Eleventh Circuit Court of Appeals - Published Opinions

Friday, August 18, 2017

Mathurin: No 8th Amendment Violation for 685-Month Sentence Imposed on a Juvenile

In United States v. Mathurin, No. 14-12239 (Aug. 18, 2017) (Julie Carnes, Wilson, Hall), the Court affirmed the defendant's conviction and 685-month sentence for multiple armed robbery and carjacking crimes committed while a juvenile.

As to the conviction, the Court first rejected the defendant's various suppression challenges, finding that: 1) there was probable cause to support the defendant's arrest; 2) because the defendant was advised that no promises or negotiations would be made in a meeting, statements made during that meeting were not made in the course of plea negotiations and thus were not inadmissible under Rule 410; 3) inculpatory statements made by the defendant after his arrest were voluntary, even though there was a delay in notifying his mother of his arrest, the waiver form he signed did not indicate he had a right to attorney prior to questioning, and he was questioned alone after he was appointed an attorney; and 4) there was no basis to suppress eyewitness identifications because there was no evidence to show that the procedure was unduly suggestive.

Second, the Court found that the district court properly dismissed the defendant's original indictment without prejudice under the Speedy Trial Act, because the defendant's offenses were extremely serious, the government did not intentionally delay the filing of the indictment, and the defendant would suffer only minimal prejudice from the delay.

Third, the Court found that the second indictment was not barred by the statute of limitations.  By statute, where an indictment is dismissed after the statute of limitations expires, the government may return a new indictment within six months of the dismissal.  Here, the second indictment was filed ten days after the dismissal.

Fourth, the Court found no reversible evidentiary error by allowing the prosecution to fully recount the robberies, including the involvement of a firearm, even though the defendant was acquitted of accompanying 924(c) counts during an earlier trial.  The Double Jeopardy Clause did not prohibit probative evidence that is otherwise admissible simply because it is related to criminal conduct for which the defendant has been acquitted.  The Court also found that there was no reversible prosecutorial misconduct at closing.

As to the sentence, the Court rejected the argument that the defendant's 685-month sentence violated the Eight Amendment under Graham v. Florida.  In a lengthy analysis, the Court assumed that Graham did apply to a term-of-years sentence exceeding one's life span, but then concluded that, factoring in good time credit, the defendant had an actuarial life expectancy that would precede his possible release date, even using the lower life-expectancy for African American males.  Thus, there was a possibility of release before expiration of his sentence.

The Court also rejected the defendant's argument that the sentence was vindictive, imposed as punishment for successfully appealing his initial conviction (for which he received a 492 month sentence), in violation of North Carolina v. Pearce.  The Court emphasized that the re-sentencing occurred before a different judge, and therefore Pearce's presumption of vindictiveness did not apply, and the defendant could not show actual vindictiveness.

Judge Wilson issued a one-sentence concurring opinion: "I concur in the result."

Oskamac: Upholding Government's Non-Disclosure of FISA-Related Materials

In United States v. Oskamac, No. 14-15205 (Aug. 18, 2017) (Hull, Marcus, Martin), the Court affirmed the defendant's terrorist-related convictions and 480-month sentence for attempting to use weapons of mass destruction against U.S. persons or property and possessing an unregistered firearm.

The defendant raised four arguments on appeal.  First, and primarily, he argued that the court erred by denying him access to certain FISA materials -- namely FISA applications, supporting documents, DOJ certifications, and resulting FISA Court orders -- in order to determine whether the searches and surveillance was legal.  After outlining the relevant statutory provisions, as well as the deferential "minimal scrutiny" standard of review for FISA certifications, the Court rejected the defendant's argument, which primarily sought access to the certifications.  The Court, like the district court, conducted an in camera and ex parte review of the undisclosed FISA materials and evidence, and concluded that all of the legal requirements were satisfied.  The Court concluded that the district court did not abuse its discretion by not disclosing those materials and evidence to the defense.

Second, the Court also rejected the defendant's related argument that denying him access to the FISA materials violated the Confrontation Clause.  Although the defendant did not raise the argument below, and devoted minimal space to it on appeal, the Court exercised its discretion to address and reject it.  In doing so, it found that the defendant received wide latitude to confront and cross examine witnesses, and his Confrontation Clause rights were not violated by his inability to look for potentially favorable evidence in pretrial discovery.  "The ability to cross-examine witnesses does not include the power to require the pretrial disclosure of all information that might be potentially useful in contradicting unfavorable testimony."

Third, the defendant argued that the prosecutor's misstatement during closing -- that the jury should not consider a lack of evidence (such as FBI reports and surveillance logs) -- prejudiced him and denied him due process.  The court rejected that argument because, although the prosecutor's statement was incorrect, the court mitigated the prejudice by curatively instructing the jury that reasonable doubt may arise from a lack of evidence.  And the Court found that the misstatement was both isolated and likely accidental.

Fourth, the defendant argued that the government engaged in sentencing factor manipulation because the government introduced machine guns and explosives to him.  After emphasizing the difficulty of establishing such manipulation, the Court found that the defendant, not the government, introduced the subject of weapons of mass destruction.  Alternatively, the Court rejected that argument under plain error review, since the defendant below had argued "sentencing entrapment" rather than "sentencing factor manipulation."

