Alvarado: Insufficient evidence to support public authority instruction

In U.S. v. Alvarado, No. 13-14843 (Dec. 11, 2015), the Court affirmed the conviction and 360-month sentence of a defendant who claimed he was working as a government informant when he engaged a drug trafficking informant. The Court held that Alvarado failed to offer sufficient evidence to support giving the jury a “public authority defense” jury instruction. The Court noted that some confusion in its caselaw regarding how much evidence a defendant must offer to obtain this instruction, but found no need to harmonize the standards because Alvarado failed to offer any evidence that a law enforcement official authorized his criminal conduct. The Court noted the defendant’s “radio silence” with law enforcement during periods when he was meeting with drug traffickers. Moreover, his written agreements with law enforcement agencies prohibited him from taking actions not authorized by his handlers. Though not adhering to any formalistic requirements about what constitutes “authorization,” the Court rejected Alvarado’s argument that he reasonably relied on his original informant role for participation in subsequent crimes. The Court also noted that the jury rejected the “innocent intent” defense. Turning to sentencing, the Court rejected Alvarado’s unreasonableness challenge to his within-Guidelines term of incarceration. The Court noted that his co-conspirators received lesser sentences, but admitted guilt.

Kilgore: Hall IQ holding does not apply retroactively

In Kilgore v. Sec., Fla. Dep’t of Corr., No. 13-11825 (Nov. 16, 2015), the Court affirmed the denial of habeas relief to a Florida death-row inmate who claimed that he was intellectually disabled and therefore ineligible for the death penalty for his 1989 murder. In Atkins v. Virginia (2002), the Supreme Court held that the execution of the intellectually disabled violates the Eighth Amendment. In Hall v. Florida (2014), the Supreme Court held that an individual with an IQ test score between 70 and 75 or lower may present additional evidence of difficulties in adaptive functioning. Kilgore had IQ socres of 74, 75 and 76. The Florida Supreme Court affirmed his execution because the Florida IQ cutoff, pre-Hall, was 70. Kilgore claimed that he should have gotten the benefit of Hall, retroactively. The Court rejected this argument, finding that it squarely held in In re Henry that Hall merely created new procedures for ensuring that states follow the rule enunciated in Atkins. The Court rejected the argument that the actual holding of In re Henry was limited to its finding that Henry’s IQ was 78, which put Henry outside the protection of Hall. This was an alternative holding, and both alternative holdings are binding precedent.

Azmat: Affirming convictions of physican who prescribed drugs for "pill mill"

In U.S. v. Azmat, No. 14-13703 (Nov. 10, 2015), the Court affirmed convictions for unlawful dispensation of controlled substances, and conspiracy to money launder, of a physician who wrote prescriptions for Oxycodone to “patients” of a “pill mill.” The Court rejected Azmat’s argument that writing prescriptions did not qualify as “dispensing” drugs, citing contrary precedent, and the language of the drug trafficking statute. The Court also rejected Azmat’s challenge to the sufficiency of the evidence. As to the drug trafficking counts, the Court noted that “the patients looked like addicts or ‘zombies.’” As to the money laundering count, which charged the use of the proceeds from unlawfully dispensing controlled substances to promote the pill mill’s illegal activities, the Court noted that the patients paid for the drugs in cash, and the defendants used this cash to operate the illegal “clinic.” The Court also rejected Azmat’s Daubert challenge to the testimony of a government expert that Azmat’s prescribed controlled substances were “not medically legitimate.” The Court noted that the doctor’s expert testimony relied on published sources generally accepted by the medical community in defining the applicable standard of care. Turning to sentencing, the Court found no error in the district court’s calculation of drug quantity, which held Azmat accountable for all of the drugs he prescribed, noting the expert testimony that he did no prescribe any of the pills for a legitimate medical purpose. Finally, the Court rejected Azmat’s claim that his sentence created an unwarranted disparity in relation to the shorter sentences imposed on his accomplices, pointing out that the accomplices pled guilty, and that he was convicted of more crimes.

Toll: Accountant opinion testimony proper

In U.S. v. Toll, No. 13-14540 (Nov. 3, 2015), the Court affirmed fraud convictions arising out of a scheme to use a separate set of accounting statements to inflate a company’s value. The Court rejected the argument that the district court abused its discretion in allowing the company’s controller, who testified for the government, about whether he believed, when he created them, that the financial statements complied with accounting principles. Toll argued that the controller was not qualified as an expert witness. Even if some of the testimony was opinion testimony, it was admissible because it was based on the controller’s personal experience. The Court also rejected the challenge to the sufficiency of the evidence. The Court found that there was evidence that Toll knew that an accomplice was misrepresenting the financial strength of the company, and knew the other facts that were the basis for his multiple convictions.

Chafin: Fowler has overruled Veal

In U.S. v. Chafin, No. 14-10160 (Oct. 28, 2015), the Court affirmed a conviction of a Georgia sheriff, based on checks he drew from the prison commissary account to buy lottery tickets, for federal program embezzlement in violation of 18 U.S.C. § 666, but reversed a conviction for obstructing justice by hindering the communication of information about a potential federal offense to federal officials in violation of 18 U.S.C. § 1512(b)(3). The Court rejected the argument that there was insufficient evidence that Brooks County, Georgia received more than $10,000 in federal funds, an element of § 666. The Court interpreted the statute to exclude “bona fide salary” type payments by the federal government to an entity in the usual course of business. But the federal payments to Brooks County were not salary payments, but covered operating costs associated with the witness-advocate position in the sheriff’s office. Turning to the obstruction of justice conviction, the Court noted that in Fowler v. U.S. (2011), the Supreme Court held that the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer. Reviewing for plain error, the Court found that Fowler overruled prior Circuit precedent, U.S. v. Veal. Consequently, the district court’s use of this prior Veal standard was reversible error. Had the district court applied the Fowler standard, the trial would have ended in an acquittal.

Espinosa: Unsuccessful motion for belated appeal does not toll one-year limitations period

In Espinosa v. Sec., Dep’t of Corrections, No. 14-10581 (Oct. 23, 2015), the Court held that the filing of an unsuccessful state petition for belated appeal of the denial of post-conviction relief does not toll the one-year statute of limitations for filing a federal habeas petition. The Court recognized caselaw that held that the filing of a petition for belated appeal that is granted by a state appellate court tolls the one-year limitations period. But here, the state appellate court denied the motion for a belated appeal, which put Espinosa in a “materially different” procedural posture.

Hernandez: Double Jeopardy doesn't preclude both forfeiture and restitution

In U.S. v. Hernandez, No. 15-11202 (Oct. 19, 2015), on a government appeal, the Court reversed the district court’s denial of the government’s civil forfeiture motion. The district court had denied forfeiture on the ground that it had also ordered Hernandez to pay restitution. But the Court noted that the district court not offset the amount of forfeiture by the amount of restitution, because both forfeiture and restitution were statutorily mandated. The Court rejected Hernandez’ argument that Double Jeopardy precluded ordering duplicative restitution and forfeiture. The Court noted that restitution is intended to make victims whole, while forfeiture is intended to punish a defendant by transferring his ill-gotten gains to the Department of Justice. In addition, restitution here was to the Social Security Administration, an entity separate from the Department of Justice.

Diveroli: Ovewhelming evidence defeats claim of ineffective plea advice

In Diveroli v. U.S., No. 14-11576 (Oct. 9, 2015), the Court rejected a § 2255 claim of a defendant convicted of fraud, who claimed that his attorney miscalculated his potential sentencing exposure and thereby caused him to plead guilty when instead he would have gone to trial. Diveroli claimed that his attorney told him that his sentencing exposure was 168-210 months, based on a loss amount up to $30 million, when in fact the exposure was 63-70 months under a correct loss amount, and that he would have proceeded to trial had it not been for the incorrect advice. The Court first dismissed the § 2255 appeal by Diveroli’s corporation, pointing out that § 2255 relief is limited to a prisoner in custody, and a corporation cannot be held in custody. Turning to Diverolis’ claim, the Court found that overwhelming evidence established that Diveroli was guilty of making false statements to conceal the Chinese origin of weapons he was selling to the United States Army. His defense was “patently frivolous.” Therefore, “Diveroli could not establish that it would have been rational to reject [the] plea agreement given its favorable terms and his near-certain conviction.”

Brantley: Misprison conviction affirmed

In U.S. v. Brantley, No. 13-12776 (Oct. 9, 2015), the Court affirmed the conviction of a defendant convicted of misprision of a felony, based on having concealed her boyfriend’s crime of being a felon in possession of a firearm (in an incident in which her boyfriend, Morris, shot and killed two police officers). The Court rejected Brantley’s claim that she was selectively prosecuted. A claim of selective prosecution requires a showing that it was motivated by a discriminatory purpose, and that similarly-situated individuals were not prosecuted. The Court rejected Brantley’s reliance on the fact that another person who hosted Morris was not prosecuted, pointing that two were aware of the crime at different times, and Brantley’s affirmative steps to conceal the crime through text messages and phone calls. The Court also noted the prosecution’s discretion to prosecute Brantley, pointing out that her prosecution “publicized the fact that those who conceal evidence about the capital murder of a police officer will be prosecuted.” The Court rejected the argument that her Fifth Amendment right to remain silent was violated by her prosecution, because she was free to remain silent about her own offense of fleeing the scene of a crime. The Court pointed out that Brantley was prosecuted for “affirmative acts of concealment,” not mere silence, acts such as hiding in a car and calling and texting Morris in order to conceal his crime. The Court rejected Brantley’s challenge to the sufficiency of the evidence, pointing out that she concealed the car that linked Morris to the unlawful possession of the murder weapon. The Court rejected Brantley’s challenge to the insufficiency of the jury’s special findings, pointing out that a general verdict of guilt sufficed.

