Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, October 21, 2020

Grow: Affirming Healthcare Fraud Convictions but Vacating Dual-Object Conspiracy Sentence

In United States v. Grow, No. 18-11809 (Oct. 21, 2020) (Luck, Ed Carnes, Marcus) (per curiam), the Court affirmed the defendant’s convictions but vacated his sentence.

First, the Court that the evidence was sufficient to support convictions for conspiracy to commit healthcare and wire fraud, substantive healthcare fraud, paying and receiving illegal kickbacks, and money laundering.

Second, the Court rejected that the defendant’s argument that a district court’s jury instruction was coercive.  On Friday, the court told the jury that it had another trial starting on Monday, and that the jury could reach a partial verdict.  However, the court told the jury that there was no time limit on its deliberations, and the jury did in fact continue deliberating into Monday and ultimately did not return a partial verdict.

Third, the Court found that the defendant invited any error with regard to the district court’s failure to instruct the jury on wire fraud, one of the objects of the conspiracy.  The defendant not only agreed with the court’s proposed instructions, but his own proposed instructions omitted any instruction on wire fraud.

Finally, the Court vacated the 20-year sentence for the conspiracy count.  Although that sentence was below the statutory maximum for the wire fraud object, it exceeded the ten-year statutory maximum for the healthcare fraud object.  And because the jury returned a general verdict, and was instructed it could find the defendant guilty if it found him guilty on either or both of the objects of the conspiracy, the Court could not discern the object(s) for which the jury found him guilty.  Following circuit precedent, the Court vacated the sentence and remanded for the government to either consent to a sentence based on the ten-year maximum or retry the defendant with a special verdict.

Friday, October 09, 2020

Iriele: Lay Expert Can Testify About Handwriting Learned During Course of Criminal Investigation

In United States v. Iriele, No. 17-13455 (Oct. 9, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the pharmacist defendant’s convictions stemming from the illegal dispensation of prescription medications.

On appeal, the defendant raised 15 claims of error.  However, the Court addressed only  a few of them because the remainder did not warrant discussion.  The Court “remind[ed] counsel that raising a plethora of issues is not good advocacy.”

First, the defendant challenged the admission of testimony by a non-expert law enforcement agent who investigated the defendant’s schemes and told the jury that a ledger contained the defendant’s handwriting.  The Court upheld the admission of that testimony under Rule 901(b)(2).  Joining every circuit to address the issue, the Court concluded that a lay witness cannot become familiar with someone’s handwriting when he does so solely for the purpose of identifying it at trial; that is the role of an expert.  But a lay witness can become familiar with handwriting during the course of a criminal investigation, even if he later testifies about it at trial.

Second, the Court found the evidence sufficient to support the defendant’s drug conspiracy, drug distribution, and money-laundering convictions.  As to the drug convictions, the Court concluded that sufficient circumstantial evidence established that the defendant personally knew that doctors conspired to issue prescriptions without a legitimate medical purpose, and that he voluntarily joined that conspiracy by filling prescriptions.  The Court also found the evidence sufficient to establish that the defendant conspired to commit promotional money laundering.

Third, and reviewing for plain error, the Court found no reversible error with respect two jury instructions.  On the drug counts, the district court plainly erred by failing to instruct the jury that the pharmacist must know that the doctor issued the prescription without a legitimate medical purpose.  But the defendant could not show prejudice because the evidence was overwhelming in that regard.  On the money-laundering conspiracy count, the court failed to expressly set out the elements of the offense, but the instructions as a whole sufficiently conveyed them.  And although the court did not convey everything to the jury about financial transaction money laundering, he could not show prejudice due to overwhelming evidence of guilt on an omitted element.

Gallardo: Upholding Cocaine Conspiracy Conviction Over Multiple Challenges

In United States v. Gallardo, No. 18-11812 (Oct. 9, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine.

