Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 18, 2018

Hylor: Florida Attempted First-Degree Murder is a Violent Felony under the ACCA's Elements Clause

In Hylor v. United States, No. 17-10856 (July 18, 2018) (William Pryor, Jill Pryor, Restani), the Court held that Florida attempted first-degree murder was a "violent felony" under the elements clause of the Armed Career Criminal Act.

Relying on circuit precedent, the Court rejected the defendant's argument that murder by surreptitious poisoning would not satisfy the elements clause, because it is "capable" of causing pain or injury.  It was irrelevant that the offense was committed with indirect, rather than direct, force.  Also relying on circuit precedent, the Court found that attempting to commit murder had an attempted use of force as an element.  The Court also reiterated that, under circuit precedent, Florida aggravated assault and robbery were violent felonies.

Judge Jill Pryor concurred in the result.  Although bound by circuit precedent, she opined that the attempted murder offense should not satisfy the elements clause.  She disagreed with circuit precedent conflating an attempt to commit a violent felony with attempt to use physical force, arguing that this conflation rested on faulty logic: one could attempt to commit a violent crime without attempting to use physical force.

Wednesday, July 11, 2018

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

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

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

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

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

Friday, June 29, 2018

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

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

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

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

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

Thursday, June 28, 2018

Henderson: Upholding False-Statement Convictions by VA Employee

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

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

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

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

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

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

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

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

Wednesday, June 27, 2018

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

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

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

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

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

Wednesday, June 20, 2018

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

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

Tuesday, June 12, 2018

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

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

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

Friday, June 08, 2018

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

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

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

Thursday, June 07, 2018

Man: Upholding Arms Export Conspiracy Conviction/Sentence Over Multiple Challenges

In United States v. Man, No. 16-15635 (June 6, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed a conviction and sentence for conspiracy to export defense articles without approval, in violation of the Arms Control Export Act. 

First, the Court found the evidence was sufficient to support the conviction.  Sufficient evidence established that she entered into an unlawful agreement with a co-conspirator, and so it did not matter that a third-party rejected their export proposals.  Sufficient evidence established that the defendant and her co-conspirator willfully violated the Act because, although the government was required to prove that the defendants knew their actions violated a known legal duty rather prove a mere awareness that their actions were generally unlawful, the government met that heightened mens rea standard in this case.  And because sufficient evidence showed showed that she was predisposed to commit the offense, the Court rejected the defendant's argument that she was entrapped.

Second, the Court found no abuse of discretion in admitting evidence of conspirators' communications.  A transcript of a conversation among her co-conspirators was admissible under the hearsay exception for statements offered against the defendant made by her co-conspirator during and in furtherance of the conspiracy.  Emails sent to the defendant by an unidentified third party were also admissible under that same hearsay exception.  And communications between the defendant her co-conspirator were intrinsic to the charged conspiracy and thus were not barred by Rule 404(b).

Third, the Court found that the defendant's sentence was procedurally and substantively reasonable.  As to the former, the Court concluded that the district court did not clearly err by declining to award her a minor role reduction under USSG 3B1.2(a), because she played an essential role in the conspiracy as the sole intermediary, by helping plan and organize the crime, she understood the scope and structure of the activity, she stood to benefit from its success, and her reliance on her mental status was governed by a different guideline and unpersuasive in any event given her persistent, deliberate, and sophisticated communications with the co-conspirators.  Her 50-month sentence was not substantively unreasonable because, contrary to the defendant's argument, the district court did not rely on an impermissible factor--i.e., her Chinese national origin--because the court was entitled to reference her allegiance to China, which was relevant to the offense.

Finally, the Court found found no plain Brady error by the government's failure to provide the defendant with an email sent by one of her co-conspirators to another, which the defendant argued could have been used to impeach one of them at trial.  The Court, however, found that she knew about the email yet failed to exercise reasonable diligence in procuring it before trial.  And she failed to establish a reasonable probability that it would have changed the verdict because, if anything, it would have helped the government establish the conspiracy.