Carpenter: No plain error in imposing lifetime computer restriction

In U.S. v. Carpenter, No. 14-13177 (Oct. 7, 2015), the Court affirmed a 97-month term of incarceration followed by a lifetime term of supervisory for a defendant convicted of possession of child pornography. Citing its prior decision in U.S. v. Cubero, the Court held that the Sentencing Commission’s 2012 Report critical of the child pornography guidelines did not heighten a district court’s need to explain why it was imposing a within-Guidelines sentence, or require a downward variance. The Court held that Carpenter “invited” the district court to impose a lifetime, having “repeatedly asked the court to impose a life term.” The Court noted that Carpenter did not say that a life term of supervised release was appropriate only if the sentencing court granted a downward variance. The Court added that this argument would have been unavailing because the length of a prison term has “no bearing” the need for subsequent supervision. In addition, on appeal, a defendant cannot complain of the result of a strategic decision. The Court also rejected Carpenter’s challenge to a ban on his possessing a computer or adult pornography. The Court noted that Carpenter did not raise this objection at sentencing, so the issue was reviewed for “plain error.” The Court noted that no prior case had prohibited a lifetime ban on the usage of a computer (outside the context of employment). There was therefore no plain error. There also was no precedent barring the restriction of all forms of pornography. The Court noted that the Circuits are split on this issue, and therefore there can be no plain error. In a footnote, the Court pointed out that the district court could shorten or terminate Carpenter’s supervised release.

Johnson: Upward variance justified by prior robberies

In U.S. v. Johnson, No. 14-13874 (Oct. 5, 2015), the Court affirmed the 102-month sentence of a defendant convicted of bank robbery. The Court affirmed the imposition of a six-level Guideline enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for a firearm having been “otherwise used” during the robbery, instead of just a five-level enhancement for “brandishing” the firearm. After brandishing the pistol at the tellers, Johnson pointed the pistol at the tellers and demanded money without dye packs. Shortly thereafter, upon receiving the money and discovering that the tellers did include dye packs, Johnson stated: “I said I will kill you.” Therefore, Johnson’s use of the firearm to both implicitly and explicitly threaten the tellers amounted to “otherwise use[]” of the firearm. The Court also rejected a substantive reasonableness challenge to the upward variance from a Guideline range of 70-87 months to a sentence of 102 months. The district court reasonably found that the advisory guidelines range understated the seriousness of Johnson’s recent criminal history, which included participation in a string of eight armed robberies in a 14-month period, in which victims were held at gunpoint and feared for their lives. Johnson participated in these robberies within a couple of years of his release from federal prison on a 71-month sentence. Although Johnson was not convicted of these robberies, the district court was free to consider them under 18 U.S.C. § 3661.

Puentes: Rule 35(b) does not authorize reduction of restitution

In U.S. v. Puentes, No. 14-13587 (Oct. 5, 2015), the Court held that a district court lacks authority to reduce the amount it had ordered in restitution when it grants a reduction in sentence to a cooperating defendant pursuant to Fed. R. Crim. P. 35(b). The Court noted that, as its title suggests, the Mandatory Victims Restitution Act mandates restitution. Further, 18 U.S.C. § 3663A(a)(1) makes restitution mandatory “[n]otwithstanding any other provision of law.” In addition, § 3664(o) lists the ways a restitution order can be modified; Rule 35(b) is not on the list. The Court also noted that a “correction” of sentence under Rule 35 is not the same thing as the “reduction” of a sentence.

Denson: No 2255 relief for career offender

In Denson v. U.S., No. 14-10211 (Sept. 30, 2015), the Court rejected the claim of a movant under 28 U.S.C. § 2255 who claimed that his counsel was ineffective for failing to claim that his prior conviction for possessing a sawed-off shotgun in violation of Fla. Stat. § 790.221(1) did not qualify as a “crime of violence” under the career offender Guideline. The Court that this argument would have been “meritless,” because it ran counter to the express language of the Guidelines. Further, the argument would not have found support in the Supreme Court’s Begay decision, because Begay interpreted the Armed Career Criminal Act, and the Guideline commentary differed from this statute because it designated the possession of a short-barreled shotgun as a crime of violence. Finally, the Supreme Court’s recent decision in Johnson, which held that the residual clause of ACCA was unconstitutionally vague, did not affect Denon, because Matchett recently held that vagueness doctrine does not apply to the advisory sentencing guidelines, and because counsel is not ineffective for failing to predict new developments in the law.

Maddox: Accomplice's gun use was reasonably foreseeable

In U.S. v. Maddox, No. 14-15064 (Sept. 30, 2015), the Court affirmed the imposition of sentence enhancements on a defendant convicted of aiding and abetting an attempted armed robbery in violation of the Hobbs Act, based on the brandishing of a firearm by an accomplice, and injury caused by this accomplice. The Court reasoned: “once one concludes that the defendant knew that [his accomplice] was armed with a gun, it makes perfect sense that he could also reasonably anticipate that [the accomplice] might well show that gun to the person whom he was trying to force to hand over the store’s money. After all, isn’t that the primary purpose of brining a gun to a robbery? As to the injuries suffered by the store manager, . . . the defendant could also reasonably anticipate that his admittedly erratic co-conspirator might well use that gun, in some way, on anyone who thwarted his efforts to obtain the sought-after money. Thus . . . the district court’s determination regarding the reasonable foreseeability of the above acts does not give rise to a definite and firm conviction that a mistake has been made.”

Martin: Evidence Sufficient to support mortgage fraud

In U.S. v. Martin, No. 14-11019 (Sept. 30, 2015), the Court affirmed convictions for fraud arising out of fraudulently obtained mortgage loans, affirmed the sentence but reversed the restitution award. The Court rejected Martin’s challenge to the sufficiency of the evidence, noting her participation in a scheme involving her father’s submission of fraudulent income statements to lending institutions. The scheme “affected” a financial institution, even if a lender suffered no loss (by selling the loan to another institution), because the fraudulent statements resulted in “an increased risk of loss through default.” Turning to sentencing, the Court rejected Martin’s challenge to the denial of a minor role sentence reduction. The Court noted Martin recruited her father to participate in the scheme. With regard to restitution, the Court held that a “successor lender” can qualify as a “victim” for restitution purposes. The successor lender purchased the loan without an awareness of its true value, due to the fraud. The Court, however, recognized that the district court did not consider the actual purchase price that the successor lender paid for the loans. If this purchase price was less than the price at which the successor lender sold the loan, the successor lender would actually make a profit. The Court therefore remanded the case for recalculation of the restitution to be awarded, if any.

Pineda: Counsel not ineffective in not moving to suppress evidence

In Pineda v. Warden, No. 14-13772 (Sept. 21, 2015) the Court affirmed the denial of habeas relief to a Georgia inmate who claimed his lawyer was ineffective in failing to move to suppress cocaine found in a vacant apartment. The Court agreed with Pineda that the Georgia Court of Appeals incorrectly found that officers had a view of the vacant apartment that they later searched, because such a view was physically impossible. The Court also noted that counsel was not reasonable in believing that a motion to suppress the contents of the apartment would jeopardize a trial defense that Pineda did not live in the apartment and therefore could not have owned the cocaine. Evidence presented in a separate hearing on the search could not have been admissible at trial. But counsel was reasonable in believing that Pineda lacked standing to challenge a search of the apartment, because Pineda had abandoned it. Trial counsel knew that Pineda had not lived in the apartment for several weeks, had a new lease with his aunt at a new apartment, had given away his garage remote and had no access to the apartment. Counsel reasonably decided that Pineda lacked standing to challenge a search of the vacant apartment. Though counsel could have argued against abandonment, reasonable jurists could agree that counsel was not deficient in not perfecting a motion to suppress.

McLean: Insufficient Evidence of Jurisdictional element of federal bribery

In U.S. v. McLean, No. 14-00061 (Sept. 24, 2015), the Court rejected the government’s appeal of the district court’s grant of a judgment of acquittal for a defendant charged with bribery in violation of 18 U.S.C. § 666. The Court found insufficient evidence of the jurisdictional element of the statute, that an organization, here, the Margate Community Redevelopment Agency (“MCRA”) of which McLean was a Commissioner, receive in excess of $10,000 under a Federal program. The Court recognized that the City of Margate received federal funds and the City in turn provided funds to MCRA, and the County used federal funds to construct six bus shelters which were placed in MCRA’s care. But this “minimal” showing was insufficient to establish a relationship to the structure operation and purpose of a federal scheme. A mere “stimulus” package is not a federal program. The Court rejected the government’s argument that the jurisdictional element was a question of law, finding, to the contrary that it was a question of fact for the jury to find.

Matchett: Vagueness does not apply to Sentencing Guidelines

In U.S. v. Matchett, No. 14-10396 (Sept. 21, 2015) (Pryor, J. Carnes & Siler), the Court rejected the argument that the defendant was stopped in violation of the Fourth Amendment, and rejected the argument that the Guideline’s residual clause definition of a “crime of violence” was unconstitutionally vague in light of Johnson v. U.S. A police officer stopped Matchett when he saw him walking down a residential street holding an unboxed flat-screen television during the morning of a weekday. The Court held that because residential burglaries were common during work hours, commonly involved flat-screen tvs, and common in this neighborhood, the police officer had sufficient reasonable suspicion of illegal activity to stop Matchett. The officer also had reason to frisk Matchett once Matchett’s demeanor changed, and he looked left and right as if he was going to flee, and Matchett, while going through his pockets looking for identification, never touched his right front pocket (where he had a gun). Turning to sentencing, the Court affirmed the district court’s ruling that Matchett’s two prior convictions for burglary of an unoccupied dwelling were “crime[s] of violence” because they “involve[d] conduct that presents a serious potential risk of physical injury to another,” the residual clause of the Guidelines’ career offender provision. The Court explained that because the Guidelines are merely advisory, they cannot violate a defendant’s right to due process by being vague. The Court rejected the analogy to the Ex Post Facto Clause, which applies to the Guidelines, finding that it “in no way” informed the Due Process vagueness analysis. The Court noted the policy argument against applying a residual clause that “lacks precise meaning,” stating that this argument “is properly addressed to the Sentencing Commission.” The Court noted that no other Circuit has held that the Guidelines can be unconstitutionally vague [citing cases that all preceded the Supreme Court’s 2013 in Peugh, which held that the Ex Post Facto Clause applied to the advisory Guidelines]. The Court held that burglary of a dwelling creates the kind of risk that qualifies as a “crime of violence.” Finally, the Court affirmed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of death or substantial bodily injury, based on Matchett’s struggle with the police officer while a handgun was in his pocket. The Court noted the risk that the gun could have gone off accidentally. [Query: Was the panel correct that Ex Post Facto principles “in no way” guide the Due Process analysis, or could one reason that, since the Ex Post Facto Clause requires notice of advisory Guideline punishment at the time an offense is committed, the Due Process Clause in turn requires that this advance notice be clear?]

