Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 11, 2018

Guevara: Evidence Sufficient to Support Conviction for Causing Business to File False FinCEN Form, but Obstruction Sentencing Enhancement Not Sufficiently Supported

In United States v. Guevara, No. 15-14146 (July 11, 2018) (Robreno (E.D. Pa.), Tjoflat, Wilson), the Court upheld the defendant's conviction for causing or attempting to cause a sports car business to file a false FinCEN form with the IRS, but it remanded for reconsideration of whether a two-level sentencing enhancement for obstruction of justice was warranted.

The Court found that the evidence was sufficient to support the conviction.  Although the defendant never tried to persuade, influence, coax, or encourage the business to file a form containing misstatements, he knowingly caused the business to do so.  The defendant negotiated and paid for the vehicles with cash; he knew that the business would be required to complete a form as a result; he solicited his friend to act as a straw owner; and, as a result, the forms contained material misstatements about the identity of the owner.

The defendant also argued, for the first time on appeal, that the evidence was insufficient because the government failed to introduce either the original or certified copy of form submitted to the IRS, but instead introduced an IRS-prepared document summarizing the transactions.  The Court agreed that the failure to admit the IRS form was error under the best evidence rule in Federal Rule of Evidence 1002.  However, applying plain error, the Court concluded that this error did not affect the defendant's substantial rights or the fairness, integrity, or public reputation of the proceedings because, even without any evidence of a form containing the misstatements, the defendant still could have been convicted of attempting to cause the business to file a false form.

The Court, however, remanded for re-sentencing because the district court failed to make sufficient factual findings about how the defendant obstructed or impeded the investigation.  Instead, it made only vague and equivocal statements about his tax returns filed years before the offense, his use of a straw buyer, and his false statements that did not actually impede the investigation.  And the record did not clearly reflect how those statements supported the obstruction enhancement.  Accordingly, the Court vacated the sentence and remanded to allow the district court reconsider the obstruction enhancement and support it with factual findings.

Friday, June 29, 2018

Morales: Consent to Search by a Co-Occupant Was Valid Where Co-Occupant Defendant Was Nearby and Failed to Object

In United States v. Morales, No. 16-16507 (June 29, 2018) (Ed Carnes, Marcus, Ross), the Court upheld the defendant's felon in possession conviction and sentence.

First, the Court upheld the denial of the defendant's motion to suppress a warrantless search of the home based on the consent of a co-occupant.  The Court determined that the consent was voluntary because the two officers did not threaten or intimidate her, she was not restrained, she fully cooperated, and they explained that she had the right to refuse consent.  The Court then rejected the defendant's argument that her consent was invalid because the officers intentionally declined to ask him, a physically present co-occupant, for consent.  The Court emphasized that the defendant did not object, even though he was not far away from the door, and there was no evidence that the officers intentionally removed him from the area so that he could not refuse consent.  And the officers were not required to ask him whether he objected where the co-occupant consented.

Second, the Court found that the evidence was sufficient to support the conviction.  The defendnat admitted that he found the guns, brought them into the home, and placed them in the bag where they were found.  The Court rejected the defendant's argument that his confession was not sufficiently corroborated by other evidence, including the guns, ammunition, bag, and testimony of the searching officer.

Third, and finally, the Court rejected the defendant's argument that his ACCA sentence violated the Eighth Amendment.  That argument was foreclosed by precedent, and the defendant's "out-of-the-blue" argument that the prior precedent rule does not apply to sentencing issues was "without any support in the law."

Thursday, June 28, 2018

Henderson: Upholding False-Statement Convictions by VA Employee

In United States v. Henderson, No. 16-16984 (June 27, 2018) (Ripple, Rosenbaum, Jill Pryor), the Court upheld the convictions and sentence for making false statements by a VA employee in connection with the delivery and payment of healthcare services.

First, and reviewing for plain error, the Court rejected the defendant's argument that the government failed to prove that the false statements were "material."  The Court found that the statements, even if ambiguous, had a natural tendency of influencing the decision-making body, because they could have misled a medical professional about whether the health care services had actually be rendered by the VA contractor.  Second, the Court concluded that the government sufficiently established the defendant's statements were made knowingly and willfully because, despite claiming to be informed that the patients had actually received medical services, the government presented evidence at trial to refute that claim.  Similarly, the government presented sufficient evidence to refute his claim that he lacked the requisite mens rea by closing consults only from earlier fiscal years.