Monday, June 04, 2018

Ponton: Castro's Notice-and Warning Requirement Applies to Petitions Pre-Dating Castro

In Ponton v. Sec'y, Fla. Dep't of Corrs., No. 16-10683 (June 4, 2018) (Ed Carnes, Marcus, Ross), the Court held that the district court erroneously dismissed a state prisoner's 2254 habeas petition as an unauthorized "second or successive" petition.

Although the district court denied on the merits an earlier pro se petition back in 1988, the Court concluded that this denial did not trigger the statutory bar on unauthorized second or successive petitions.  That was because there was no indication that the district court notified the petitioner that it would re-characterize the pleading as a habeas petition and gave him an opportunity to withdraw it, as required by the Supreme Court's decision in Castro.  Although Castro was not decided until 2003, the Court concluded that Castro's notice-and-warning requirement applied to petitions filed before that decision was issued.  And, although the petitioner here filed a number of other federal pleadings, they were all dismissed without prejudice or as unauthorized second or successive petitions, and thus also did not trigger the bar on second or successive petitions.

Campbell: No Reasonable Expectation of Privacy in a Home Used as the Base of Drug Trafficking Operation

In Campbell v. United States, No. 15-13261 (June 4, 2018) (Ed Carnes, Hull, Julie Carnes) (per curiam), the Court affirmed the denial of a 2255 motion alleging ineffective assistance of pre-trial counsel in connection with a motion to suppress.

The Court first concluded that counsel's performance was not deficient in investigating and litigating the suppression motion.  The specific facts of the case showed that counsel met with the client on multiple occasions to discuss strategy, complied with the client's request to file a motion, and competently argued the facts and the law on Fourth Amendment standing.  Although counsel might have investigated more thoroughly the client's connection to the residence, and although he did not call the client and other people as witnesses at the hearing, counsel could have reasonably believed that he had enough information to establish standing, and the Court does not second guess strategic decisions about which witnesses to call.

The Court also concluded that the movant failed to establish prejudice because he could not establish a meritorious Fourth Amendment claim, since he lacked a reasonable expectation of privacy in the residence as a house guest.  That was so because he was using the residence for a commercial purpose -- as the base of a marijuana trafficking operation -- and was using it for that purpose when he was arrested.  That he also hung out and kept personal possessions there was not sufficient to transform his business relationship with the house into a social one. 

Friday, June 01, 2018

Obando: A Flag Painted on the Side of a Vessel Does not "Fly" for Purposes of the MDLEA

In United States v. Obando, et al., No. 17-11202 (June 1, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed the defendants' Title 46 convictions.

On appeal, the main issue was whether a flag painted on the side of a vessel was "flying" for purposes of making a claim of nationality under the MDLEA.  The Court concluded that it was not.  It relied on the "ordinary meaning" of the term "fly," and found that this meaning made sense in the maritime context, citing maritime treatises and protocols.  The Court also found that other flag-related statutes supported that "flying" was a particular method of displaying a flag, and the MDLEA used that word instead of "displaying."  The Court rejected the defendants' reliance on: a Coast Guard form; idioms; statements from its earlier opinions; a district court decision supporting their functionalist interpretation; the argument that a textual approach would lead to absurd results; international law; and the rule of lenity.

The Court also rejected the defendants' alternative jurisdictional arguments.  First, it rejected the argument that a crew member made a verbal claim of registry, as that argument was contrary to a factual stipulation that no such claim was made.  Second, it rejected their argument that, by contacting Ecuador, the government was estopped from asserting the absence of any claim of registry.  Third, it rejected their argument that the coast guard acted in bad faith by knowingly contacting the wrong country.

Judge Black concurred in full, but noted that there was an additional ground for affirmance: there was no claim of nationality attributable to the vessel's master.  So even if the painted flag could otherwise support a claim of registry, it was insufficient without some claim by the master; the vessel could not speak for itself.