Harris: 2241 petition not permitted when 2255 was adequate

In Harris v. Warden, No. 14-14550 (Sept. 16, 2015), the Court affirmed the dismissal of a habeas petition filed under 28 U.S.C. § 2241, because a motion under § 2255 was adequate to test the legality of his conviction, and thus a § 2241 claim was not permitted. The Court noted that Harris’ claim was a constitutional claim and therefore cognizable under § 2255.

Slaton: Sentencing finding violated the "non-contradiction" principle

In U.S. v. Slaton, No. 14-12366 (Sept. 14, 2015), the Court affirmed convictions of a defendant who fraudulently obtained federal worker’s compensation from the Department of Labor by falsely claiming that a disability prevented him from resuming his duties for the U.S. Post Office. The Court rejected all of Slaton’s challenges to the sufficiency of the evidence, noting that Slaton’s ex-girlfriend testified that he drove to and from Alabama to Arkansas without any apparent difficulty, at a time when he was claiming that his back pain prevented him from making a 30 minute drive to work. Turning to sentencing issues, the Court agreed with the parties that the district court miscalculated the special assessment, because it counted certain misdemeanors as felonies. The assessment for a felony is $100 per count of conviction; the assessment for a misdemeanor is $20 per count. The Court agreed, in part, with Slaton’s claim that under the correct “net loss” Guideline approach to loss, Slaton might have been entitled to some of the medical benefits he received for his back injury. If there was error, the Court noted, it would only affect the restitution amount, since the loss amount for Guidelines purposes would not change the offense level. On cross-appeal, the government challenged the district court’s downward variance to zero months of incarceration. The Court noted that the district court relied on its finding that Slaton lost worker’s compensation to which he might arguably have been entitled. The Court noted that this finding contradicted the jury’s verdict on one count of conviction, which “necessarily found that [Slaton] was not entitled to the worker’s compensation benefits he received.” The sentencing court’s finding therefore violated the “non-contradiction principle” which holds that a district court’s finding at sentencing cannot be “inconsistent with any of the findings that are necessarily implicit in a jury’s guilty verdict.” The district court therefore vacated the sentence and remanded for resentencing, without expressing any view on whether the non-incarceration sentence might otherwise have been substantively reasonable.

Walker: Knock and talk exception applies

In U.S. v. Walker, No. 15-10710 (Sept. 3, 2015), the Court held that the “knock and talk” exception to the warrant requirement applied, and rejected the defendant’s claim that the search of his home violated the Fourth Amendment. The police approached Walker while he was inside his car, with the dome light on, at 5:00 am, inside his open-sided carport near his home. The police were authorized to knock on the car window and talk to Walker. The small distance from the front door of the home did not cause the entry to exceed the knock and talk exception. When the police saw a light on in the car, and lights on in the house, it was not unreasonable for them to tap on the vehicle and ask Walker to step out.

Hough: Defense counsel "opened the door" for question on character witnesses

In U.S. v. Hough, No. 14-12156 (Sept. 9, 2015), the Court affirmed convictions for making false statements to the IRS, but vacated the sentence. The Court rejected Hough’s challenge to the sufficiency of the evidence, finding sufficient evidence that she failed to disclose her financial interest in foreign bank accounts. The Court agreed with Hough that the prosecutor asked her character witnesses a question that presumed the defendant’s guilt, and that ordinarily such questions are improper. However, defense counsel had “opened the door” for these questions when he had asked these witnesses, on direct examination, whether their opinion of Hough’s character would change based on the allegations against her. Turning to sentencing, the Court found that, for tax loss calculation purposes, the district court failed to find “foundational facts” to support its conclusion that Hough’s entities should be treated as partnerships, instead of corporations. The Court therefore remanded for resentencing.

Hesser: Affirming tax evasion conviction

In U.S. v. Hesser, No. 13-11712 (Sept. 8, 2015), the Court affirmed convictions for submitting false claims to the IRS, and for tax evasion, but reversed the restitution order because it included amounts that Hesser still owed for tax deficiencies, but which the IRS had not actually lost. Reviewing the challenges to the sufficiency of the evidence only for a "manifest miscarriage of justice" because Hesser at trial failed to move for a judgment of acquittal, the Court found sufficient evidence, particularly from Hesser's own trial testimony, to support the convictions. Reviewing the claimed trial errors only for "plain error" because Hesser at trial failed to object, the Court found no grounds to reverse. The Court did not "condone" the prosecutor's misleading statement that Hesser relied on a disbarred attorney for advice, but found that this isolated remark did not affect Hesser's substantial rights. Turning to sentencing, the Court rejected Hesser's challenge to the imposition of an obstruction of justice enhancement. The Court affirmed the trial court's finding that Hesser improperly attempted to influence his wife's testimony before she testified for the government at his trial.

Cunningham: 3583(h) does not govern incarceration for revocation of supervised release

In U.S. v. Cunnigham, No. 14-14993 (Sept. 2, 2015), the Court rejected the argument that 18 U.S.C. § 3583(h) limited the length of term of incarceration that a district court could impose on a defendant who violated his supervised release. The Court found that § 3583(h) places a cap on post-revocation supervised release so that a defendant is not at risk for an unlimited cycle of imprisonment and supervised release. However, § 3583(e)(3) places a felony class limit (here, two years) on the length of imprisonment a district court can impose on revocation of supervised release. The two provisions apply “harmoniously.”

Martinez: Indictment for 875(c) violation defective post-Elonis

In U.S. v. Martinez, No. 11-13295 (Sept. 3, 2015), on remand from the Supreme Court for consideration in light of Elonis v. U.S., the Court reversed its earlier holding and remanded the case with instructions to the district court to dismiss the indictment without Martinez. The indictment charged Martinez with making a threat to injure another person, in violation of 18 U.S.C. § 875(c). Martinez moved the dismiss the indictment, because it failed to allege that she subjectively intended to convey a threat to injure others. The district court denied the motion, and the Court affirmed. The Court noted that Elonis held that to violate § 875(c), a person must subjectively intend to convey a threat. Whether a “reasonable person” regards the communication as a threat does not suffice. Because Martinez’ indictment failed to allege that she subjectively intended to convey a threat, and because, post-Elonis, this is an essential element of § 875(c), the indictment was deficient.

Braun: Prior Batteries do not qualify under ACCA

In U.S. v. Braun, No. 13-15013 (Sept. 8, 2015), the Court held that because two of the defendant’s prior convictions did not qualify as “violent felonies” under ACCA, the district court erred in imposing ACCA’s mandatory minimum sentence. One of the prior convictions relied on by the district court was a conviction for aggravated battery on a pregnant woman, in violation of Fla. Stat. § 784.045(1)(b). This was a “divisible” statute, because one could violate it by “touching,” or by “striking,” a pregnant woman. The government noted that in a later unrelated case, Braun failed to object to a Presentence Investigation Report that stated that this offense involved “pushing” and “choking” the victim. But the Court held that a Presentence Report in another case was not a Shepard document – not a document that the district court could rely on in determining whether a prior conviction counted as a “violent felony” under ACCA. Thus, the district court erred in relying on this Presentence Report. And because a conviction is presumed to rest upon no more than the least of the acts criminalized, here, mere “touching” did not qualify as a “violent felony.” The Court found that, as to Braun’s prior conviction for battery on a police officer, the Shepard documents only allowed it to conclude that Braun “touched” a police officer. Thus, the Court distinguished its prior decision in U.S. v. Turner, and concluded that Braun’s battery on a police officer did not qualify under ACCA.

Zelaya: 2241 relief not avalaible in the circumstances

In Zelaya v. Sec., Fla. Dept. of Corrections, No. 12-16462 (Aug. 24, 2015), the Court held that a district court committed no error in deciding not to recharacterize Zelaya’s habeas petition under 28 U.S.C. § 2241 as a § 2255 motion. The Court noted that Zelaya made a strategic choice to file a petition under § 2241, and the district court was not obliged to consider the costs and benefits of the alternative approach. The Court ruled that Zelaya’s § 2241 petition was not cognizable under the savings clause of § 2255(e) because his claim, namely that his illegal reentry conviction was pursuant to an unlawful deportation order, was never foreclosed by Circuit precedent. Zelaya’s claim that he was actually innocent did not entitle him to proceed under § 2241 instead of § 2255. The Court remanded the case to the district court, with instructions to dismiss his petition without prejudice.

Feaster: VA Theft is Felony not Misdemeanor

In U.S. v. Feaster, No. 14-13978 (Aug. 25, 2015), the Court rejected the defendant’s argument that her convictions for theft under 18 U.S.C. § 641 should have been misdemeanors, not felonies. The Court noted that under the statute, a punishment of less than one year only applies if the aggregate amount of all counts of conviction did not exceed $1,000. The fact that one count of conviction was for less than $1,000 does not entitled a defendant to have a conviction become a misdemeanor. The Court also rejected Feaster’s challenge to the “sophisticated means” sentence enhancement. The Court noted the totality of the scheme, including the two years for which the conduct was not detected. Feaster used her inside information and her position at the Veterans Administration to perpetrate the fraud. She prepared a fraudulent purchase order to obtain approval to use a government authorized Purchase Card. She obscured her personal purchases by using the Purchase Card. She made fictitious entries in the VA’s system to reconcile the original purchase order with the amount of money she had charged on the Purchase Card.