First, the Court found no abuse of discretion in denying a mistrial based on an agent’s false rebuttal testimony because the defendant did not meet his burden to show prejudice.  The district court gave a curative instruction, and the agent’s testimony only hurt his own credibility.

Second, there was no error in denying a motion for a new trial on the ground that the weight of the evidence established that the conspiracy involved only one kilogram of cocaine rather than five kilograms.  The Court found ample evidence that, although the confidential source was the one pushing for a five-to-seven kilogram deal, the defendant agreed to sell that amount, even though he was caught with only one kilogram of cocaine.

Third, applying plain error, the Court found no Brady violation with respect to the government’s belated disclosure that the confidential source had been deactivated due to self-dealing.  The defendant could not show a reasonable probability that he would have been acquitted, as the defendant used that evidence in his defense to his advantage.   And there was no Giglio violation because evidence of the source’s deactivation did not reveal any false trial testimony.

Fourth, and again applying plain error, the Court found that the district court did not err by failing to sua sponte grant a new trial based on alleged sentencing entrapment or sentencing factor manipulation due to the confidential source’s repeated requests for more than the one kilogram to which the defendant was predisposed.  The Eleventh Circuit does not recognize sentencing entrapment as a viable defense.  And his sentencing manipulation claim failed because the remedy was merely a lower sentence, not a new trial; the Eleventh Circuit has consistently rejected such claims based on the government’s decision to involve a large quantity of drugs in its sting operation; and, in any event, the defendant was a willing participant in the larger conspiracy.

Gayden: Upholding Prescription Drug Convictions Over Multiple Challenges

 In United States v. Gayden, No. 18-14182 (Oct. 9, 2020) (Tallman (CA9), Martin, Rosenbaum), the Court affirmed the defendant’s convictions and sentence for unlawfully distributing prescription drugs.

First, the Court found no abuse of discretion related to the government’s pre-indictment delay because, even assuming that the defendant could show prejudice, he could not show that the government deliberately delayed to gain a tactical advantage.

Second, the Court upheld the denial of a motion to suppress.  Applying the third party doctrine, and rejecting the defendant’s reliance on the Supreme Court’s decision in Carpenter, the Court found that the defendant did not have a reasonable expectation in prescriptions he wrote for patients, and he voluntarily disclosed those records to others.

Third, the district court did not abuse its discretion by denying the defendant’s motion to exclude the government’s expert witness under Daubert.  Although the defendant argued that the expert was exposed to irrelevant and inflammatory information about the defendant before forming his opinion, the defendant was able to cross examine the expert.

Fourth, the Court found no procedural or substantive error with respect to the sentence.   As for procedural error, the Court found no ex post facto violation by considering his conduct before Florida law pertaining to the standard of care was amended because his conduct was prohibited both before and after the amendment; and an obstruction enhancement was appropriate because the defendant “updated” his records after a state search warrant (but before a federal search warrant) was executed.  Lastly, the Court found that his 235-month sentence was not substantively unreasonable.

Thursday, October 08, 2020

Bruce: Finding Reasonable Suspicion Based on an Anonymous 911 Tip

In United States v. Bruce, No. 18-10969 (Oct. 8, 2020) (Grant, Lagoa, Martin), the Court affirmed the denial of a motion to suppress.

First, the Court held that there was reasonable suspicion to stop the defendant.  An anonymous 911 call at 3am reported that men in a high-crime area were outside of a white car, one of them had a gun, and there might be a shooting any minute.  Officers arrived at the location and saw two men sitting in a car at the address.  Relying heavily on the Supreme Court’s decision in Navarette, the Court found that the tip was sufficiently reliable because it gave a first-hand contemporaneous account, and it supplied reasonable suspicion, even though the officers did not observe any criminal activity when they arrived at the scene.  The officers could have reasonably believed that the men in the car were the men being described by the tipster, they could have been hiding their dispute from the police, nothing the police observed undermined the tip, and the police were not required to watch and wait for a shooting to occur or risk their lives by approaching for a consensual encounter.

