Eleventh Circuit Court of Appeals - Published Opinions

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].

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.