Hill: Resisting an officer with violence qualifies under ACCA elements clause

In U.S. v. Hill, No. 14-12294 (Aug. 26, 2015), the Court, affirming a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), found no error in a district court’s denial of a defendant’s request to add the word “knowingly” to its jury instruction on “constructive possession.” The Court found that the district court’s instruction impliedly required that Hill knowingly possess the firearm. On a cross-appeal by the government of the district court’s finding that two prior convictions did not qualify as “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), the Court agreed with Hill that this argument was foreclosed in light of the Supreme Court’s recent Johnson decision. However, the Court (sua sponte: the government did not raise this point on cross-appeal) found that one prior conviction, for resisting an officer with violence, in violation of Fla. Stat. § 843.01, qualified under ACCA’s elements clause. The Court therefore remanded the case for the district court to consider whether the prior Fla. Stat. § 843.01 conviction, coupled with two prior drug offenses, might qualify Hill for a sentence under ACCA.

Maiello: Delay of Amendment 782 to November 2015 is valid

In U.S. v. Maiello, No. 15-10532 (Aug. 19, 2015), the Court held that a drug offender subject to an Amendment 782 sentence reduction was not eligible to immediately benefit from the reduction because of the Sentencing Commission’s decision to delay any release until November 2015. The Court rejected the argument that the Sentencing Commission improperly considered offenders’ rehabilitation in its delay decision, in violation of Tapia v. U.S. The Court noted that Tapia applied to a decision to impose a sentence, not to a decision to reduce a sentence under 18 U.S.C. § 3582(c). The Court also rejected the argument that the Commission’s delay decision violated the Administrative Procedure Act, pointing out that policy statements of the Commission are not subject to the APA. The Court also found that the Commission’s decision was reasonable, not arbitrary and capricious. Finally, the Court rejected the argument that the Commission’s delay decision encroached on the judicial power. The Court noted that Congress delegated to the Sentencing Commission the power to specify the circumstances under which sentences may be reduced.

Sperrazza: Structuring need not involve a "cash hoard"

In U.S. v. Sperrazza, No. 14-11972 (Aug. 17, 2015), the Court affirmed convictions of tax evasion and structuring currency transactions, and a forfeiture order of $870,238.99 on a Georgia physician. The Court (2-1) rejected the argument that a “structuring” violation must involve a defendant who has more than $10,000 on hand (a “cash hoard”). The Court explained that a person who has $9,000 on hand, and knows more cash is on the way, and deposits the $9,000 to evade the $10,000 reporting requirement can be guilty of “structuring.” The Court also rejected Sperrazza’s claim that the $870,238.99 forfeiture violated the Excessive Fines Clause of the Eighth Amendment. The Court noted that under the statute the defendant was subject to a fine of up to $500,000. The Court also rejected the argument that the forfeiture was excessive because Sperrazza earned the money lawfully. The Court pointed out that the structuring “decreased the likelihood the IRS would detect the underlying tax evasion.”

Willner: Deliberate Ignorance Instruction Proper

In U.S. v. Willner, No. 12-15322 (Aug. 3, 2015), the Court reversed a medicare fraud conspiracy conviction for insufficient evidence, but otherwise affirmed convictions arising out of a scheme that submitted in excess of $200 million in fraudulent claims. As to one convicted co-conspirator, the Court noted the absence of any direct evidence of her participation in the conspiracy, and rejected as too weak the inferences the government attempted to draw from circumstantial evidence. The Court rejected other defendants’ argument that they should have been a theory-of-defense instruction based on Florida law, finding that this law did not have influenced the jury based on the way the government presented its case. Joining the majority of circuits to have considered the issue, the Court held that it was proper to give a jury a deliberate ignorance instruction with regard to whether a defendant knew the unlawful purpose of a conspiracy, without giving this instruction to whether the defendant willfully joined in the conspiracy. The Court found that the district court abused its discretion when it allowed a government witness to give opinion testimony, and when it not allowing the defense to cross-examine this witness about the basis for his opinions. However, the error was harmless in light of the overwhelming evidence of guilt.

Puentes-Hurtado: Claims reviewable on appeal despite appeal waiver

In U.S. v. Puentes-Hurtado, No. 13-12770 (July 22, 2015), the Court held that an appeal waiver in a plea agreement did not bar a subsequent appeal on a claim that the plea was involuntary because counsel rendered ineffective assistance, because the government breached the plea agreement, nor on a claim that there was an insufficient factual basis to support the plea – such a claim goes to whether the guilty plea is enforceable. The Court declined to reach the ineffective assistance of counsel claim, finding the record insufficiently developed, and noting that the defendant could file a motion to vacate under 28 U.S.C. § 2255. Reviewing the issue for “plain error,” the Court found that even if the defendant only admitted to physically transporting the drug proceeds, this sufficed to support his guilty plea for a narcotics distribution conspiracy. Again reviewing for “plain error,” the Court found that even if the government breached the plea agreement by presenting drug quantity evidence that supported a higher sentence, the district court would have imposed the same sentence even based on a lower drug quantity. The defendant failed to establish a reasonable probability that the district court would have imposed a lower sentence.

Khan: Defense ran the risk that video conferencing witnesses would fail

In U.S. v. Khan, No. 13-14048 (July 23, 2015), the Court affirmed convictions for providing material aid to terrorists. The Court rejected the challenge to a translator’s use of bracketed words to explain the meaning of intercepted telephone conversations. The Court found that the bracketed words appropriately transported “living thoughts” from one language to another. The Court also rejected challenges to rulings made during the testimony of the government’s case agent. The Court found that any error in admitting as expert testimony the case agent’s non-expert testimony about the meaning of words used in conversations was harmless, in light of other testimony on the same topic. Though acknowledging that prosecutors should not permit investigators to give “overview testimony” about the results of a criminal investigation, the Court found that the case agent testified based on his personal knowledge of recorded conversations. The Court found no error in the limitation of cross-examination about a government informant, finding that the topics were irrelevant, or merely aimed to bolster the defendant’s credibility, not to undermine a witness’s credibility. The Court found no error in not allowing the defense to cross-examine the case agent about a Pakistani police report that purportedly exonerated Khan. The report was not in evidence, and offered no conclusions, but simply relayed hearsay statements. During the trial, the video-conference testimony of defense witnesses from Pakistan ceased when internet connection failed, most likely as the result of Pakistan police interference. The district court denied a defense request for a continuance to obtain the testimony. The Court found that the defense elected to run the risk that, in failing to obtain Pakistan government approval for the depositions, the depositions would be shut down. Moreover, it was undetermined how long it would take to re-establish internet connection.

Hamilton: Appeal of Denial of 60(b) motion requires COA

In Hamilton v. Sec., Fla. Dep’t of Corrections, No. 14-13535 (July 15, 2015), the Court held that a habeas petitioner who appeals the denial of Rule 60(b) motion is required, like a petitioner who appeals the denial of habeas relief under 28 U.S.C. § 2255, to obtain a Certificate of Appealability (“COA”) in order for the Court of Appeals to consider the appeal. The Court rejected Hamilton's argument that intervening Supreme Court cases called into question the Circuit precedent that required a COA in order for a habeas petitioner to appeal the denial of a Rule 60(b) motion – and the denial of a Rule 59(e) motion. Turning to whether Hamilton, a death row inmate, was entitled to COA, the Court held that he was not, finding his arguments “squarely foreclosed” by Circuit precedent.

Aunspaugh: Erroneous "Honest Services" Jury Instruction

In U.S. v. Aunspaugh, No. 12-13132 (July 8, 2015), the Court reversed convictions for mail fraud because of erroneous jury instructions on what constitutes “honest services.” The case involved an Electric Cooperative whose general manager steered contracts to a company that hired one of the Cooperative’s employees to do the work, and made secret payments to the general manager for this arrangement. The Court found that the evidence supported a finding of a “kickback,” and not a merely egregious conflict of interest, for purposes of the “honest services” fraud statute. However, the jury instructions erroneously did not require the jury to acquit on a finding that the scheme involved only self-dealing, not kickbacks. The Court therefore reversed the conviction, even though the evidence supporting the defense theory was “weak.” Because the money laundering conviction was predicated on the honest fraud conviction, the Court vacated this conviction as well. The Court, however, affirmed the structuring transaction convictions. The Court found that a defendant cashed checks for amounts just below the reporting requirements. The Court noted that the less serious of the two structuring statutes does not require the violation of another law. In light of its vacatur of other convictions, the Court vacated the sentence on the remaining structuring count, noting that the sentence “may not have been the same” without the other convictions.

Ruggierio: No age of victim knowledge required for unlawful production of child pornography

In U.S. v. Ruggiero, No. 13-14773 (June 30, 2015), the Court rejected the argument that 18 U.S.C. § 2251(a) was unconstitutional because it does not require the government to prove, for the offense of producing child pornography, that a defendant knew the victim was a minor. The Court noted that while scienter is generally an element of a crime, there is an exception for sex offenses, where crimes like rape do not require knowledge of the age of the victim. The Court also noted that producing child pornography is not the type of “wholly passive” crime for which mens rea can be required. The Court stated: “We have no doubt that a person of ordinary intelligence would know, upon reading § 2251(a), that it prohibits persuading a 15-year old to engage in sexually explicit conduct for the purpose of photographing her with a cell phone camera that has traveled in foreign commerce.”

Williams: "False" is distinct from "Fictitious"

In U.S. v. Williams, No. 13-13042 (June 22, 2015), the Court held that the use of fake checks bearing the account and routing numbers of another person’s bank account qualified as passing a “false or fraudulent” instrument under 18 U.S.C. § 514. The Court rejected the argument that “false and fictitious” referred to non-existent types of instruments, such as a three-dollar bill. The Court noted that the term “false” was distinct from the term “fictitious.” The Court noted Williams’ argument that he could have been prosecuted under a separate “counterfeited” security statute, noting that a defendant can be prosecuted for similar conduct under separate statutes. The Court also rejected Williams’ challenge to his conviction under 18 U.S.C. § 1029 for unauthorized use of an “access device,” finding that a bank routing number plainly qualified as an access device. Finally, the Court rejected Williams’ argument that his offense of violating his terms of supervised release did not qualify as a “failure to appear” offense under 18 U.S.C. § 3146(b).

