Eleventh Circuit Court of Appeals - Published Opinions
Thursday, May 29, 2014
Brown: Mere omission of an element of an offense does not render indictment jurisdictionally defective
In U.S. v. Brown, No. 13-10023 (May 28, 2014), the Court rejected the argument of a defendant who pled guilty to receiving counterfeit money orders that her conviction was invalid because the indictment failed to allege the “knowingly” mens rea element of the offense. The Court rejected the argument that the failure of an indictment to allege an essential element of an offense was a non-waivable, jurisdictional defect. The Court explained that an indictment is jurisdictionally defective only when, even accepting the factual allegations of the indictment as true, these allegations fail to state a violation of a statute. When this occurs, the indictment fails to allege a criminal offense against the laws of the United States. But an indictment’s mere omission of an element of an offense does not fail to invoke the district court’s subject matter jurisdiction.
In U.S. v. Flanders, No. 12-10995 (May 27, 2014), the Court affirmed convictions and life sentences for defendants charged with drugging victims and filming them in sex acts to distribute on the internet, in violation of sex trafficking statutes. The Court rejected challenges to the sufficiency of the evidence. The Court noted that the jury could conclude from the videos that the women were drugged and did not engage in sex acts voluntarily. In addition, a defendant benefitted from the scheme when he sold the videos. The Court rejected the argument that the prosecutor in closing argument improperly commented on the defendant’s silence, finding that instead the prosecutor said that the defendant lied to the police. The Court also rejected a challenge to the district court’s decision to close the doors of the courthouse during closing arguments. The Court pointed out that the doors were closed only during closing argument, and credited the district court’s explanation that it had to do so in order to limit distractions to the jury. Turning to the sentences, the court found error in the district court’s application of the wrong Guidelines in grouping the offenses, but the error did not affect the defendant’s substantial rights because the correct grouping calculation would have yielded the “exact same” result. The Court affirmed the district court’s imposition of an upward departure based on the “unusually heinous” nature of the crimes, pointing out that the defendants “filmed the sexual encounters and then distributed those videos in DVDs and over the Internet.”
Tuesday, May 27, 2014
In U.S. v. Mozie, No. 12-12538 (May 22, 2014), the Court affirmed the child sex trafficking convictions and life sentence imposed on Mozie. The Court rejected Mozie’s argument that the “reckless-disregard-of-the-victim’s age” standard of the child sex trafficking statute so lowered the standard of proof as to render the statute unconstitutionally vague. The Court pointed out that the term is a familiar legal concept. The Court rejected the argument that the district court constructively amended the indictment. The indictment charged that Mozie both knew and recklessly disregarded the fact that his victims were under 18 years old. The district court instructed the jury that it could convict Mozie if it found either that he knew the victims were under 18 or recklessly disregarded this fact. The Court reiterated the well-settled rule that no constructive amendment occurs when an indictment charges in the conjunctive and jury instructions charge in the disjunctive. Turning to the sentence, the Court rejected Mozie’s argument that his sentence was substantively unreasonable. “Simply stated, ‘sexual abuse is grossly intrusive in the lives of children and is harmful to their normal psychological, emotional, and sexual development in ways which no just or humane society can tolerate.’” (quoting Kennedy v. Louisiana, 554 U.S. 407, 468 (2008) (Alito, J., dissenting)). The Court also rejected Mozie’s Eighth Amendment challenge to his sentence, pointing to evidence that he struck and chocked one victim, and essential kidnapped others.