Thursday, May 24, 2018

Scott: Second or Successive Brady Claims are Always Subject to the Gatekeeping Criteria

In Scott v. United States, Nos. 15-11377, 16-11950 (May 23, 2018) (Rosenbaum, Jill Pryor, Bartle), the Court held that second-or-successive Brady claims are always subject to the gatekeeping criteria in 2255(h), even if the petitioner could not have reasonably discovered the basis of the claim sooner, and there is a reasonable probability that timely disclosure would have resulted in an acquittal.

The Court reluctantly determined that this outcome was dictated by its prior precedent, which reached that same conclusion in the state-prisoner context of 2254.  However, in a lengthy analysis, the Court opined that this prior precedent was incorrect, conflicted with Supreme Court precedent and the Suspension Clause, and improperly rewarded the government for its unfair prosecution, thereby undermining the justice system.  In the Court's view, an actionable Brady claim that a diligent petitioner could not have reasonably been expected to discover should not be considered "second or successive," and thus should not be subject to the stringent gatekeeping criteria.  The panel urged the full Court to convene en banc in order to reconsider its prior precedent to the contrary.  The Court also concluded that counsel was not ineffective for failing to investigate further after taking the government at its word that it had produced all Brady material; the Court, however, did not foreclose the possibility of ineffective assistance of counsel where obvious red flags call the government's assurance into question.

Wednesday, May 23, 2018

Touset: No Reasonable Suspicion Required for Forensic Electronic Searches at the Border, Splitting with Two Other Circuits

In United States v. Touset, No. 17-11561 (May 23, 2018) (William Pryor, Julie Carnes, Corrigan), the Court held that reasonable suspicion is not required for a forensic search of an electronic device at the border, and, alternatively, reasonable suspicion existed.

The Court saw "no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property."  The Court refused to afford electronic devices "special treatment" just "because so many people now own them or because they can store vast quantities of records or effects," as border agents continued to bear the responsibility of preventing the importation of contraband regardless of advances in technology.  Only highly intrusive border searches of a person's body required suspicion, and that reasoning did not apply to electronic devices.  The Court acknowledged that the Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of electronic devices at the border, but the Court was "unpersuaded" by them.  The Court's recent decision in Vergara made clear that the Supreme Court's decision in Riley does not apply to border searches.  And it failed to see why a traveler's privacy should be given greater weight than the interest in protecting territorial sovereignty, as the Fourth and Ninth Circuits have suggested.  The Court suggested that doing so would "create special protection" for child pornography offenses.  The Court also suggested that it was up to Congress to create additional protections beyond what the Fourth Amendment required, and judicial restraint was especially important in this context.

Alternatively, the Court concluded that there was reasonable suspicion based on three separate payments to an account associated with a Philippine phone number, which was associated with an email account containing an image of child pornography.  Although those payments occurred over a year earlier, the Court joined other circuits rejecting staleness challenges in the child pornography context, where deleted filed can remain on electronic devices.

Judge Corrigan concurred, but declined to join the core holding because the government argued that no reasonable suspicion was required for the first time on appeal, and it was unnecessary to reach that issue given the existence of reasonable suspicion.

Mitrovic: Upholding Fraudulent Naturalization Conviction of Former Serbian Prison Guard

In United States v. Mitrovic, No. 16-16162 (May 23, 2018) (Corrigan (M.D. Fla.), William Pryor, Julie Carnes), the Court affirmed the defendant's conviction for unlawful procurement of naturalization.

At trial, the central dispute was whether the defendant served as a guard at a prison camp in Serbia where ethnic cleansing occurred in the 1990s, or whether he was instead forcibly conscripted into forced labor.  On appeal, he argued that the district court violated his right to a complete defense under Chambers v. Mississippi by refusing to admit hearsay statements of recalcitrant witnesses.  They were prisoners at the camp for a time period longer than defense witnesses who testified at trial, and they had initially stated that they had not seen him working as a guard, but later refused to be deposed because they were Muslims and did not want to be perceived as helping a Serb.