Second, the Court rejected the defendant’s argument that the police needed more than reasonable suspicion because the car was parked in the curtilage of a home.  Because that fact-specific argument was raised for the first time on appeal, and there was little information about the home or the defendant’s relationship to it, the defendant could not establish plain error.  The Court declined to remand for fact-finding, as doing so would undermine the plain-error doctrine.

Judge Martin dissented.  She agreed that the anonymous tip was sufficiently reliable, but she believed that any reasonable suspicion generated by the tip had dissipated when the officers arrived and merely saw two men sitting in a car with the dome light on.  She disagreed that an ongoing violent conflict was disguisable, and believed that the majority’s contrary conclusion was speculative.  She believed the officers should have observed the car and the occupants’ conduct, or should have conducted a consensual encounter.

Amede: Upholding Drug Conviction an Sentence Over Various Challenges

 In United States v. Amede, No. 18-11172 (Oct. 8, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for attempted possession with intent to distribute five kilograms of cocaine.

First, the Court upheld the denial of the defendant’s motion to exclude three recorded phone calls between a co-conspirator and undercover officer to arrange the drug deal.  The Court held that the statements were admissible under the co-conspirator hearsay exception, because they were made during the course and in furtherance of the conspiracy, even if the defendant had not joined the conspiracy until after the calls were made (though he already had).

 Second, the district court did not constructively amend the indictment by omitting “willfully” from the indictment's “knowingly and willfully” allegation.  The government was only required to prove that the defendant acted knowingly or intentionally, not willfully.  So the indictment’s inclusion of “willfully” was mere surplusage that the district court was free to omit.

 Third, the Court found the evidence sufficient to sustain the conviction because it established that the defendant acted knowingly and was attempting to possess cocaine with intent to distribute it.

Fourth, the Court held that the district court did not abuse its discretion by limiting cross-examination and the defendant’s own testimony regarding a duress defense.  There was no evidence that the defendant had no reasonable opportunity to escape or to inform the police that others were threatening his family or coercing him to do the drug deal.  His subjective belief alone that law enforcement would not have protected his family abroad was insufficient.  In any event, any error was harmless because the defense was still able to elicit testimony to support the duress defense.

Fifth, the Court found that, under the particular facts and circumstances, the defendant knowingly and voluntarily waived the right to counsel at sentencing after refusing to cooperate with his retained substitute counsel or his original court-appointed counsel.

Innocent: Affirming 922(g) Convictions Over Rehaif Challenge

 In United States v. Innocent & Jones, Nos. 19-10112, 18-15210 (Oct. 8, 2020) (William Pryor, Tjoflat, Hull), the Court affirmed 922(g) convictions over a Rehaif challenge.

Applying plain error review, the Court agreed that the defendants’ pre-Rehaif indictments were erroneous in light of Rehaif, and that error was now plain.  But the Court concluded that the defendants could not show a reasonable probability of a different result, because circumstantial evidence established that each knew of their felon status.  Although one defendant had never served more than a year in prison and had  a low intelligence score during a competency evaluation, that was not enough to meet his burden in light of his four prior felony convictions.  The other defendant admitted he was a felon at the time of arrest, had a prior felony conviction for being a felon in possession, had multiple prior felonies for which he served many years in prison, and immediately dropped the gun when the police approached.   The Court rejected the defendants’ arguments that plain error review should not apply at all.

 The Court also affirmed an ACCA enhancement based in part on Florida aggravated assault.  The defendant invited the error at sentencing by agreeing that this offense qualified as a violent felony.  And, in any event, he could not show plain error because circuit precedent foreclosed his argument.

Thursday, October 01, 2020

Abreu: Reversal for Insufficient Evidence Alone Does Not Establish Actual Innocence for Unjust Conviction Statute

 In United States v. Abreu, 18-13965 (Oct. 1, 2020) (Jordan, Newsom, Hall), the Court affirmed the denial of a petition for a certificate of innocence under the Unjust Conviction Statute.

