mistrial at the first trial).

Second, the Court found that overwhelming evidence existed to show that the defendants knew of object of the conspiracy and voluntarily joined it, given their numerous continuous acts in furtherance of the conspiracy over a number of years.

Third, the Court found no abuse of discretion in permitting the admission of testimony regarding Medicare coverage determinations, since it was relevant to the government's theory of motive, and the court issued a limiting instruction.  The Court no found abuse of discretion in permitting trial testimony about illegal kickbacks, since it was relevant one of the defendant's knowledge and involvement in the conspiracy.  And the Court found that, while it may have been error to have permitted expert testimony that one of the defendants may have violated a different law, any error was harmless given a limiting instruction and overwhelming evidence against the defendant.

Fourth, the Court found no abuse of discretion in the district court's dismissal and replacement of a juror who was repeatedly tardy.

Fifth, as to jury instructions, the Court found that any error giving the deliberate ignorance instruction was harmless because the court also instructed the jury on actual knowledge, and the jury could have convicted on such a theory.  The Court also rejected a defendant's challenge to an aiding and abetting instruction, as that instruction was not given in connection with the conspiracy charge.

Finally, the Court upheld two sentencing enhancements as to one of the defendants.  The Court found that a four-level enhancement for being an organizer/leader was warranted because he was the manager of the business, directed certain actions by his subordinates, authorized them to use his signature, and profited greatly from the conspiracy.  The Court also found that the vulnerable-victim enhancement was appropriate because the company served elderly patients with acute mental illness, and the defendant failed to properly treat them by signing whatever documents were put in front of him without regard to their medical needs.

Thursday, December 21, 2017

Oscar: No Abuse of Discretion in Seating Alternate Jurors After Deliberations Began

In United States v. Oscar, No. 14-14584 (Dec. 20, 2017) (Hull, Jordan, Boggs), the Court affirmed two defendant's drugs/firearm convictions but vacated one of their ACCA sentences.

First, the Court concluded that the district court's answer to a jury note misstated the law of possession by allowing the jury to convict him of constructive or joint possession without having knowledge of the firearm.  The district court's initial instruction accurately explained the law of actual/constructive possession, and the supplemental instruction must be viewed in context.  Furthermore, the court's instruction of constructive possession -- as when the defendant has both the power and intention to take control of the firearm -- did not remove the knowledge requirement, because a defendant must necessarily have knowledge of a firearm in order to have an intention to take control over it later.

Second, the Court rejected a defendant's argument that the government committed prosecutorial misconduct by introducing evidence that another drug dealer was deceased.  That fact was relevant, the Court concluded, to explain why he was not charged or testifying at trial, even though he facilitated all of the defendants' crimes.  And any prejudice was mitigated by a curative instruction making clear that the defendants had nothing to do with the death.  The Court also found no misconduct by characterizing a defense witness as a liar given her inconsistent testimony.

Third, the Court rejected the defendants' arguments that the court erred in giving an Allen charge, dismissing a juror, and seating an alternate juror.  The Court found that the Allen charge was not coercive in substance because it was the pattern instruction; nor was its timing coercive, because it was given in response to a juror's comments indicating that the deliberations had stalled.  That the deliberations continued for several more days, and the jury ultimately acquitted one defendant of two counts, reflects its lack of coercive effect  The Court also found no abuse of discretion in dismissing a juror because, while courts should be cautious about doing so, this juror stated that she was biased, criticized the system, became emotional, and admitted that she could not follow the law.  Last, the Court concluded that the court did not err by replacing that juror with an alternate instead of allowing deliberations to proceed with 11 jurors.  Although the jury had already been deliberating for two days, and substitution after deliberations is not favored, the Court concluded that there was no abuse of discretion in light of the court's initial instructions and post-substitution instruction to begin deliberations anew.  In addition, the newly constituted jury deliberated for nine more hours and acquitted a defendant of two counts, reflecting a proper deliberation, and the court actually substituted two alternate jurors which theoretically may have decreased the chances of conviction.

Fourth, the Court found no abuse of discretion in denying one defendant's motion to sever because all the defendants shared a criminal network, and any potential spillover effect regarding drug crimes was mitigated by the court's two cautionary instructions, and the undercover agent's testimony that this defendant did not try to sell him drugs.  And the fact that the jury convicted one defendant of some crimes but not others reflects the jury's individual examination of each crime.

Finally, the Court vacated one of the defendant's ACCA sentence because it was based on Florida burglary, which is not a violent felony under circuit precedent.

Tuesday, December 19, 2017

Castaneda-Pozo: Upholding Substantial Financial Hardship Enhancement Where Bank Fraud Made Victims Insecure in Basic Life Necessities

In United States v. Castaneda-Pozo, No. 16-16031 (Dec. 19, 2017) (per curiam), the Court upheld two challenged sentencing enhancements in a bank fraud conspiracy.

First, the Court concluded that the district court did not clearly err by finding that the defendant was responsible for the scheme's entire intended loss amount.  The defendant testified that he was not aware of the scheme's relevant conduct, but the district court credited the contrary testimony of his co-conspirators.  Even though those co-conspirators had previously lied to investigators, the district court was free to credit their testimony over the defendant's.

Second, the Court concluded that the district court did not clearly err by finding that five or more victims of the scheme suffered substantial hardship under Amendment 792.  Although the Court had never before interpreted that provision, it relied on opinions from the Seventh and Eighth Circuits focusing on the economic situation of the victim.  In this case, several of the victims were required to repay $400-800 in rent payments, and because the stolen checks were submitted near the rent deadline, some of the victims had to borrow money to pay the rent and two were threatened with eviction.  The Court disagreed with the defendant that this amount to mere "hardship" rather than "substantial hardship."  Although each victim's economic loss might not seem great, the defendant's actions made them insecure in life's basic necessities, which constituted substantial hardship.

Friday, December 15, 2017

Johnson: District Courts Must Consider 3553(a) Factors When Denying Motions for Early Termination of Supervised Release

In United States v. Johnson, No. 17-12577 (Dec. 15, 2017) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court concluded that the district court abused its discretion by summarily denying the defendant's motion for early termination of supervised release under 18 U.S.C. 3583(e)(1).

Relying on its 3582(c)(2) precedents, the Court made clear that the district court must consider the relevant 3553(a) factors when denying a 3583(e)(1) motion, and the record must reflect that the district court actually considered those factors in order to permit meaningful appellate review.  In that case, the Court concluded that the record was devoid of any such consideration, because the court summarily denied the motion without explanation.  In the motion, he explained that, after obtaining Johnson relief, he had over-served by 11 years and had successfully re-integrated himself into the community in the year since his release.  The Court rejected the government's speculative argument that the district court implicitly considered the factors because it had presided over the defendant's trial/sentencing more than 20 years earlier.  Nor could any such consideration be inferred from the defendant's 3583(e)(1) motion, because it made no mention of the factors and the government was not ordered to respond.  Accordingly, the Court found an abuse of discretion, and vacated and remanded for further consideration.