First, the Court ruled that application of the hearsay rules were neither arbitrary nor disproportionate, and did not violate the defendant's right to present a complete defense or infringe upon a weighty interest of the accused.  Rather, it only prevented him from increasing the quantity of witnesses who would tell the jury what other witnesses had already said.  The Court continued that, even if the correct application of the rules of evidence could violate Chambers, the hearsay statements here were different than the evidence in Chambers: they were merely helpful, not exculpatory; they were made 20 years after the events; they were not as compelling; and the declarants were not available for cross examination.  Only one of the factors slightly weighed in the defendant's favor -- i.e., the statements were possibly made against a social interest, which was an exception to hearsay in several states.  Thus, the Court concluded that Chambers was distinguishable.

Second, the Court rejected the defendant's argument that the district court erred by refusing to take judicial notice of the Geneva Convention to show that Bosnia would not have submitted documentation that it conscripted him into forced labor.  The Court assumed without deciding that the Geneva Convention could be judicially noticed, but found that the district court did not err by concluding that its probative value was substantially outweighed by the possibility of confusing the jury under Rule 403.  It was unclear whether the Geneva Convention applied, the jury would not know how to apply it, the defendant was still able to argue that he was conscripted into forced labor, and the Convention would not establish that a particular document was false.

Tuesday, May 15, 2018

Knowles: Erroneous Exclusion of Lay Identification Testimony Was Harmless

In United States v. Knowles, No. 16-16802 (May 15, 2018) (Jordan, Martin, Ginsburg), the Court concluded that the district court erred by excluding lay identification testimony, but it found the error harmless.

The district court had admitted under Rule 701 identification testimony from a government witness.  The Court rejected the defendant's argument that the testimony should have been excluded under Rule 403 because the witness was a law enforcement official who participated in the vehicle stop uncovering the incriminating evidence.  The official's familiarity with the defendant -- and thus the basis of his identification testimony -- was based in part on his observations of her during the traffic stop, and so it did not reveal any past or collateral contact by the defendant with the criminal justice system.

The Court, however, agreed with the defense that the district court erred by excluding defense identification testimony under Rule 701.  The Court applied the "equal treatment" principle used in the context of expert witnesses to the context of lay witnesses.  The defense witness was even more familiar with the defendant than the government's witness, and so he too should have been permitted to testify on the issue of identification.  And Rule 403 would not have barred that testimony, even though he had also served as an expert witness for the defense.  However, the Court concluded that the exclusion of his lay testimony was harmless, because the defense presented two former co-workers who provided identification testimony that would have rendered the excluded testimony cumulative.

Tuesday, April 24, 2018

Whitman: Upholding Bribery Conviction and Sentence

In United States v. Whitman, No. 15-14846 (Apr. 24, 2018) (William Pryor, Julie Carnes, Antoon), the Court upheld convictions and sentences for bribery, wire fraud, theft, and obstruction stemming the fraudulent procurement of government contracts.

One defendant challenged his bribery conviction on the ground that the court erred by failing to instruct the jury that giving illegal gratuities was a lesser-included offense of bribery.  The Court rejected that argument because the defendant advanced an exculpatory defense predicated on extortion that, if believed, would have required the jury to acquit him of both bribery and giving illegal gratuities.  The evidence thus would not have permitted the jury to acquit him of bribery but convict of him giving illegal gratuities.  As a result, the Court found it unnecessary to decide whether the latter was a lesser included offense of the former.

Another defendant challenged his sentence on the ground that he was not responsible for the entire loss amount attributable to the criminal scheme.  The Court rejected his argument that the actions of other government employees were taken independently and not the product of any criminal agreement.  The record permitted the district court to infer that he agreed to participate in a jointly undertaken criminal scheme.  It did not matter that the agreement was "implicit" or that he did not know every detail of the others' participation; it sufficed that he was fully aware of the objective and was actively involved in it.

Thursday, April 19, 2018

Shabazz: Upholding Tax-Fraud Related Convictions and Sentences Over Numerous Challenges

In United States v. Shabazz, No. 17-10639 (Apr. 18, 2017) (William Pryor, Julie Carnes, Corrigan), the Court affirmed the defendant's tax-fraud convictions and sentence over a number of challenges.