Friday, May 23, 2014
In U.S. v. Isaacson, No 11-14287 (May 22, 2014), the Court affirmed a conviction for securities fraud, but vacated the sentence. The Court rejected the argument that Isaacson’s conviction for violating 18 U.S.C. § 371 should be vacated because the investments were made through a hedge fund based in the British Virgin Islands. The Court pointed out that the conviction could stand even in light the presumption against extraterritorial application of a statute, because Isaacson’s office was in Florida and hte securities were sold on American markets. The Court also rejected a claimed Speedy Trial Act violation. Isaacson’s argue that the trial commenced more than 70-day deadline, based on the date in-court jury selection began. Rejecting this argument, the Court pointed out that potential jurors began filling out written questionnaires within the 70-day deadline. The Court held that absent evidence the trial court was manipulating the timing of written juror questionaires to skirt the Speedy Trial Act deadline, the jurors’ answers to written questionnaires would count as the commencement of trial for Speedy Trial Act purposes. Turning to the sentence, the Court noted that Isaacson participated in a fraud against auditors who were auditing a fraudulent investment fund. Isaacson did not participate in fraudulently convincing an investor, Morgan Stanley, to invest in the fund. The fact that Morgan Stanley made the investment before the auditors signed off on the financial reports of the fund indicates that Morgan Stanley “made its investment decision entirely independent of any audit reports.” Consequently, the loss attributable to Morgan Stanley’s investment, though part of the overall conspiracy, was not “reasonably foreseeable” to Isaacson for purposes of the Relevant Conduct guideline. The district court therefore erred in including this loss in the loss amount for Guideline enhancement purposes, and in the restitution amount as well. Finally, the Court rejected Isaacson’s Rule 33 motion for a new trial based on the prosecutor’s failure to disclose that his wife was a lawyer at the law firm representing an accomplice. The Court noted that the prosecutor’s wife had no financial interest in a good outcome for the accomplice, and therefore no grounds for recusal – and no reasonable probability the outcome would have been different had the alleged conflict of interest been disclosed.
Thursday, May 22, 2014
In U.S. v. Rodriguez, No. 10-12065 (May 15, 2015), the Court affirmed the conviction and sentence of a defendant convicted of mortgage fraud. The Court rejected the argument that Rodriguez was not competent when she pled guilty. The Court cited the plea colloquy which showed Rodriguez’ competency to understand her plea. Turning to sentencing issues, the Court rejected the argument that, on plain error review, that Rodriguez should not have been subject to an enhancement for an offense involving 10 or more victims, since only seven victims were entitled to restitution. The Court pointed out that the number of victims is not determined based on restitution. The Court also rejected the argument that Rodriguez was entitled to a minor role sentence reduction. The evidence demonstrated that Rodriguez “performed an essential role in the mortgage fraud scheme.” Turning to restitution, the Court found that Rodriguez herself was partly to blame for the delay in the district court’s entry of a restitution order, and could not, in any event, complain of the delay. The Court affirmed the district court’s calculation of the restitution amount.
Wednesday, May 21, 2014
In U.S. v. Esquenazi, No. 11-15331 (May 16, 2014), the Court affirmed convictions under the Foreign Corrupt Practices Act (FCPA) for conduct involving payments by a Florida company to Haitian officials of the Haitian telecommunications company owned by the Haitian government. The defendants claimed that the telephone company in Haiti did not qualify as an “instrumentality” of the Haitian government, and that the jury instructions were erroneous on the definition of an “instrumentality.” Rejecting this argument after a lengthy analysis, the Court concluded that the jury instructions were not erroneous. Further, the evidence was sufficient to show an “instrumentality” because the telephone company was a nationalized monopoly of Haiti, whose director was chosen by the Haitian President. The Court also rejected the argument that the defendants lacked the requisite “knowledge” that the recipient of their payments was a foreign official. The Court pointed out that they purchased a “political-risk insurance policy” in connections with their transactions, and knew that they were dealing with a state-sanctioned monopoly. The Court also rejected a Brady claim based on statements made by a Haitian official after the defendants were convicted. The Court pointed out that information known to an independent foreign government is not imputed to prosecutors in the United States simply because that government cooperates in the investigation. The Court also rejected the argument that the money-laundering count merged into the underlying bribery counts. The Court noted that funneling money through shell corporations was not necessary to the bribery, but just made it less likely that the conduct would be uncovered – the distinct conduct that the money laundering offense covers. On plain error review, the Court rejected the argument that the value of the “benefit received” should have measured by the amount of the bribe, not by the amount of the benefit to the defendant’s company. The Court found nothing in its caselaw to support this argument.
In U.S. v. Chahla, No. 13-12717 (May 21, 2014), the Court affirmed convictions of three brothers from Syria of unlawful procurement of United States citizenship or naturalization, and conspiracy. The Court rejected the argument that convictions for unlawful procurement of citizenship or naturalization could not stand because the false statements they made involved applications to become Lawful Permanent Residents, not for citizenship. The Court recognized that in some situations, such as a person who becomes a Lawful Permanent Resident but never applies for citizenship, or only does so many years after obtaining Lawful Permanent Residence, a false statement made in connection with Lawful Permanent Residence might not suffice to establish unlawful procurement of citizenship. But here the defendants sought to naturalize as soon as they were eligible. Consequently, their fraudulent statements (relating to the validity of their marriage to an American spouse) in their Lawful Permanent Resident applications were made with the intent to procure naturalization.
