Eleventh Circuit Court of Appeals - Published Opinions

Friday, May 26, 2017

Jockisch: Jury Unanimity Not Required for Underlying State Offense in Attempted Enticement Prosecution

In United States v. Jockisch, No. 14-13577 (May 26, 2017) (Julie Carnes, Jordan, Robreno), the defendant was charged under 18 U.S.C. 2422(b) with attempting to persuade a 15-year old minor to engage in sexual activity that, if consummated, would have violated Alabama law.  The indictment listed three Alabama statutes that the defendant could have been charged with had that sexual activity occurred: second-degree rape, second degree sodomy, and second degree sexual abuse.  The Court rejected the defendant's argument that the jury was required to unanimously agree as to which Alabama offense the sexual activity would have violated.  Finding these to be means rather than elements of the offense, and distinguishing the Supreme Court's decision in Richardson, the Court held that the jury need unanimously agree only that the sexual activity being enticed would have violated at least one of the listed Alabama statutes had it been carried out.  Alternatively, the Court held that the jurors were necessarily unanimous that the defendant could have been charged with second degree sexual abuse.

Judge Jordan concurred in the judgment, disagreeing with the majority's analysis.  Agreeing with a contrary decision from the Seventh Circuit, he would have required the jury to unanimously agree on the underlying state offense.  He concurred because he believed that the error in this case was harmless.

Doyle: Prejudice Presumed for Allocution Errors Notwithstanding Low-End Sentence

In United States v. Doyle, No. 14-12181 (May 25, 2017) (Ed Carnes, Jill Pryor, Ripple), the Court addressed whether the presumption of prejudice governing allocution errors applies where the defendant is sentenced at the low-end of the advisory guideline range.  The Court held that it does.

There is a general presumption of prejudice for purposes of the third plain-error prong where a defendant is not afforded the opportunity to allocute at sentencing.  In pre-Booker cases, however, the Court had carved out an exception where the defendant received a sentence at the low end of the then-mandatory guideline range.  The reason: there was virtually no possibility that the defendant could have received a lower sentence.

In Doyle, the Court held that this exception to the presumption of prejudice did not apply to post-Booker advisory cases.  Even if the defendant is sentenced at the low end of the guideline range, there is a still a possibility that he could receive a lower sentence by virtue of a downward variance (provided he is not sentenced at the statutory minimum).  Accordingly, even though Doyle received a sentence at the low end of the guideline range, and he failed to object to the court's failure to afford him the opportunity to allocute, there was a presumption of prejudice (and the other plain-error prongs were satisfied).  The Court therefore vacated the sentence, remanding for the limited purpose of allocution and for the court to consider any post-sentencing rehabilitation in its discretion.

Tuesday, May 02, 2017

Shalhoub: Denial of fugitive challenge not immediately appealable

In U.S. v. Shalhoub, No. 16-10533 (April 28, 2017), the Court held that the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive is not an immediately appealable collateral order. The Court noted that the only orders that are immediately appealable are those where the right would be destroyed if it were not vindicated before trial. The Court found that Shalhoub’s motion was not asserting “a right not to be tried,” the usual prerequisite for an immediately appealable order.” The Court also rejected Shalhoub’s request for a writ of mandamus to order the district court to rule on his motion for dismissal of the indictment. “That [Shalhoub] does not want to submit himself to the jurisdiction of the federal courts does not make the legal remedies available to challenge his indictment inadequate.”

Doran: FSU organization did not receive federal funds

In U.S. v. Doran, No. 16-10927 (April 26, 2017), the Court reversed a conviction for embezzlement in violation of 18 U.S.C. § 666, holding that the organization that was the victim of Doran’s scheme, the non-profit Student Investment Fund established by Florida State University for educational purposes, was not a recipient of federal funds, and § 666 therefore was not violated. The Court found that the non-profit organization was not an “alter ego” of FSU. [Jill Pryor, J., concurring, would have held that the government failed to put on sufficient specific proof that FSU received over $10,000 in federal funds, and that § 666 therefore was not violated].

Monday, May 01, 2017

Collins: bank gratuity offense is "offense against property"

In U.S. v. Collins, No. 15-12805 (April 26, 2017), the Court held that for restitution purposes, a defendant guilty of conspiracy to accept gratuities with the intend to influence a bank transaction has committed an “offense against property,” and is therefore subject to mandatory restitution –here, in the amount of $251,860.31. The Court stated that restitution does not apply to offenses “with only incidental property loss.” The Court held that it would not apply a “categorical approach” to determine whether an offense qualified as one “against property,” but would focus on the conduct underlying the offense of conviction. Here, Collins “sought to derive an unlawful benefit from the property at play in the bank transactions she corruptly facilitated.” Her offense therefore qualified as one “against property.”

Hastie: Personal information includes email address

In U.S. v. Hastie, No. 15-14481 (April 25, 2017), the Court held that the term “personal information” in 18 U.S.C. § 2721, which prohibits the disclosure of personal information obtained by a state department of motor vehicles, includes email addresses. The Court noted the “similarity” between email addresses and the non-exhaustive list of examples of personal information in the statute, which includes an individual’s photograph, driver identification number and address. [Jordan, J., dissenting, argued that whether an email address qualifies as “personal information” was a factual question that should have been left for the jury to decide].