First, the Court rejected the defendant's challenge to the admission of evidence from his wallet, because the search-warrant affidavit established probable cause to search the home where the wallet was found; and because the wallet was not outside the scope of the warrant, which authorized the agents to search for debit cards, among other things.

Second, the Court found that the district court did not clearly err by crediting the officers' testimony that they gave the defendant Miranda warnings, even though there was no corroborating evidence of the waiver.

Third, the Court found that the district court did not abuse its discretion by admitting evidence of uncharged tax returns because they were inextricably intertwined with the charged conduct, or by admitting photographs of the defendant and his wife with large sums of money in light of their financial circumstances.

Fourth, the Court concluded that the defendant waived his constitutional right to wear street clothes at trial by expressly declining the court's suggestion that he change into a suit and attempting to use his prison garb to his strategic advantage.

Fifth, the Court found no error when the district court instructed the jury on a Pinkerton theory of conspiracy, because there was ample evidence that the defendant joined a conspiracy and that the charged substantive offenses were reasonably foreseeable consequences of the conspiracy.

Sixth, the Court concluded that the evidence was sufficient to support the convictions, rejecting the defendant's argument that the evidence was insufficient to prove a conspiracy or, for the aggravated identity count, insufficient to prove that he knew the means of identification belonged to real people.

Lastly, as to the sentence, the Court concluded that: a) the district court did not clearly err by imposing a four-level minor-role enhancement, because there was substantial evidence that the defendant managed the scheme, there were at least five participants, and the court did not reverse the burden of proof; b) the district court did not clearly err by calculating the intended loss amount, upholding a methodology that considered losses from tax returns that used a common address, even though the defendant did not file them himself; and c) the 277-month sentence, the result of a downward variance, was substantively reasonable.

Wednesday, April 11, 2018

Suarez: Rejecting Challenge to GPS Search and Upholding Sua Sponte Obstruction Enhancement

In United States v. Suarez, No. 16-16946 (Tjoflat, William Pryor, Anderson) (per curiam), the Court upheld the defendant's alien smuggling convictions and sentence.

As to the conviction, the defendant argued that coast guard officials violated his Fourth Amendment rights by searching the GPS device on his boat.  In rejecting that argument, the Court relied heavily on the  terms of a consent form that he signed, which authorized a complete search of the boat for any law enforcement purpose.  That consent, the Court reasoned, included searching the storage compartment of the boat where the GPS was located and powering up the GPS once it was found.

As to the sentence, the Court rejected the defendant's challenge to the obstruction of justice enhancement under U.S.S.G 3C1.1.  First, the Court rejected the defendant's argument that the court violated his due process rights by imposing the enhancement sua sponte, because a witness's perjured testimony at trial, coupled with the existence of the Guideline itself, put him on notice of a potential enhancement.  The Court also found that the court did not refuse to hear from defense counsel on the enhancement; counsel simply failed to argue the point.

The Court then found no clear error in application of the enhancement, because the defendant was aware of the witnesses' potential perjurious testimony in advance and thus suborned perjury.  That finding was not clearly erroneous because, even though the government did not seek the enhancement, it was based on evidence adduced at trial.

Thursday, April 05, 2018

Carroll: Reversing Child Pornography Conviction for Insufficient Knowledge of Peer to Peer Distribution

In United States v. Carroll, No. 16-16652 (Apr. 5, 2018) (Wilson, Dubina, Goldberg), the Court affirmed in part and reversed in part the defendant's child pornography convictions.

First, the Court concluded that a warrant affidavit supported the conclusion that there was probable cause to believe that child pornography would be found in the defendant's home.  The affiant explained how peer to peer file sharing worked and how the officers used the program to identify the defendant's IP address.  The Court rejected the defendant's argument that the issuing magistrate was required to personally review the pornographic material.  The Court also rejected the defendant's argument that the warrant failed to satisfy the particularity requirement, because it detailed the types of electronic items to be seized in the home.