Thursday, May 15, 2014
In U.S. v. Harrell, No. 11-15680 (May 14, 2014), the Court affirmed the convictions and sentences for two Hobbs Act and two § 924(c) firearm offenses, for a defendant who was convicted by a jury after a trial; the Court reversed the conviction of another defendant who pled guilty, because the district court impermissibly participated in the parties’ plea negotiations. During repeated colloquies with the defendant, the district court contrasted the sentence the defendant would receive if he went to trial compared to the less severe sentence he would receive if he pled guilty. The defendant ultimately pled guilty based on the prosecutor’s agreement to a lesser sentence – the lesser sentence that the district court had proposed. The Court held that, under the recent decision in U.S. v. Davila, 133 S.Ct. 2139 (2013), the district court actions constituted “plain error.” The defendant arrived ready for trial, and the district court “shaped the more favorable plea agreement.” “We realize that the district court was acting in what it believed to be [the defendant’s] best interests, and was concerned about the lengthy sentence it would have to impose if [he] was found guilty by a jury. Nevertheless, there is no good motives exception to the bar on judicial participation in plea discussions.” The Court vacated the conviction, and remanded the case to a different district court judge, to give the defendant an opportunity to withdraw his plea. The Court agreed with the defendant who took the case to trial that it was error for the district court to allow a government agent to testify as an expert on communications by cell phone over cell phone towers, because the government failed to establish, by a preponderance of the evidence, that the agent was qualified to be an expert. The error, however, was harmless in light of the overwhelming evidence.
Tuesday, May 13, 2014
In Anderson v. Sec., Fla. Dep’t of Corrections, No 11-13921 (May 12, 2014), the Court affirmed the denial of a writ of habeas corpus to a Florida inmate sentenced to death for a 1999 murder. The Court rejected Anderson’s claim that his trial lawyer failed to conduct a reasonable investigation of mitigation evidence. The Court rejected the argument that trial counsel failed to investigate evidence of Anderson’s suffering sexual abuse as a child, pointing out that previously Anderson actively denied that such abuse had ever occurred. The Court found that Anderson’s counsel had conducted an extensive investigation in preparation for the guilt and penalty phase of the trial. The Court also found that Anderson had not established that the evidence of sexual abuse, had it been presented to the jury, would have prompted the jury to recommend a life sentence instead of death.
Wednesday, May 07, 2014
In U.S. v. Massam, No. 12-15924 (May 6, 2014), the Court held the loss amount calculated at sentencing for a defendant convicted of embezzlement is not reduced by any “credit” on account of moneys returned to a victim, because the loss was based on “intended loss,” not “actual loss.” The Court explained that the Guidelines define a “victim” as a person who sustained any part of the “actual loss.” “Actual loss” is defined a harm that resulted from the offense. A “victim” therefore does not exist when there is only intended loss. “A thief cannot return money that he never succeeded in stealing.”
Monday, May 05, 2014
In Henry v. Warden, No. 12-16552 (May 2, 2014) (2-1, Wilson, J. dissenting), the Court affirmed the denial of habeas relief to a Georgia death row inmate. The Court found that Henry had not established “cause and prejudice” for failing to raise an issue in the state courts – a claim that a holdout juror had been improperly removed from the jury. The Court found that Henry’s appellate counsel in state court acted in an objectively reasonable manner when he decided not to investigate the claim, and faulted Henry for failing to raise the issue adequately in his subsequent federal habeas proceedings.
Friday, May 02, 2014
In U.S. v. Parton, No. 13-12612 (April 30, 2014), the Court (Anderson; Ebel & Ungaro, bd.), rejected the argument that the Supreme Court’s recent decision in Nat’l Fed. of Independent Business v. Sebelius had effectively overruled prior Circuit precedent regarding how little of an interstate nexus the government had to show under the Commerce Clause in child pornography cases. The Court explained that Sebelius addressed the Commerce required when commerce is being “compelled” by the government, not, as here, the production of child pornography.