Cavallo: Vacating conviction because of prohibition on consultation with counsel

In U.S. v. Cavallo, No. 12-15660 (June 22, 2015), the Court reversed the conviction of one defendant because the district court violated his Sixth Amendment right to counsel when it prohibited him from consulting with his attorney during the three days of trial and two overnight recesses during which his testimony lasted, but affirmed the convictions and sentences of the two other defendants, except for the restitution portion of the judgment. Under Geders v. U.S., 422 U.S. 80 (1976), the district court’s prohibition on a criminal defendant’s consultation with counsel violates the Sixth Amendment. The Court noted that this holding was subsequently limited by Perry v. Leeke, 488 U.S. 272 (1989), which held that a prohibition on consultation during a fifteen-minute recess did not violate the Sixth amendment. But here, Geders, not Perry, governed, because the prohibition extended to two overnight recesses. The Court noted that the district court permitted the defendant to consult his attorney concerning his “constitutional rights,” but found that this limitation did not salvage the prohibition, pointing out that based on other statements, the defendant understood the prohibition to prohibit all contact with his attorney, and noting that the Sixth Amendment allows more than communication about constitutional rights. Accordingly, the Court vacated this defendant’s conviction. Turning to the argument of a co-defendant, the Court found that the district court did not abuse its discretion once it found that, post-verdict a defendant initiated a contact with a juror, and as a sanction for this violation of Middle District of Florida Rule 5.01(d), and declined to consider the evidence of extrinsic influence on the jury’s verdict suggested by an email from a juror. The Court noted the strong interest in protecting jurors against needless harassment from unsuccessful parties. The Court noted that Fed. R. Evid. 606(b) narrowly limits the kind of testimony a juror can give about a verdict. Turning to sentencing, the Court found no abuse of discretion in the district court’s loss calculation, finding that a preponderance of the evidence supported including certain transactions for which the jury acquitted the defendants. The Court also rejected a substantive reasonableness challenge to the sentence, pointing out that having sought a lenient sentence for his co-defendant spouse, one defendant now could not complain that his sentence was disproportionately higher than hers. As to restitution, the Court found that the district court erred in failing to offset any value that the victim may have derived from a fraudulent scheme. The Court therefore vacated the restitution portion of the order, and remanded for resentencing on this part of the judgment.

Frediani: War Suspension Act suspends statute of limitations

In U.S. v. Frediani, No. 14-11998 (June 22, 2015), the Court rejected the argument that the Wartime Suspension of Limitations Act did not apply to suspend the five-year statute of limitations for charges of conspiracy to commit aircraft parts fraud. The Wartime Suspension of Limitations Act suspends the five-year statute of limitations for fraud against the United States until 5 years after the termination of hostilities, as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress. No such proclamation had been made with regard to the conflict in Iraq (or Afghanistan) and Frediani argued that “indefinite tolling” would result because the United States will forever be engaged in small conflicts involving terror. The Court rejected this consideration as “irrelevant,” because the statute is “clear.” The Court also rejected the argument that the district court abused its discretion when it allowed the government to introduce, under Fed. R. Evid. 404(b), evidence of six additional fraudulent contracts that were not charged in the indictment. The Court found that the necessity to prove intent became more important when Frediani implied that he had only made a mistake.

Rosales-Bruno: Affirming 60-month upward variance for illegal re-entrant

In U.S. v. Rosales-Bruno, No. 12-15089 (June 19, 2015) (2-1), the Court affirmed the imposition, at resentencing, of an 87-month sentence for illegal reentry, rejecting the argument that the upward variance from the guideline range of 21-27 months was substantively unreasonable. The resentencing followed the Court’s vacatur of an earlier 87-month sentence because it was based on the district court’s erroneous finding that a prior conviction for “false imprisonment” qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) – which, under the “modified categorical approach,” it did not. The Court noted the “considerable discretion” of sentencing courts. The prior convictions involved shoving a girlfriend into a stove and threatening to burn her, and, while on bond for this offense, assaulting this girlfriend and threatening to kill her. The Court noted that these offenses may properly be considered as violent crimes for sentencing purposes other than for the application of § 2L1.2(b)(1)(A)(ii). The Court also noted that Rosales-Bruno’s criminal history included several driving-related convictions, such as driving under the influence of alcohol. The Court rejected the argument that the district court failed to distinguish Rosales-Bruno’s criminal history from that of the “average” category V illegal reentrant with a felony conviction. The Court noted that this would require district courts to have a detailed profile of the average offender for each crime, including the average number and nature of his prior crimes. The Court noted that it does not require such “explicit comparison,” and that district court are “far more familiar than we are with other convicted-felon, category V illegal reentrants.” The Court also rejected the dissent’s criticism of the Court for sending a message to district courts that it will not vacate unreasonably long sentences, only unreasonably short ones. The Court cited on published case and two unpublished ones in which it had reversed unreasonably long sentences. The Court noted that it had vacated less than 1% of sentences on substantive reasonableness grounds. The Court further noted that district courts within the Circuit had varied downward for 9,307 sentences, and upwards for just 828 sentences. [Judge Wilson, dissenting, found that the published case on which the majority relied had reversed the sentence on procedural grounds, not substantive grounds.].

Wingo: District Court should have sua sponte ordered competency hearing

In U.S. v. Wingo, No. 13-14435 (June 17, 2015), the Court reversed a money laundering conviction, after a guilty plea, and an 84-month sentence, because the district court failed to sua sponte order a competency hearing, as required by 18 U.S.C. § 4241(a) when there is reasonable cause to believe that a defendant is mentally incompetent. After the defendant was adjudged guilty, the defense submitted an extensive sentencing memorandum, accompanied by lengthy medical reports, which indicated that had a diminished mental capacity, evidenced by brain atrophy and dysfunction. The Court recognized that the district court could not possibly have known of the extent of Wingo’s mental health problems until counsel filed the sentencing memorandum. The Court further recognized that the sentencing memorandum was directed towards obtaining a reduced sentence, and did not request a competency hearing. Nevertheless, the district court was required by § 4241(a) to sua sponte inquire into Wingo’s competency, and its failure to do so was an abuse of discretion. The Court held that if Wingo is determined to have been incompetent at the time of his guilty plea, the conviction and sentence must be vacated, subject to the government’s right to try him should he become competent.

Arvelo: Guilty Plea does not waive ineffective assistance claim

In Arvelo v. Sec., Fla. Dep’t of Corrections, No. 14-11441 (June 10, 2015), the Court reversed the denial of habeas relief to a Florida inmate serving a 60-year sentence for attempted sexual battery and kidnapping with the intent to commit sexual battery, who claimed his lawyer was ineffective in failing to move to suppress his confession. A Florida habeas court had rejected Arvelo’s ineffective assistance claim on the ground that Arvelo waived that claim by pleading guilty. The Court found that this ruling was contrary to well-established law, which holds that the entry of a plea does not waive an ineffective assistance claim. The district court reasoned that evidence other than Arvelo’s confession supported the conviction. Rejecting this finding, the Court noted that Arvelo’s confession was the only direct evidence supporting the “intent to commit sexual battery” element of the offenses. The District Court also reasoned that by pleading guilty, Arvelo received the “benefit” of lower, 60-year, sentence. The Court noted that this was the wrong analysis. What mattered was not the sentence, but the viability of the motion to suppress. The District Court further reasoned that Arvelo did not prove that his confession was involuntary. But because no evidentiary hearing was held, the factual record was not developed on the voluntariness of the confession. The Court therefore remanded the case for the district court to hold an evidentiary hearing, and to reconsider the ineffective assistance claim.

Wilson: Affirming convictions for fraudulent IRS refunds

In U.S. v. Wilson, No. 13-14846 (June 5, 2015), the Court affirmed the convictions and sentence of a defendant charged with converting to his own use fraudulently obtained IRS tax refunds. The Court rejected Wilson’s challenge to the sufficiency of the evidence, pointing out that the payees of the tax refunds did not file the tax returns associated with the refunds, and that Wilson’s check-cashing business contained no records that he had verified the identities of the payees, as required by law. The Court rejected the argument that the mere use of a person’s “name” sufficed to show use of a “means of identification” for purposes of aggravated identity theft. Acknowledging a circuit conflict, the Court ruled that the use of a name suffices. The Court also rejected the argument that the district court erroneously admitted the testimony of an accomplice. The Court noted that it was reviewing the issue for “plain error,” because the district court, pre-trial, did not rule definitively, and, after it ruled at trial, Wilson did not preserve his objection. The Court found no plain error, because this evidence was “intrinsic” to the charged crimes. The Court also rejected a Confrontation Clause challenge to the admission of text messages sent by Wilson’s defense attorney to a law enforcement agent regarding the delivery of boxes of documents. The Court found that the messages were “non-testimonial,” because they were informal, haphazard communications. Turning to sentencing, the Court rejected the argument that the district court should not have included refund checks in its loss calculation, because these checks were not charged in the indictment. The Court found that these checks were part of the “pattern” proved at trial.

Perkins: Defendant clogged the gears of justice

In U.S. v. Perkins, No. 13-13444 (June 1, 2015), the Court affirmed the convictions and sentence of a defendant charged with a credit card fraud scheme. The Court declined to review Perkins’ claim that the district court forced appointed counsel on him, and held a trial in his absence in violation of Fed. R. Crim. P. 43, because Perkins invited any error. The Court found that Perkins tried to “sabotage” the criminal proceedings by refusing to leave his holding cell for trial, and became violent when the district judge came to see him to persuade him to come to the courtroom. The Court also rejected the claim that Perkins was not competent to stand trial, citing recorded phone conversations from jail in which Perkins discussed how he could use Rule 43 to avoid a conviction. The Court rejected the argument that a photo array was unduly suggestive because Perkins was the only man in the lineup with gold teeth, finding this fact alone did not make the lineup unduly suggestive. Turning to sentencing, the Court rejected Perkins’ challenge to the two-level obstruction of justice enhancement: “Mr. Perkins willfully set out to clog the gears of the judicial process.” The Court rejected a substantive reasonableness challenge to the 360-month sentence, noting that the scheme involved hundreds of fraudulent credit cards and more than 100,000 account profiled that claimed hundreds of victims. “Mr. Perkins presents a danger to society.”