Second, the Court found the evidence sufficient to uphold the defendant's possession conviction, because there was evidence that he knowingly possessed the images: although the files were discovered in an unallocated space on his computer and were deleted, there was evidence that he regularly and manually downloaded files to his computer over an 11-month period. 

However, the Court concluded concluded that the evidence was insufficient to sustain the defendant's distribution conviction, because there was no evidence that he knew he was sharing child pornography when they were automatically placed in a shared folder.  There was nothing in the record to indicate that he was aware that the items in this folder were automatically distributed to the peer to peer network, and the mere fact that he used a peer to peer program was insufficient by itself.  The record did not include any indication that the program prompted the defendant to chose to share downloaded files, enabled a sharing function, or accepted a licensing agreement that involved setting up a shared folder.

Finally, the Court affirmed sentencing enhancements for possession of more than 600 images and for possessing sadistic or masochistic conduct.  As to the former, the Court counted files located in the unallocated location because the defendant manually downloaded them.  As to the latter, the offenses depicted vaginal and anal penetration of young girls, and that sufficed.  And this was not double counting because they were not fully accounted for in the base offense level.

Maxi: Drug Trafficking Convictions Affirmed Over Various Suppression Challenges

In United States v. Maxi, No. 15-13182 (Apr. 5, 2018) (Martin, Jordan, Walker), the Court affirmed the defendants' drug-trafficking convictions.

As to one defendant, the Court affirmed the denial of his motion to suppress the search of a duplex.  The Court first concluded that the defendant had standing to challenge the search because, despite contradictory information and testimony, he paid rent, had a key, had been living there intermittently for three to six months, and kept some important papers there.  Because he was effectively a subtenant, not merely an overnight guest, he had a reasonable expectation of privacy.

The Court then accepted the defendant's argument that the police impermissibly entered the curtilage of the home, because they did so with the tactical purpose of securing the duplex and detaining anyone inside, which exceeded the implied license granted to the public and that of a knock and talk.  However, the Court concluded that the officer's unconstitutional violation pertained only to the manner of their approach, not the actual entry into the curtilage, and it did not result in the production of evidence that would not have otherwise been discovered had an officer conduct a permissible knock and talk.

The Court rejected the defendant's argument that he did not open the door voluntarily, because the district court found that he did not open the door in response to a show of authority.

The Court rejected his argument that the police committed another Fourth Amendment violation by breaking down the metal security gate and arresting him in his home without a warrant, because the arrest was supported by both probable cause and exigent circumstances: an officer saw a substantial quantity of drugs in the home and had received a tip that several guns were located there; and there was a risk that evidence would be destroyed if they left the duplex to get a warrant.

The Court next concluded that, even if the subsequent protective sweep and walk-through were illegal (which it noted was problematic because the home had already been secured), the evidence was nonetheless admissible under the independent source doctrine.

The Court then rejected the other defendant's two arguments.  First, it rejected his argument that there was no "necessity" for a wiretap because other investigative methods were available: the supporting affidavit stated that search warrants, confidential sources, pen registers, and visual surveillance had not allowed the police to track drug deliveries; undercover agents were unlikely to penetrate the group; and the conspirators were wary of surveillance.  The Court also rejected the argument that the affidavit omitted material facts--namely, that the confidential source was a former lieutenant in a drug organization and a lessee on one of the stash houses--because the defendant failed to show that the omissions were intentional or reckless, or that their inclusion would have undermined a finding of probable cause.

Lastly, the Court concluded that there was sufficient evidence to support a flight instruction.

Monday, April 02, 2018

Lee: Florida Robbery Remains a Violent Felony For Now, But Judges Disagree with Circuit Precedent

In United States v. Lee, No. 16-16590 (Apr. 2, 2018) (Jordan, Martin, Ginsburg) (per curiam), the Court re-affirmed its many circuit precedents holding that Florida robbery -- of all varieties and all years of conviction -- satisfies the elements clause of the ACCA and Sentencing Guidelines.  