 The Eleventh Circuit had previously reversed the petitioner’s fraud convictions for insufficient evidence.  However, the Court held that, even assuming such a reversal  (or an acquittal) could itself entitle a person to a certificate of innocence, the appellate decision did not demonstrate the petitioner’s actual innocence.  The Court held only that there was no direct or circumstantial evidence from which a jury could find guilty beyond a reasonable doubt.  And because the petitioner relied only on the appellate decision, without otherwise alleging or proving actual innocence, the district court did not abuse its discretion by denying the petition.

 Judge Newsom concurred in the judgment.  He opined that an appellate decision reversing for insufficient evidence, by itself, can never establish innocence under the actual-innocence prong of the the statute.

Wednesday, September 30, 2020

Conage: ACCA Case Certifying Question about "Purchasing" Trafficking Quantity to Florida Supreme Court

 In United States v. Conage, No. 17-13975 (Sept. 30, 2020) (Julie Carnes, Ed Carnes, Clevenger), the Court certified a question to the Florida Supreme Court about the Florida trafficking statute in 893.135.

 The question was whether cocaine trafficking under 893.135(1)(b)1 is a “serious drug offense” under the ACCA.  That Florida statute is indivisible, and it prohibits “purchasing” a trafficking quantity of drugs.  To satisfy the ACCA’s definition of a “serious drug offense,” the offense must “involve” certain acts, one of which is possession with intent to distribute.  Thus, the question was whether purchasing a trafficking quantity under 893.15 “involves” actual or constructive “possession” of the drug being purchased.  If not, then the statute is categorically overbroad, and it will never qualify as an ACCA predicate.  However, because Florida law did not specify the elements of trafficking by purchase, and did not otherwise define the term “purchase,” the Court certified that issue to the Florida Supreme Court.

Tuesday, September 29, 2020

Bolatete: Upholding Conviction for Possessing Unregistered Silencer Over Constitutional Challenges

 In United States v. Bolatete, No. 18-14184 (Sept. 29, 2020) (Ed Carnes, Branch, Luck), the Court affirmed the defendant’s conviction and sentence for possessing an unregistered silencer.

 First, the Court held that the National Firearms Act was constitutional under Congress’ taxing power.  It explained the binding circuit precedent foreclosed the defendant’s contrary arguments.

 Second, applying plain error review, the Court rejected the defendant’s argument that the Act imposes an unconstitutional tax because it imposes impermissible fees on the exercise of Second Amendment rights.  There was no decision addressing that argument, so any error was not plain.  For the same reason, the Court also found no plain error as to the defendant’s argument that the Act’s application to silencers violates the Second Amendment.

 Third, the Court found that there was sufficient evidence to support the jury’s finding that he was not entrapped.  Although the defendant initially told the undercover officer that he did not want a silencer, there were others facts that showed a predisposition to receive and possess an unregistered silencer.

 Fourth, as to sentencing, the Court found that any guideline error was harmless because the court said it would impose the same 60-month sentence anyway, and that upward variance was not substantively unreasonable. 

Wednesday, September 16, 2020

Boyd: Enforcing Sentence Appeal Waiver Where Defendant Challenged Calculation of Guidelines

 In United States v. Boyd, No. 18-11063 (Sept. 16, 2020) (Branch, Marcus, Huck), the Court granted the government’s motion to dismiss the appeal based on a sentence appeal waiver.

 The appeal waiver barred the defendant from appealing his sentence unless the court imposed a sentence “that exceeds the advisory guideline range.”  Although the court imposed a guideline sentence, the defendant argued that the waiver did not bar his argument challenging the calculation of the guideline range.  Rejecting the defendant’s argument that the waiver was ambiguous, the Court held that the “advisory guideline range” clearly referred to the range calculated by the district court.  The Court also found that, based on the record, the defendant knowingly and voluntarily agreed to the waiver.