Judge Martin concurred in the judgment.  She agreed with the outcome, but briefly observed that the majority's standard on the FISA issue exceeded the facts of the case, which was limited to a challenge to the certifications.  She also noted that, because the defendant had abandoned his confrontation clause argument, she would not have addressed it.

Thursday, August 17, 2017

Rehaif: No Mens Rea Required as to Status Element of 922(g)

In United States v. Rehaif, No. 16-15860 (Aug. 17, 2017) (Dubina, Ed Carnes, William Pryor), the Court affirmed the defendant's conviction for possessing a firearm and ammunition while being unlawfully in the United States, in violation of 18 U.S.C. 922(g)(5)(A) and 924(a)(2).

On appeal, the defendant first argued that the government was required to prove not only that he knowingly possessed the firearm/ammunition, but also that he knew he was unlawfully in the United States.  In rejecting that argument, the Court relied heavily on 922(g)(1) precedents -- including an 11th circuit case from 1997 -- holding that the government does not need to prove that the defendant knew of his felon status.  Notably, it rejected the contrary conclusion reached in a concurring opinion by then-Judge Gorsuch.  The Court opined that there was no reason to treat felon status under 922(g)(1) differently than unlawful-presence status under 922(g)(5).  It therefore broadly held that "there is no mens rea requirement with respect to the status element of 922(g)."  The Court nonetheless noted that, although not alleged in that case,"there could be a mistake of fact defense."

Next, the defendant argued that he was "unlawfully" presented in the United States only when he was so adjudicated by an immigration officer.  As a matter of statutory construction, the court rejected that argument, finding that he was unlawfully in the United States the moment he violated the terms and conditions of his visa.  In that case, the defendant had remained in the United States under an F-1 non-immigrant student visa after he was no longer enrolled as a full-time student.

Tuesday, August 15, 2017

Martin: Denial of Motion Seeking Judicial Recommendation for BOP Placement Is Not an Appealable Order

In United States v. Martin, No. 16-17353 (August 15, 2017) (Wilson, Jordan, Rosenbaum) (per curiam), the Court held that an order denying a defendant's motion for a non-binding, judicial recommendation to BOP for placement in a residential re-entry center was not a final appealable order under 28 U.S.C. 1291.  In so holding, the Court followed the unanimous view of six other circuits.

Friday, August 04, 2017

Caraballo: District Courts Have Jurisdiction to Consider Successive 3582(c)(2) Motion Where Initial Motion Denied

In United States v. Caraballo-Martinez, No. 16-11772 (August 4, 2017) (Hull, Marcus, Clevenger), the Court affirmed the denial of the defendant's motion for a sentencing reduction under 18 U.S.C. 3582(c)(2).  The primary question on appeal was a threshold one: whether the district court had jurisdiction to entertain Caraballo's successive 3582(c)(2) motion.  Although he was eligible for a sentencing reduction based on Amendment 599, the district court had denied his initial 3582(c)(2) motion under the 3553(a) factors.  Caraballo then filed a renewed 3582(c)(2) motion based on the same Guideline.  On appeal, the Court held that, where the district court denies -- as opposed to grants -- the initial 3582(c)(2) motion and thus does not impose a different sentence, the court retains jurisdiction to consider a successive 3582(c)(2) motion based on the same Guideline.  The Court declined to address, and thus left open, whether there were non-jurisdictional prohibitions on such successive motions.  The Court nonetheless affirmed the denial of Caraballo's successive 3582(c)(2) motion, finding that the district court had sufficiently considered and weighed the 3553(a) factors.

Wednesday, August 02, 2017

Kevin Newsom

Yesterday the Senate confirmed Kevin Newsom of Alabama as the newest member of the Eleventh Circuit by a vote of 66-31.  His biography remains available at the link below.

https://www.bradley.com/people/n/newsom-kevin-c

Tuesday, August 01, 2017

Williams: Affirming MDLEA Convictions Where No Drugs Found

In United States v. Williams, et al., No. 15-15460 (August 1, 2017) (Jill Pryor, Jordan, Proctor), the Court affirmed the defendants' MDLEA drug convictions and one defendant's failure to heave to conviction, but found insufficient evidence to support the remaining defendants' convictions for aiding and abetting the failure to heave to.

The Court rejected the defendants' three evidentiary arguments.  First, it rejected the argument that the district court improperly admitted expert testimony regarding IoScan results reflecting traces of cocaine on the vessel.  The Court rejected the argument that, although the witness was an expert in operating IoScan machines, he was not an expert in interpreting its results; and it rejected the argument that the expert's testimony should have been excluded under Daubert or Rule 403 because it could not definitively answer every question about the presence of cocaine on the vessel.

Second, the Court rejected the argument that the district court improperly allowed Coast Guard officers to provide lay opinion testimony that objects jettisoned from the vessel resembled cocaine bales found in prior drug interdictions.  That observation was properly admitted as lay, rather than expert, testimony because it was based on the objects' appearance and size using an infrared system, and did not require scientific or technical knowledge.  The Court rejected the defendants' argument, based on Jayyousi, that opinions offered by law enforcement officers do not automatically become expert opinions simply because they involve knowledge that pre-existed the instant investigation.