The panel recognized that the defendant's contrary arguments "have some force," and it "might well agree with them" were it writing on a clean slate, citing Judge Martin's earlier concurrence in Seabrooks.  However, the Court was bound by its prior panel precedents, even if they were wrong, poorly reasoned, or failed to properly apply the law.

Judge Jordan concurred, opining that the circuit's precedents were wrong, because robbery by "putting in fear" and robbery by "force" in Florida did not necessarily require the use, attempted use, or threatened use of violent force.  He concluded: " When we wrongly decided in Dowd, and then Lockley, that Florida robbery is categorically a violent felony under the elements clauses of the ACCA and the career offender provision of the Sentencing Guidelines, we dug ourselves a hole. We have since made that hole a trench by adhering to those decisions without analyzing Florida law. Hopefully one day we will take a fresh look at the issue."  He might just get his wish: the Supreme Court today granted review in Stokeling to decide this very question.

Harris: Upholding Obstruction and Witness Tampering Convictions Over Various Evidentiary Challenges

In United States v. Harris, No. 16-17646 (Jill Pryor, Hull, Proctor) (Apr. 2, 2018), the Court affirmed the defendant's witness tampering and obstruction convictions over four evidentiary challenges.

First, the Court rejected the defendant's Rule 403 argument that it was unduly prejudicial for the government to introduce evidence of a murder for which she was never charged, because that evidence was highly probative of the obstruction charge and necessary to provide the jury with necessary context about it.  The Court also found that the admission of five gruesome and inflammatory photographs of the murder was probative and did not carry an impermissibly high risk of inflaming the jury.

Second, the Court rejected challenges to the admission of hearsay evidence, because the statements were not offered to prove the truth of the matter asserted but rather to show its motivational effect on others.  The Court also rejected a Rule 403 challenge to that evidence because it had probative value to the obstruction charge and thus its unfair prejudice did not substantially outweigh its probative value.

Third, the Court found that certain statements satisfied the co-conspirator exception to the hearsay rule in Rule 801(d)(2)(E).  The Court rejected the defendant's argument that the statement were not made during the course of the conspiracy but were merely narrative declarations.  The Court again rejected a Rule 403 challenge to their admission.

Finally, the Court found that the court properly admitted a protective order because it was relevant and probative of the witness-tampering charge.  Although the defendant was unaware of the protective order, its existence showed that the witnesses faced substantial risks and therefore reasonably could have interpreted the defendant's communications as a threat.

Friday, March 30, 2018

Machado: No Speedy Trial Violation Despite Five-Year Delay Between Indictment and Arrest, but Plain Sentencing Error for Failing to Personally Afford Defendant Opportunity to Allocute

In United States v. Machado, No. 16-16449 (Mar. 30, 2018) (Hull, Marcus, Anderson), the Court upheld the defendant's wire fraud convictions after a trial but vacated his sentence.

Applying the four Barker v. Wingo factors, the Court first found no speedy trial violation stemming from the five-year delay between his indictment and arrest.  Focusing on the disputed second factor, the Court concluded that the government made good-faith, diligent efforts to locate and arrest the defendant after he left the country for Brazil without telling the agent.  The agent visited his home and left a business card, spoke to the defendant and his wife, and periodically checked databases, and the defendant periodically returned to the US under an alias, lived at a different address, and never informed the agent.  The government was not required to seek extradition in this particular case despite the existence of a treaty.  Because all three of the factors did not weigh heavily in the defendant's favor, he was required to show actual prejudice from the delay, and the Court found no such prejudice from his conclusory and speculative inability to locate non-specified persons and records.

Next, the Court concluded that the evidence was sufficient to support the convictions because he had the requisite intent to defraud.   He made material misstatements on loan applications, and there was sufficient evidence that the defendant knew what he was signing even though he was a non-English speaker, including the facts that his English-speaking wife was present and the financial figures were wildly inconsistent with his means.