Griffin: Rule 60(b)(5) does not apply to denial of habeas relief

In Griffin v. Sec., Fla. Dep’t of Corrections, No. 14-14851 (May 28, 2015), the Court denied a defendant’s argument that he was entitled to a certificate of appealability (COA) because jurists of reason could debate whether Federal Rule of Civil Procedure 60(b)(5), which permits litigants to challenge a final judgment when applying it prospectively is no longer equitable, permitted him to raise anew procedurally-defaulted ineffective-assistance-of-counsel claims. The Court held that Rule 60(b)(5) does not apply to the denial of habeas relief.

Brester: No Brady violation in failure to disclose plea agreement loss provisions

In U.S. v. Brester, No. 13-15311 (May 20, 2015), the Court held that because Brester was not prejudiced by the failure to disclose his cooperating co-conspirators’ plea agreement provisions limiting their loss amount for sentencing purposes, this non-disclosure did not violate Brester’s rights under Brady v. Maryland. Turning first to the question of whether it had jurisdiction to review the district court’s denial of Brester’s motion for a new trial, the Court noted that Brester had failed to file a second notice of appeal from the denial of this motion. Although the “better practice” is to perfect a separate appeal from the denial of a motion for a new trial, when the government is not prejudiced – here, it briefed the issue on appeal – the Court has jurisdiction. Next addressing the merits, the Court found that the loss amount limitation of the co-conspirators’ plea agreements would merely have been cumulative impeachment evidence, which does not establish “prejudice” under Brady. The Court noted these co-conspirators' admissions, on cross-examination, of their motivation for their testimony against Brester.

Siegelman: Affirming 78-month sentence for former Alabama Governor

In U.S. v. Siegelman, No. 12-14373 (May 20, 2015), the Court affirmed the denial of a motion for a new trial, and the 78-month sentence, imposed at resentencing, of the former Alabama Governor convicted of fraud. Relying on the “law of the case” doctrine, the Court rejected Siegelman’s claim the U.S. Attorney continued to be involved in his prosecution after her disqualification based on conflict of interest. The Court noted that it had already rejected this argument when raised by a co-defendant, ruling that while the law categorically prohibits an interested person from controlling a defendant’s prosecution, it does not forbid an interested person from having any involvement in the prosecution. As to his sentence, Siegelman argued that the district court failed to explain why it treated certain transactions as part of “relevant conduct.” Because Siegelman did not object to the district court’s failure to explain why these transactions qualified as “relevant conduct,” the Court reviewed the issue for “plain error.” The Court found no plain error, because it was clear from the record that, even though the district court made no explicit finding, its loss calculations had relied on specific transactions. The Court also rejected the argument that the transactions should not have qualified as “relevant conduct.” The Court found a substantial connection with the bribery offense of conviction, because there was a common accomplice, a common victim (the citizens of Alabama), a common purpose (power and money), and a similar modus operandi.

Rosin: Evidence Contradicted Ineffective Assistance of Counsel Claim

In Rosin v. U.S., No. 14-10175 (May 14, 2015), the Court affirmed the denial of an evidentiary hearing to a defendant convicted of health care fraud who claimed in a § 2255 petition that his lawyers were ineffective for grossly underestimating the sentence Rosin would receive and failing to pursue a plea bargain. The Court noted that Rosin’s lawyers filed affidavits stating that he professed his innocence and insisted on going to trial. While testifying at trial, Rosin blamed others for his plight. At sentencing, Rosin did not accept personal responsibility for the conduct alleged. Thus, the record evidence contradicted Rosin’s claim that he would have accepted a guilty plea and not insisted on going to trial but for trial counsels’ alleged error.

Keelan: Restitution for Mental Health Treatment Expenses

In U.S. v. Keelan, No. 13-11878 (May 13, 2015), the Court affirmed an order of restitution for mental health treatment expenses imposed on a high school teacher convicted of unlawful enticement of a minor in sexual activity, in violation of 18 U.S.C. § 2422(b). The Court rejected the argument that the § 2422(b) violation was not a “crime of violence” for which restitution could be ordered. In cases involving sex crimes against minors “there is always a substantial risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.” The Court noted that the defendant failed to raise below the argument that there was no “bodily injury,” and therefore found no “plain error.” The Court rejected the argument that mental health treatment expenses were not subject to restitution, noting the statute’s reference to “psychological care.” Finally, the Court rejected the argument that the defendant’s conduct did not cause the mental health treatment, agreeing with the district court that there was “no doubt” they were.

Quartavious Davis: No expectation of privacy in cell tower location information

In U.S. v. Quartavious Davis, No. 12-12928 (May 5, 2015) (en banc) (9-2), the Court held that no Fourth Amendment violation occurred when a court order, authorized by the Stored Communications Act, 18 U.S.C. § 2703(d), compelled a telephone company to produce records containing cell tower location information related to Davis’ cell phone. The Court noted that the Supreme Court in U.S. v. Miller and Smith v. Maryland held that individuals have no reasonable expectation of privacy in bank records, or dialed telephone numbers, because these records are maintained by a third-party business. Analogizing to these cases, and relying on a recent Fifth Circuit case, the Court found that cell tower location information is held by a third-party, not by the individual, and the individual therefore has no reasonable expectation of privacy in these records. The Court noted that unlike U.S. v. Jones, the case did not involve any surreptitious physical intrusion on the defendant’s private property. The Court also noted that cell tower information is less informative than the GPS tracking at issue in Jones. The Court also noted that there was “no overhearing or recording of any conversations.” [Judge Pryor, concurring, stated: “If a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call.”] [Judges Jordan and Rosenbaum, separately concurring, noted concerns that more protection might be needed in the future as location information from cell phones become more precise.] [Judges Martin and Jill Pryor, dissenting, found the third-party doctrine inapposite, noting that if applicable, it would eliminate expectations of privacy in email accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.].

Preston: No habeas relief for 1978 murder

In Preston v. Sec., Fla. Dep’t of Corrections, No. 12-14706 (April 29, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder. The Court found that Preston was procedurally barred from raising his federal sufficiency of the evidence claim, because he failed to raise that claim before the Florida Supreme Court. The Court found that Preston merely claimed that the evidence was insufficient under Florida law, which has a different sufficiency standard than federal law. The Court added that the sufficiency claim would not have merit, because premeditated murder could be inferred from the victim’s brutal wounds, and other evidence.

Ford: Mail Fraud and Filing False Claims not Multiplicitous

In U.S. v. Ford, No. 14-10381 (April 28, 2015), the Court affirmed the convictions and sentence of a defendant charged with mail fraud, aggravated identity theft, and filing false tax refund claims with the Internal Revenue Service. The Court rejected Ford’s multiplicity challenge to the indictment, explaining that it was not multiplicitous to charge both mail fraud and filing false claims. The Court pointed out that mail fraud involved use of the mails, while filing false claims did not. Also, filing false claims involves an agency of the United States, while mail fraud does not. The Court rejected Ford’s argument that the admission of evidence of past conduct violated Rule 404(b). The Court explained that much the past conduct was “inextricably intertwined” with the charged offenses, and therefore fell outside the scope of Rule 404(b). Turning to sentencing, the Court rejected the argument that the enhancement for the number of victims did not apply. The Court noted that the limitation for aggravated identity theft offenses applied only to the “transfer, possession, or use of a means of identification” – not, as here, to the number of victims. In addition, the limitation did not apply to the mail fraud convictions of which Ford stood convicted, in addition to aggravated identity theft.

Creel: No mens rea required for "distribution" enhancement for child pornography

In U.S. v. Creel, No. 14-12438 (April 21, 2015), the Court held that the 2-level “distribution” enhancement of U.S.S.G. § 2G2.2(b)(3)(F) does not include a mens rea element, and affirmed the 84-month sentence imposed on a defendant convicted of receipt of child pornography. Creel objected to the “distribution” enhancement on the ground that he did not know that other users of the peer-to-peer file sharing program could access the child pornography that he had downloaded to his computer. The Court found that the plain language of the Guideline commentary did not require knowledge. The Court pointed out that the commentary defined “distribution to a minor” as “knowing” distribution. The Court found that the fact that one definition included a mens rea and the other definition did not implied that no mens rea was required in the other one. The Court cited like holdings of two other circuits, and acknowledged conflict with the holdings of four other Circuits.

Hill: Guideline commentary inconsistent with computer use guideline

In U.S. v. Hill, No. 14-13383 (April 17, 2015), the Court affirmed the imposition of the two-level enhancement for use of a computer to solicit a person to engage in unlawful sexual activity with a minor, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), holding that the Guideline commentary was inconsistent with the Guideline and therefore did not govern the application of the enhancement. Hill pled guilty to conspiracy to engage in sex trafficking of minors. The Guidelines provide for a two-level enhancement if a defendant used a computer to “solicit a person to engage in prohibited sexual conduct with a minor.” The Guideline commentary, however, states that the enhancement applies only to use of a computer to communicate with a minor or a person exercising custody of the minor. Here, Hill used a computer for online ads offering minor girls for sex. Joining other Circuits to have so held, the Court held that the Guideline commentary’s limitation was inconsistent with the Guideline, and therefore not binding. The Court noted that the inconsistency was the result of a drafting error. Because Hill used his cellphone (which qualified as a “computer”) to place online ads, and his actions therefore fell “squarely within the language of the enhancement.”

