Eleventh Circuit Court of Appeals - Published Opinions

Thursday, September 07, 2017

Masino: Indictment Sufficiently Alleged Federal Gambling Offense Based on Florida Bingo Statute

In United States v. Masino, No. 16-15451 (Sept. 7, 2017) (William Pryor, Ed Carnes, Moore), the Court reversed the dismissal of an indictment charging a violation of the federal gambling statute.

The issue was whether an indictment alleging a violation of Florida's bingo and gambling statutes sufficiently alleged an element of the federal gambling statute--namely, that the business is an illegal gambling business, which turned on whether it "is a violation" of state law.  The Court concluded that it did, because there were at least some violations of Florida's bingo statute that could render the business an illegal gambling business under federal law.  For example, the business would be illegal if it allowed charities to sponsor the event without their direct involvement, or if it did not return all bingo proceeds to the players.  The Court therefore did not address whether Florida gambling statutes could serve as a basis for upholding the indictment.

One defendant cross-appealed regarding the court's failure to dismiss the count of the indictment in its entirety.  The Court, however, declined to exercise its discretion to consider that cross appeal under the doctrine of pendant appellate jurisdiction.

Focia: Rejecting Second Amendment Challenge to 922(a)(1) and (a)(5), and Upholding "Alternative Sentence"

In United States v. Focia, No. 15-15653 (Sept. 6, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court affirmed the convictions and sentence for dealing firearms without a federal license, in violation of 18 U.S.C. 922(a)(1)(A), and selling firearms to unlicensed residents of other states, in violation of 18 U.S.C. 922(a)(5).

The defendant challenged the sufficiency of the evidence on his 922(a)(5) convictions on two grounds.  First, he argued that the government failed to prove that he and the transferee were not residents of the same state.  But the Court identified various pieces of circumstantial evidence suggesting that he resided in Alabama, while the transferees resided in other states.  Second, he argued, for the first time on appeal, that the government failed to prove that he lacked a firearms license.  But the Court, applying a deferential standard, found that it did, relying on the defendant's own testimony.

The defendant challenged the jury instructions for the 922(a)(1)(A) conviction, arguing that the pattern instruction given allowed him to be convicted for conduct not criminalized under the statute.  The Court found that the statute was designed to criminalize the selling of guns as a business (whether as the sole means of income or as a side business), but not to criminalize sporadic selling or selling merely to improve or modify a personal collection.  The defendant's motivation was the test.  The Court agreed with the defendant that, by omitting the exclusion of "hobbyist" firearm dealing, the pattern instruction would allow the jury to convict a defendant for non-criminalized conduct.  It recommended that the instruction be modified to clarify that hobbyist activities are excluded.  However, the Court found the error harmless in this case, because the evidence reflected that the defendant was not a mere hobbyist, but rather was a savvy dealer who sold weapons on the Dark Web for profit.

Next, the defendant challenged the constitutionality of 922(a)(1) on the ground that it represented a "prior restraint" on his Second Amendment rights by criminalizing unlicensed firearms dealing.  The Court rejected that argument, finding that the First Amendment "prior restraint" doctrine does not apply to the Second Amendment, joining five other circuits.  

The Court also rejected the defendant's constitutional challenge to 922(a)(5), finding it less burdensome on Second Amendment rights than other statutes it had previously upheld.  This statute prohibited only the transfer of a firearm from an unlicensed person in one statute to an unlicensed person in another state, which, unlike other statutes previously upheld, did not completely prohibit the possession or acquisition of a firearm.  

Finally, the defendant raised three challenges to the calculation of his guideline range, but the Court found it unnecessary to address them.  Because the district court ruled that, even if those challenges were successful, he would have imposed the very same 51-month sentence, any guideline error was harmless.  That was so even though the 51-month sentence would have required an upward variance if the guideline challenges were valid.  The Court found that this alternative sentence was sufficiently justified and substantively reasonable under the 3553(a) factors.

Jeri: Failure to Continue Airport Trial in Light of Late Disclosure was Harmless Error

In United States v. Jeri, No. 16-11418 (Sept. 5, 2017) (Hull, Marcus, Clevenger), the Court upheld the defendant's drug-trafficking convictions.

The defendant first challenged the district court's denial of a motion to continue when the government, on the morning of trial, turned over a video taken at the airport showing the drugs removed from the defendant's luggage.  The Court agreed that the denial of a continuance was error and counseled more patience in the future.  But it found that the defendant "has not come close" to showing substantial or specific prejudice, because the video only showed the drugs after they were removed from the luggage.  Thus, they did not show that the drugs were removed only from the defendant's checked bags, as opposed to his carry on bag, and the video did not otherwise exculpate him.

The Court rejected the defendant's remaining arguments.  It rejected a Brady challenge to the government's late disclosure of the video on the ground that it was neither exculpatory nor material to the defense, and it rejected a due process challenge to the exclusion of the video at trial on similar grounds.  

The Court rejected the exclusion from evidence of controlled calls between the defendant and his handler on the ground that they were hearsay, irrelevant, and not admissible under the rule of completeness.  And, in any event, any error was harmless.  

The Court next rejected the defendant's argument that the court limited his cross examination of two government witnesses, finding that the exclusion was proper on hearsay grounds, and any error was harmless in any event.  

Next, the Court rejected the argument that a law-enforcement lay witness crossed the line into giving expert testimony by drawing on his experience interviewing drug couriers, and, again, it found that any error was harmless.  The Court also rejected the argument that the witness had opined on the ultimate issue in the case by opining that the defendant's interview answers were not truthful.  The Court also rejected an argument that a government witness impermissibly testified about drug-courier profiles, but rather testified only about street value, quantities, methods, and general drug mule techniques, etc..., and did not testify about the defendant's knowledge.

The Court rejected the argument that the court erred by giving a deliberate ignorance instruction.  It found that ample evidence supported the instruction.  It also found ample evidence of actual knowledge, and the court was permitted to give both instructions.

Finally, in light of the rulings above, the Court rejected the defendant's cumulative error argument.