Second, the Court upheld the defendant's conviction for making false statements to federal investigators during an interview.  The Court found the evidence sufficient with regard to his mens rea because the statement he made to investigators was inconsistent with other evidence.  And the Court found the evidence sufficient with regard to the materiality of his statement because, regardless of whether the agents already knew the truth or were actually misled, it had the tendency of influencing the government's investigation.

Third, and finally, the Court upheld the application of the enhancement in USSG 2B1.1(b)(15)(A) for the "conscious or reckless risk of death or serious bodily injury."  The government presented evidence showing that the false statements could have delayed and influenced patient care, and the government did not need to show actual evidence of death or serious bodily injury.  Moreover, the fact that the defendant initially refused to participate in the project, coupled with his eventual acquiescence, demonstrated his awareness of the risks posed by his conduct.  Moreover, one of the defendant's arguments was made in a Rule 35 proceeding after the notice of appeal had been filed, and the Court lacked jurisdiction to consider it because he did not amend his notice of appeal.  Finally, it was irrelevant that the probation officer disagreed with applying the enhancement.

Suarez: Upholding ISIS-Related Material Support Convictions and LWOP Sentence

In United States v. Suarez, No. 17-11906 (June 27, 2018) (Wilson, Ed Carnes, Jordan), the Court affirmed both the defendant's convictions for attempting to use a WMD and to provide material support to ISIS, and his life without parole sentence.

The Court concluded that the evidence was sufficient to support his convictions.  As for attempting to use a WMD, the Court rejected the defendant's argument that the government was required to prove a "substantial effect" on interstate commerce.  Instead, the Court concluded that, because this element went only to jurisdiction, the government was required to prove only a minimal effect on interstate commerce.  And the government met that low bar because a witness testified about how a terrorist attack would have affected tourism.  As for attempting to provide material support to ISIS, the Court found the evidence sufficient even though the defendant coordinated only with government informants and undercover officers, because he had the requisite intent to coordinate with and direct his services to ISIS, and he took substantial steps to do so.

As for the sentence, the Court first found no plain Eighth Amendment error.  The defendant was 24 years old, not a juvenile, and attempted to kill as many people as possible by detonating a bomb.  The Court next found no plain error with respect to the guideline calculations, rejecting the defendant's double-counting argument.  The fact that the base offense level and a "terrorism" enhancement were triggered by the same conduct did not constitute double-counting, because the two guidelines served different sentencing considerations and harms: one addressed the attempted use of dangerous materials with intent to injure the US or to aid a foreign entity, while the other addressed actions intended to influence or affect the government through intimidation or coercion.  Finally, the Court found the guideline sentence of life to be substantively reasonable, emphasizing that the district court properly considered what would have happened had the attempt offenses been completed.

Wednesday, June 27, 2018

Noel: Upholding Convictions for Extraterritorial Hostage Taking of an American Citizen

In United States v. Noel, No. 17-10529 (June 26, 2018) (Anderson, Marcus, Hull), the Court upheld convictions for hostage taking of an American citizen by a Haitian national in Haiti.

First, the Court held that the government was not required to prove that the defendant knew that the victim was an American citizen.  The Court reasoned that the victim's citizenship status was purely jurisdictional, and no mens rea is necessary for jurisdictional facts where the statute is otherwise silent.

Second, the Court rejected the defendant's argument that the statute was limited to crimes of terrorism.  The Court concluded that the plain language of the statute encompassed the defendant's conduct because he seized, detained, threatened to kill, and demanded ransom for the release of the hostage, who was an American citizen.  While the statute was focused primarily on terrorism and crimes involving governmental organizations, the plain language encompassed kidnapping and ransom demands with regard to private parties.  The Court joined every other circuit to address that issue.