Thursday, April 27, 2017

Roy: Counsel's absence from courtroom is not structural error

In U.S. v. Roy, No. 12-15093 (April 26, 2017), the Court (en banc) (8-3) in a 281-page opinion held that harmless error, not structural error, applied to determine whether defense counsel’s absence from the courtroom during the questioning of a prosecution witness at trial was reversible error. The Court recognized that in Cronic, the Supreme Court held that structural error occurs when a criminal defendant has been denied the assistance of counsel at a critical stage of the trial. But defense counsel “was present during 99.6 percent of Roy’s trial, and he vigorously represented Roy.” The Court reasoned that the 18 questions and answers that Roy’s counsel missed were not a “stage” or “critical stage” of a trial, because they did not constitute a separate step in the trial process, or a discrete phase of it. The Court also noted that it was able to make a prejudice analysis because it knew the precise questions and answers that defense counsel missed out on. The Court concluded that the error caused by counsel’s absence was harmless as to the single attempted child enticement charge, noting that in addition to the six images of child pornography mentioned during counsel’s absence, “the jury was presented with overwhelming and irrefutable evidence of Roy’s sexual interest in minor girls.” As to the counts of possession of child pornography, the evidence was also “overwhelming.”

Friday, April 21, 2017

Davis: Prosecution for witness tampering not multiplicitous

In U.S. v. Davis, No. 15-13241 (April 20, 2017), the Court affirmed the convictions of a defendant charged with being a felon in possession of a firearm, and with witness tampering and obstruction of justice in violation of 18 U.S.C. §§ 1512(b)(1) & 1503. The Court rejected Davis’ argument that the witness tampering and obstruction charges were multiplicitous because Congress did not intend for cumulative prosecution under §§ 1512 and 1503. The Court acknowledged that the Second Circuit had held that Congress intended for witness tampering to be prosecuted only under § 1512, but noted that the majority of circuits disagreed with the Second Circuit. The Court also noted that a prosecution under § 1503 involves interference with the due administration of justice, while a violation of § 1512 does not require a “pending judicial proceeding.” The Court rejected Davis’ argument that a prosecution under § 1512 for witness tampering involves an “implicit requirement” of a pending judicial proceeding, holding that so long as two offenses involve different elements, a court need look no further in determining that the prosecution of both offenses does not offend Double Jeopardy.

Friday, April 14, 2017

Gonzalez-Murillo: Remand for 3582 resentencing

In U.S. v. Gonzalez-Murillo, No. 16-11464 (April 4, 2017), the Court held that when it was unclear whether, at the original sentencing, the district court, under USSG § 5G1.3(b)(1), gave the defendant credit for 13 months he served in state custody for a term of incarceration that was undischarged at the time of the federal sentencing, the Court remanded for resentencing pursuant to a subsequently amended Guideline, pursuant to 18 U.S.C. § 3582(c)(2). The Court recognized that if the state custody was discharged, then any sentence reduction would have a discretionary departure, not subject to further reduction under § 3582(c)(2). But because the prior sentence might have not have been based on a departure, the Court remanded for resentencing.

Monzo: Affirming rejection of minor role reduction

In U.S. v. Monzo, No. 16-10222 (April 7, 2017), the Court rejected the argument that the district court erroneously failed to grant the defendant drug courier a “minor role” sentence reduction. The Court found that the district court did no erect any per se role for couriers in drug cases. The Court also rejected the argument that the district court erred in assigning three criminal history points for a prior Nevada drug-possession conviction, finding that Monzo was arrested on a probation violation, his probation was revoked, and he was sentenced to 12-30 months imprisonment. This 30-month sentence exceeded 13 months, the length of sentence sufficient to trigger three criminal history points.

Osman: Restitution for child pornography

In U.S. v. Osman, No. 14-14124 (April 12, 2017), the Court rejected a child pornography defendant’s challenge to a restitution order covering future therapy: “We are not dealing here with just the likelihood that a young child whose pornographic images are shared online will suffer residual effects from the reproduction of those images will need treatment. We are dealing with a child who was molested by her father, who will be informed of that fact, who will know that her father is absent from her life and suffering imprisonment based on that interaction. That is a heavy burden to place on a child. We cannot imagine that therapy will not be in order at the relevant times. Given the facts here, it seems that the need for future therapy is not just likely, but a virtual certainty.”

Pridgeon: Fla. Stat. 893.13 qualifies as controlled substance offense

In U.S. v. Pridgeon, No. 15-15739 (April 12, 2017), the Court affirmed the career offender sentence for a defendant convicted of methamphetamine trafficking. The Court rejected the argument that a Florida drug trafficking violation of Fla. Stat. § 893.13 fails to qualify as a “controlled substance offense” because the offense lacks the requisite mens rea with respect to the illicit nature of the substance. The Court pointed out that this argument was foreclosed by prior Circuit precedent.

Horner: Affirming tax fraud convictions

In U.S. v. Horner, No. 15-14675 (April 13, 2017), the Court rejected challenges to convictions for filing false tax returns. The Court rejected the argument that the government presented false testimony from an IRS agent. The testimony “was neither false nor misleading.” The Court also rejected the argument that the district court erroneously failed to give the jury the “good faith reliance” instruction that had been given in another case, pointing out that that this was not the “only acceptable instruction on good faith reliance.” The Court also rejected the argument that the district court erred in failing to instruct the jury on the “due diligence” obligations of tax preparers. The Court also rejected the argument that the district court erred in allowing the government to characterize the Horners’ cash deposits as “structuring.” “The evidence was highly probative in addressing the issue of the Horners’ financial savvy.” Finally, the Court rejected the argument that it was unfair to admit the defendants’ 2005 and 2006 tax returns. The Court found that these acts, though in earlier years, were part of the same set of actions through which the jury found the defendants committed tax fraud in 2007 and 2008.

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].