Conner: Georgia Death Row inmate not intellectually disabled

In Conner v. GDCP Warden, No. 13-13928 (April 15, 2015), the Court affirmed the denial of habeas relief to a Georgia death-row inmate who claimed that he was intellectual disabled and therefore not subject to the death penalty. The Court held that the district court did not err, after holding an evidentiary hearing, in finding that Conner was not intellectually disabled. The Court noted the district court’s finding that Conner’s IQ hovered around 80, and otherwise did not have the lack of intellectual functioning, or lack of adaptive skills, associated with the intellectually disabled. Turning to Conner’s ineffective assistance of counsel claim, the Court noted that Conner himself instructed his lawyer at the sentencing phase not to present mitigation evidence. The Court found no support for that he would have allowed trial counsel to present mitigation evidence, and his willingness to do so at postconviction proceedings did not, without more, suffice. During the guilt phase of Conner’s trial, the prosecutor told the jury that he had practiced criminal law for seven years, that as district attorney he had prosecuted nine murder cases, but he had never sought the death penalty until Conner’s case. Conner’s counsel objected, and the trial court gave a curative instruction. The Georgia Supreme Court found the remark improper, but did not compel reversal. The Court did not find this resolution of this issue contrary to well-established law.

Albury: Sufficient evidence to support probable cause independent of unlawful search

In U.S. v. Albury, No. 12-15183 (April 9, 2015), the Court affirmed drug trafficking convictions rejecting a Fourth Amendment challenge to the search of a hotel room. The Court acknowledged that a search warrant was based in part on a search that violated the Fourth Amendment. But the Court found that independent of the unlawful search, the affidavit contained sufficient evidence to support a finding of probable cause. Albury had resided in a room at the hotel, prior to moving to another room where the unlawful search occurred. Inside the vacated room, the police found cocaine powder residue, two cookies of crack cocaine and baggies with cocaine residue. This information provided probable cause to search the new room, and the testimony that the police supervisor would have sought a warrant to search this room even without the information from the unlawfully searched room showed a warrant would have been sought even without the unlawful entry. The Court also rejected Albury’s challenge to the sufficiency of the evidence, finding that he exercised control over both hotel rooms in which contraband was found. He was the only guest renting the rooms, and the only person whose personal effects were found inside.

Asante: Affirming Gun Trafficking and Exporting Enhancements

In U.S. v. Asante, No. 13-15651 (April 6, 2015), the Court affirmed the imposition of firearms sentence enhancements. The Court rejected Asante’s challenge to the four-level enhancement, under USSG § 2K2.1(b)(5), for a firearms offender “engaged in the trafficking of firearms,” claiming there was no evidence that he knew his conduct would result in another’s unlawful possession, use or disposal of the firearms. The Court acknowledged that the government failed to show that Asante knew that the firearm would be transferred to individual with prior convictions. But the enhancement applied on the alternative ground that the firearms would be transferred to a person who would use them unlawfully. The Court found this could be inferred from the fact that Asante knew the firearms would be hidden in cars that were being shipped to Jamaica. The Court also rejected Asante’s challenge to the imposition of a four-level enhancement, under USSG § 2K2.1(b)(6)(A), for exporting firearms. Again, the fact that Asante knew the guns would be smuggled to Jamaica supported this enhancement. The Court rejected the argument that the imposition of both enhancements constituted “double counting.” The Court noted that knowing a firearm will be transferred to someone for unlawful use, and for export, are conceptually distinct. Finally, the Court rejected the argument that the district court should have redacted information from the PSI about threats Asante made, in a phone conversation from jail to his wife, against the prosecutor and the magistrate judge. Even if the rules do not require this information to be contained in the PSI, the district court had discretion to include it.

Alexander: Affirming conviction for selling cutting machines to Iran companies

In U.S. v. Alexander, No. 14-10253 (April 7, 2015), the Court affirmed a conviction for conspiring to sell cutting machines to companies in Iran, in violation of the International Emergency Economic Powers Act, 50 U.S.C. § 1705. The Court found that the district court did not abuse its discretion in denying Alexander’s request to take the deposition of a witness whose proposed testimony was “immaterial or cumulative.” In addition, one profered statement would have hearsay. And the witness was a fugitive from justice. The Court also found that the district court did not abuse its discretion in denying a motion for a mistrial after a juror complained that supporters of the defendant momentarily blocked her car in the parking lot. No one communicated with the juror, and the district court instructed the jury that there was no certainty who the people were, or had anything to do with the trial. The jury affirmed that they could remain impartial. Finally, the district court did not error when it explained to the jury, during the testimony of a witness, the legal standard for conspiracy, because the district court was not commenting on the evidence but clarifying the law. The district court also did not err when it explained the limited purpose of admitting testimony – credibility of witnesses – about a “feud” between Alexander and his business partners.

Dimitrovski: One-time event can involve ongoing, sophistidcated operation

In U.S. v. Dimitrovski, No. 14-12417 (April 2, 1015), the Court affirmed the imposition of a two-level enhancement under USSG § 2B1.1(b)(14)(B), which applies “if the offense involved an organized scheme to steal or to receive . . . goods or chattels that are part of a cargo shipment.” Dimitrovski argued that the enhancement should not apply because it was intended for an ongoing, sophisticated operation analogous to a “chop shop,” not to a one-time event where a defendant attempts to resell stolen items. Rejecting the argument, the Court found an “organized, ongoing, and sophisticated operation. The defendant purchased a stolen cargo, loaded it onto one of his trailers, and in one day’s time had it shipped to Miami. He was a “savvy” businessman in negotiating the price over several days, and wore latex gloves to conceal his activities. Dimitrovski told the informant that he could bring more loads in the future. “An offense may involve an ongoing, sophisticated operation even if it is committed only once.”

Sosa: Defendants knew of government cooperator

In U.S. v. Sosa, No. 13-14141 (April 3, 2015), the Court rejected the argument of Medicare fraud defendants that their guilty pleas were not voluntary because the government did not disclose until sentencing that the government could have stopped the fraud, but instead allowed the loss to grow for months with the participation of a government cooperator. Had they known of the government’s inaction, the defendants would have contested the amount of forfeiture. Rejecting this argument, the Court found that the defendants “knew that the doctor involved in their four-month long conspiracy was a government cooperator.” Defendants also claimed that the plea agreement only agreed to forfeiture of two houses, not cars. The Court found that placed in context, the agreements did not state that the house-forfeiture would fully satisfy the money judgment.

Symington: If agreed sentence is illegal, district court lacks authority to impose it

In U.S. v. Symington, No. 14-10482 (March 25, 2015), the Court held that the district court abused its discretion when it denied the defendant’s request to withdraw his guilty plea, when the plea agreement mistakenly stated that he would not be subject to the 15-year mandatory minimum of 18 U.S.C. § 924(e) (ACCA), and the district court so advised him at the plea colloquy. When the parties entered into the plea agreement, they mistakenly believed that Symington’s prior conviction for fleeing and eluding was a misdemeanor, not a felony, and he therefore did not qualify for ACCA’s 15-year mandatory minimum for offenders with three prior convictions. The district court told Symington at his plea colloquy that he was subject to a 10-year maximum. However, the PSI later determined that the prior fleeing and eluding conviction was a felony, and that Symington therefore qualified for ACCA’s 15-year mandatory minimum. Symington moved to withdraw his plea, but the district court denied this request – and imposed a 15-year sentence. The Court rejected Symington’s argument that he was entitled to specific performance of his plea agreement – a 10-year maximum sentence. The Court noted that because of ACCA’s mandatory 15-year minimum, a 10-year sentence would be “illegal”; “the district court lacked the authority to impose the unlawful sentence contained in the plea agreement.” The Court, however, agreed with Symington that he should be permitted to withdraw his plea, and vacated his judgment with directions to the district court that it permit Symington to withdraw his plea.

Jenkins: Adjudication withheld "conviction" certified to Florida Supreme Court

In U.S. v. Jenkins, No. 13-15874 (March 17, 2015), the Court certified to the Florida Supreme Court the question whether, under Florida law, a guilty plea for a felony for which adjudication was withheld qualifies as a “conviction.” Jenkins’ conviction for being a felon in possession of a firearm depended on whether his prior guilty plea with adjudication withheld to the Florida offense of possession of cocaine qualified as “conviction” under 18 U.S.C. § 922(g). The Court recognized its own prior precedent holding that a prior Florida conviction with adjudication withheld qualified as a conviction, but also recognized contrary indications from two lower appellate courts in Florida, and from language in Florida Supreme Court decisions. Faced with “conflicting commands,” the Court certified the legal question to the Florida Supreme Court.

Edmond: Vacating conviction where plea agreement based on unindicted crime

In U.S. v. Edmond, No. 13-14381 (March 16, 2015), the Court, on plain error review, reversed a conviction obtained pursuant to a plea agreement. The indictment charged Edmond with access device fraud and with aggravated identity theft. Edmond entered into a plea agreement. The plea agreement, however, incorrectly described the Count as to which Edmond agreed to plead guilty (it referred to a conspiracy offense, when the indictment referenced a possession offense), and misstated the statutory maximum penalty. The error that Edmond pled guilty to a crime for which he was not indicted was not discovered until after oral argument on appeal. The Court held that there was “plain error.” The district court violated Edmond’s constitutional rights by accepting a guilty plea for a crime not charged in the indictment. Because Edmond was now serving a sentence for this erroneous conviction, the error clearly affected the outcome of the proceedings.

Hollis: Protective sweep justifies search

In U.S. v. Hollis, No. 13-13780 (March 12, 2015), the Court held that evidence was discovered in plain view during a protective sweep incident to an arrest, and therefore rejected the defendant’s Fourth Amendment challenge. Without addressing the government’s argument that Hollis, as a mere “guest” in another’s apartment, had no expectation of privacy, the Court found that the search of the apartment was incident to Hollis’ arrest and a valid attempt to ensure that the apartment did not contain other dangerous persons. Here, the police had been told that the apartment was a “drug house,” and could draw the rational inference that persons inside might be armed. The police found drugs in plain view during the protective sweep, and this evidence was admissible. The Court also found no error in the district court’s decision that a proffered defense expert lacked the necessary expertise to testify about the sufficiency of a latent fingerprint, noting the witness’s lack of qualification in fingerprint comparison.