Third, the Court rejected the argument that the district court improperly admitted a "zarpe," a Colombian document including the names of the defendants and their ports of call, as unauthenticated and containing hearsay.  The government introduced evidence that the zarpe was authentic under Rule 901.  And it did not contain hearsay because it was offered to demonstrate that it was a ruse, not accurate.

The Court found sufficient evidence to support the defendants' drug conspiracy convictions, despite the fact that no cocaine was found on the vessel or in the sea.  The Court relied on the following facts: they were traveling at night in rough waters on a known drug trafficking route; the vessel was traveling in the opposite direction of where the captain initially said it was going; there was no fishing equipment on the vessel, which was registered as a fishing vessel; the crew members were observed throwing objects overboard; the officers found gasoline, a known masking agent; and the vessel behaved erratically.  The Court found sufficient evidence that the contraband was in fact cocaine based on officers' testimony about prior cocaine interdictions in that same area, the size/shape of the bales thrown over, and the IoScan results.

The Court affirmed defendant Williams' conviction for failing to heave to, because he was the master of the vessel, which sped up and made erratic movements after hailed by the Coast Guard.  The Court, however, reversed the remaining defendants' convictions for aiding and abetting that violation, because there was no evidence that they intended to aid and abet Williams' failure to heave to; the fact that they jettisoned the packages was insufficient.

Friday, July 28, 2017

Hernandez: Coast Guard Certification Conclusive Proof of MDLEA Jurisdiction

In United States v. Hernandez, et al., No. 15-10810 (July 28, 2017) (Rogers (6th Cir.), Hull, Marcus), the Court upheld the defendants' drug-trafficking convictions under the MDLEA.

The primary issue on appeal was whether the vessel was subject to the jurisdiction of the United States as a vessel without nationality.  The Court concluded that it was because the Coast Guard's certification that Guatemala neither confirmed nor denied its registration was conclusive proof satisfying the jurisdictional requirement.  The Court found that the defendants could not look behind or challenge that certification, even where, as here, it turned out that the vessel was in fact registered in Guatemala, and the defendants claimed that the Coast Guard possessed information that would have easily led it to reach that conclusion.  The Court, in a lengthy discussion, reached that conclusion as a matter of both statutory construction and international law.  The Coast Guard's certification is conclusive proof, even if inaccurate or the product of bad faith, because the statute delegates such matters to the diplomatic branches.  Relatedly, the Court rejected the argument that, by the time Guatemala neither confirmed nor denied registration (making the vessel subject to US jurisdiction), the defendants were no longer committing the drug offense.

The Court also rejected several additional arguments by the defendants.  It found the evidence sufficient to support the convictions.  It found no reversible prosecutorial misconduct because, even though some remarks made during closing did "not reflect the high standards to which the Government should hold itself," they were not sufficiently prejudicial.  The Court found that the accidental destruction of the vessel and other items did not violate Brady or Arizona v. Youngblood.  The Court briefly rejected various hearsay-related arguments.  And the Court upheld sentencing enhancements for both acting as a captain, where the defendant identified himself as such and held a captain's license, and for recklessly creating a substantial risk of death, where the defendant engaged in aggressive maneuvering of the vessel.

Little: Constructive Possession of a CP Email Where Stored on the Server

In United States v. Little, No. 16-10664 (July 28, 2017) (Ed Carnes, William Pryor, Dubina), the Court affirmed a conviction and sentence for possessing and transporting child pornography.

As for the conviction, the defendant argued that venue was improper in Florida for his possession conviction, because he received an email with child pornography attached while he was in Texas and did not open that email while he was in Florida.  The Court rejected that argument for two reasons.  First, the Court found that the defendant unquestionably possessed a different email containing child pornography while in Florida, since he sent that email to someone else.  Even though that email was also the subject of the transportation count, that did not violate double jeopardy because possession and transportation have different elements.  Second, and in any event, the Court found that the defendant had constructive possession of the Texas email while he was in Florida, because he had the power to retrieve that email from the server, and he expressed an intention to do so by discussing trading child pornography.  Applying plain error, the Court also upheld the denial of a motion to sever the possession and transportation counts, emphasizing that they involved the same time-frame, same email account, and similar subject matter.

As for the sentence, the Court found that the district court did not err in applying the five-level enhancement for distributing child pornography with the expectation to receive a thing of value, pursuant to U.S.S.G. 2B2.2(b)(3)(B).  The Court found no clear error in finding that the evidence reflected an expectation of receiving child pornography, which was a thing of value.  The Court also upheld the two-level enhancement for using a computer in connection with the charged offense, pursuant to U.S.S.G. 2B2.2(b)(6).  The Court found that applying the enhancement did not result in impermissible double-counting, because his base-offense level did not fully account for his use of a computer.  Agreeing with five other circuits, the Court reasoned that, because not all transportation cases necessarily do require the use of a computer, that use was not fully reflected in the base-offense level for that count.