Third, and finally, the Court rejected the defendant's argument that the extraterritorial application of the statute to his case violated due process.  Congress expressly provided that the statute would apply extraterritorially where the hostage is an American.  The Court rejected the defendant's argument that Congress lacked the constitutional authority to criminalize non-terrorism conduct committed by a Haitian national entirely in Haiti.  The Court's precedent had previously held that, regardless of whether the statute could be justified by the offenses clause (incorporating the law of nations) or the commerce clause, it implemented an international treaty and was therefore justified by the necessary and proper clause.  Finally, the Court concluded that application of the statute in this case was not arbitrary or fundamentally unfair, because the treaty, signed both by the U.S. and Haiti, provided global notice that such conduct could be prosecuted in a U.S. court.  And, even assuming that something more than the treaty was required, the victim's U.S. citizenship reflected a significant national interest of the U.S. in protecting Americans abroad.

Wednesday, June 20, 2018

Cozzi: Officer Lacked Even Arguable Probable Cause to Arrest Where He Ignored Easily Verifiable Exculpatory Evidence

Although a civil rights case, the Court's Fourth Amendment probable cause analysis should apply in criminal cases.  The Court emphasized that the officer unreasonably disregarded easily verifiable exculpatory evidence before arresting the plaintiff--specifically, the officer was told that the perpetrator had multiple tattoos, but the officer did not check to see if the plaintiff had matching tattoos before arresting him.  In addition, the evidence connecting him to the crime was otherwise very weak.  The officer received two tips that the plaintiff resembled the perpetrator, but one was anonymous, the officer knew that there was at least one other person who resembled the perpetrator, and the fact that one of the tipster's accurately identified the plaintiff's address and vehicle showed only that the tipster knew the plaintiff, not that he committed the crime.  Furthermore, while the officer found a plastic bag of pills on the plaintiff, that evidence did not match the items that the perpetrator stole, the officer did not conduct further investigation of that evidence, and the officer' search did not reveal any evidence linking the plaintiff to the crime.  The Court found that it did not need to decide whether the weak evidence possessed by the officer was alone sufficient because, by failing to verify the exculpatory information (the tattoos) before arresting him, the officer lacked even arguable probable cause under the totality of the circumstances.

Tuesday, June 12, 2018

Cobena Duenas: Evidence was Sufficient to Support Knowledge of Counterfeit Currency

In United States v. Cobena Duenas, No. 17-10509 (June 11, 2018) (Marcus, Ed Carnes, Ebel), the Court affirmed the defendant's counterfeit currency convictions.

On appeal, the sole issue was whether there was sufficient evidence to establish that the defendant knew that the transaction involved counterfeit currency.  Viewing the evidence in the light most favorable to the government, the Court found the evidence sufficient.   The Court emphasized that the defendant had substantial contacts with the organizer of the transaction and thus had ample opportunity to discover the object of the transaction; the defendant knew that the transaction was unlawful in nature; the defendant was instrumental to the success of the transaction, since he was responsible for the exchange; and, under the "prudent smuggler" doctrine, a jury could infer that the organizer would not have entrusted the defendant to close a deal for over $600,000 in counterfeit currency without telling him the details.  The Court distinguished five of its earlier sufficiency cases upon which the defendant relied, emphasizing again that he played a critical role in the actual exchange (as opposed to being merely present), had substantial contact and conversations with the organizer of the transaction, and was vested with substantial trust by the organizer.  Because the defendant was not a mere bystander or peripheral player, the Court found that the evidence was sufficient.

Friday, June 08, 2018

McLean: Immigration Judges are "U.S. Judges" for purposes of Criminal Statute Prohibiting Interference with Federal Officials

In United States v. McLean, No. 17-10741 (June 8, 2018) (Jordan, Wilson, Higginbotham), the Court upheld the defendant's conviction for threatening to assault an immigration judge with the intent to interfere with that judge's performance of official duties.

The Court rejected the defendant's argument that an immigration judge was not a "United States judge" within the meaning of the statute of conviction.  Because the statute defined that term to include U.S. Magistrate Judges, that foreclosed the defendant's argument that it was limited to Article III judges.  And the Court rejected his additional argument that immigration judges did not qualify because they are appointed by the Attorney General and serve within the Executive branch, emphasizing that they function as "judicial officers."