Rivera: Statements incapable of being true or false are not hearsay

In U.S. v. Rivera, No. 13-13125 (March 12, 2015), the Court affirmed convictions for murder for hire in violation of 18 U.S.C. § 1958. The Court rejected the argument that the statements by a third person – the wife of the hit-man-to-be – to the defendant in a recorded conversation should have been excluded as hearsay. The Court rejected the argument that statements by a person other than a defendant in a recorded conversation must be excluded as hearsay merely because those remarks occurred outside the courtroom. The Court explained that the wife’s statements were either non-assertive statements that are incapable of being true or false, or statements that were indisputably false. The statements were offered to show the effect they had on the defendant, and to provide context for his statements. As to one statement that was arguably offered for its truth, the defendant failed to seek a limiting instruction. The Court also rejected the argument that the wife of the hit-man-to-be should not have been permitted to give lay opinion testimony about her understanding of the substance of her conversation with the defendant. The Court noted that she was a participant in the conversation, and her testimony was helpful to the jury in clarifying a back-and-forth dialogue that contained abbreviated and unfinished sentences, and ambiguous references to events. The Court recognized that several times during cross-examination of the defendant, the prosecutor improperly asked whether other witnesses were lying. However, these “were-they-lying” questions did not prejudice the defendant, light of the substantial evidence of his guilt. Nonetheless, the court urged the United States Attorney’s offices in the Circuit “to do a better job of training their attorneys on this point.”

Davis: Okay to ask if witness was a "chaplain"

In U.S. v. Davis, No. 13-12436 (March 5, 2015), the Court affirmed a conviction for possessing an unregistered short-barreled shotgun in violation of 26 U.S.C. § 5861(d). Fed. R. Evid. 610 provides that evidence of a witness’s religious beliefs or opinions is not admissible to attach or support the witness’s credibility. The Court rejected the argument that the district court violated Rule 610 when it allowed the government to elicit from a police officer’s testimony the fact that he was employed as a “chaplain.” The Court noted that this did not inquire into the witness’s religious beliefs. Further, proving a witness’s job is not the same as attacking or supporting a witness’s credibility. The Court noted that a challenge to asking a witness about his position as a chaplain might arise under Fed. R. Evid. 403, but here the defense did not invoke this Rule. At trial, the defense requested a jury instruction that it is legitimate for defense counsel to attack the credibility of a police officer based on his or her interest in the outcome of the case. The Court agreed with the district court that there was no need for this instruction, and the standard instructions on credibility, though not controlling, were adequate. Finally, the Court rejected the challenge to giving a modified Allen charge to a deadlocked jury. The Court found no error in giving the charge in two installments, over time. The Court noted that the instruction was given after the jury reported its deadlock after 3 hours of deliberation, and that the court told the jury that if it worked through lunch and was still deadlocked it would be discharged.

Melton: Youthful death penalty issues not "debatable"

In Melton v. Sec., Fla. Dep’t of Corrections, No. 13-12967 (March 3, 2015) (2-1) (Martin, J., dissenting), the Court denied a motion for a certificate of appealability, finding the issues not “debatable.” Melton claimed that his prior conviction for a murder committed when he was under 18 years of age should not have been used as an aggravating factor for imposition of the death penalty. The Court noted that no Supreme Court precedent suggested that this might be the law, and the Florida Supreme Court’s rejection of this argument therefore did not violate “clearly established Federal law.” The Court also found no debatable issue in the claim that, even though Melton was over the age of 18 when he committed his capital offense, some of the factors of youth were still present, and should have been considered as mitigating factors.

Hernandez: Padilla applies even if after guilty plea

In Hernandez v. U.S., No. 13-10352 (March 2, 2015), the Court held that the district court abused its discretion in denying an evidentiary hearing to a defendant who claimed that he received ineffective assistance of counsel when she incorrectly advised him about the immigration consequences of pleading guilty to marihuana trafficking. The district court held that Padilla v. Kentucky, which held that counsel must inform her client whether his plea carries a risk of deportation, did not apply because the case was decided after Hernandez enter his plea. Reversing, the Court explained that the question was not whether defense counsel failed to raise an argument which later would prove meritorious, but whether counsel performed deficiently when she mis-advised Hernandez about the consequences of his guilty plea. Moreover, Hernandez alleged that he would have chosen to risk longer incarceration for the chance to avoid deportation. These facts, if true, would have proven that counsel performed deficiently, and prejudice. Hernandez was therefore entitled to an evidentiary hearing.

Everett: Request for DNA Sample is not "Interrogation"

In Everett v. Sec., Fla Dep’t of Corrections, No. 14-11857 (Feb. 27, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 2001 murder. The Court rejected the argument that the police violated Everett’s Fifth Amendment right to silence when, after he requested a lawyer, the police request his consent to obtain DNA samples. The Court noted that the right to silence merely requires the police to cease “interrogation.” The Court held that the Florida Supreme Court reasonably concluded that the request for DNA consent did not amount to “interrogation,” noting that this request is not reasonably likely to elicit an incriminating verbal response.

Bailey: Child Pornography Possession Indictment Sufficient

In U.S. v. Bailey, No. 14-10174 (Feb. 24, 2015), the Court rejected a challenge to the clarity of an indictment that charged sexual exploitation of a child, and possession of child pornography. Noting that challenges to the sufficiency of an indictment are reviewed only for “actual prejudice,” when raised, as here, for the first time on appeal, the Court pointed out that Bailey knew precisely which of four video images were charged in the first four counts of the indictment. The Court also rejected a challenge to a count of the indictment that failed to identify the pornographic image at issue. The Court noted that the indictment identified the computer and videotapes on which he had child pornography. Thus, Bailey had “ample notice” of the images. The Court also rejected the argument that a violation of 18 U.S.C. § 2251(a) requires that a minor actually masturbate in the visual depiction, pointing out that this statute merely requires that the defendant “induce” or “entice” the minor; “it does not require the effort to be successful.”

Kopp: Venue for failing to register as sex offender also lies in state where travel began

In U.S. v. Kopp, No. 14-12408 (Feb. 18, 2015), the Court affirmed (1) the denial of a motion to dismiss an indictment for improper venue, and (2) the sentence imposed following the revocation of supervised release. Kopp moved from Georgia to Florida, where he failed to register as a sex offender. He was convicted of this offense in Georgia, where he preserved the argument that venue should have been in Florida, not in Georgia. Rejecting this argument, the Court pointed out that venue for this offense could be in “any district” where the crime was “begun, continued, or completed.” Here, Kopp began his crime in Georgia, because his interstate journey started there. The Court also affirmed the imposition of a six-month upward variance on Kopp’s sentence for subsequently violating his supervised release, pointing to Kopp’s “long and violent history of crime.”

Roberts: Affirming Convictions and Sentences in Medicare Fraud

In U.S. v. Roberts, No. 12-16056 (Feb. 17, 2015), the Court affirmed convictions and sentences arising out of a multi-million dollar Medicare fraud that involved using chronic substance abusers, elderly patients with dementia, Haitian patients seeking immigration benefits, and paid patients to obtain payments from Medicare for purported mental health services. The Court rejected a number of challenges to the convictions, including the argument that the prosecutor’s allusion in closing argument to the possibility that defense counsel were aware of their clients’ guilt. The Court noted that the district court sustained an objection to this statement and gave a curative instruction. Turning to sentencing, the Court affirmed the imposition of the “mass marketing” two-level sentence enhancement of U.S.S.G. § 2B1.1(b)(2)(A)(ii). The Court noted that recruiters repeatedly targeted new patient populations to bring them to their fraudulent clinic for treatment. The Court also affirmed the imposition of the “conscious or reckless risk of death or serious bodily injury” under U.S.S.G. § 2B1.1(b)(13)(A). The Court noted that the clinic admitted elderly patients with dementia even though the clinic was not equipped to meet these patients’ needs. The Court further affirmed the imposition of the “vulnerable victim” enhancement under U.S.S.G. § 3A1.1(b)(1). The Court noted that the victims included elderly patients and substance abusers, who were vulnerable because of their need for treatment. The Court affirmed the imposition of an upward variance based on the district court’s finding that one defendant’s criminal history of I understated the seriousness of his criminal history. Finally, the Court rejected a challenge to the $9 million restitution award, affirming the district court’s finding that the clinic did not render any proper services to Medicare that could offset the restitution amount.

Holt: Single conspiracy had a "common goal"

In U.S. v. Holt, No. 13-10453 (Jan. 30, 2015), the Court affirmed convictions and sentences of defendants charged with conspiracy to distribute oxycodone and cocaine. The Court rejected the defendants’ argument that evidence should be suppressed based on an unreasonable length of time elapsed between traffic stops and the deployment of drug dogs, finding that 27 minutes for one stop and only a few minutes for another was not unreasonable. The Court also found that the police had reasonable, articulable suspicions that Hold was engaged in drug trafficking. The Court rejected the argument that the trial court’s admission in evidence of pre-indictment narcotics distribution was a “constructive amendment” of the indictment. The Court noted that this evidence helped explain why one defendant helped the others distribute drugs, and not broaden the possible bases for conviction. The Court also rejected the argument that the government proved multiple conspiracies, not a single conspiracy, finding that the defendants “operated toward a common goal to distribute cocaine and oxycodone in South Florida and Boston," and involved “a significant overlap of participants.” The Court further noted that the defendants did not demonstrate “substantial prejudice” from any variance, as evidenced by the fact that the jury returned different verdicts as to different defendants. The Court found no error in the district court’s admission of expert testimony by a DEA agent regarding the meanings of coded language used by the defendants in intercepted communications. The Court noted that the testimony helped thejury interpret the meaning of words “more accurately than a lay person.” The Court found no abuse of discretion in the trial court’s denial of a mid-trial motion for a recess to prepare to testify and obtain witnesses. The trial had been going on for weeks, and the defendant had received multiple warnings to be ready to present her case. Further, the defendant had shown a lack of diligence in failing to subpoena witnesses.