The Court next concluded that the district court did not abuse its discretion by excluding defense evidence of a federal indictment against the mortgage agent.  That indictment was irrelevant to the current charges because the agent was not a witness or co-defendant in the present case, the charges against him were wholly unrelated to the current charges, the charges involved personal loans that the agent sought for himself not someone else, and the charges against him post-dated the charged offense.  And, in any event, the Court noted that an indictment alone was not evidence of the agent's guilt and was thus likely to confuse the jury.

Despite affirming the convictions, the Court nonetheless vacated the defendant's sentence because the district court plainly erred by failing to afford him the right to allocute.  Although the district court asked defense counsel if the defendant wished to make a statement, the court failed to address the defendant personally.  And it was no excuse that the defendant was using an interpreter.  Because the defendant did not receive the lowest possible sentence, the Court presumed prejudice and vacated the sentence and remanded for allocution. 

Angulo: Court Affirms Title 46 Convictions Over Numerous Trial Objections

In United States v. Angulo Mosquera, et al., No. 16-10261 (Mar. 30, 2018) (Marcus, Martin, Newsom), the Court affirmed the defendants title 46 convictions after a jury trial.

First, the Court rejected the several of the defendants' argument that the court abused its discretion by refusing to sever their trial from that of defendant Angulo's because Angulo intended to introduce polygraph testimony that would prejudice them.  The Court found that they failed to show that there was any likelihood of, or actual, impermissible prejudice from the polygraph evidence. 

Second, the Court rejected the same defendants' argument that the court erred by failing to timely notify them of the pretrial evidentiary about the admissibility of Angulo's polygraph evidence.  The Court did not decide whether they had a right to be present at all evidentiary hearings concerning all of the defendants; instead, it held only that the court did not commit plain error by failing notify the defendants of a pretrial hearing that pertained solely to one of the other defendants, that did not pertain to their guilt or innocence, and that did not result in a binding ruling at that time. 

Third, the Court rejected the defendants' argument that the government committed a discovery violation by failing to turn over a report about Angulo's earlier detention in connection with a different cocaine-smuggling boat, and then asking him about the report on cross examination.  The Court reasoned that, although the government did not dispute that there was a discovery violation, the court properly limited the questioning to information that had been disclosed to the defendants by other means, Angulo did not seek any further relief at trial, and no prejudice had been shown.

Fourth, the Court rejected the defendants' argument that there was error from the prosecutor asking Angulo whether he was a "load guard," because the prosecutor had sufficient reason to ask that question based on the evidence, and any error would have been harmless.

Fifth, the Court rejected the defendants' argument that the prosecutor, on re-direct of a testifying co-conspirator, impermissibly used an agent's report of an interview with that witness.  The Court declined to address whether use of the report was permissible under the rule of completeness because there was no prejudice and nothing contributing to cumulative error.  The Court also found no abuse of discretion in permitting the prosecutor to have a few sentences of the English report read to the witness in Spanish in order to refresh his memory.

Sixth, the Court found no error in refusing to give a "blind mule" instruction to the jury.  That requested instruction was unnecessarily repetitive given the court's substantial instructions on "knowing" and "willful."

As to sentencing, the Court concluded that two of the defendants' 235-month sentences were not substantively unreasonable.  One of the defendants received a downward variance, and the other defendant received a sentence at the low-end of the guideline range.

Judge Martin concurred in the judgment, opining that the case was closer than the majority portrayed it.  First, she expressed concern about the spillover effect of the polygraph evidence.  Second, although the majority did not decide the issue, she rejected, as inconsistent with the record, the government's rule of completeness argument to support use of the agent's report; she said that the government should not have made the argument.  Finally, she disagreed with the majority that Angulo was not prejudiced by the prosecution's use of the undisclosed report about the earlier drug-trafficking incident, and its unsupported characterization of him as a "load guard." 

Thursday, March 29, 2018

St. Amour: It's a Crime to Modify an Airplane Fuel Tank Without Approval Even if Flight is not Imminent

In United States v. St. Amour, No. 17-13352 (Mar. 29, 2018) (per curiam) (Tjoflat, Martin, Jill Pryor), the Court upheld the defendant's conviction for operating an aircraft with an unapproved fuel system.

The Court rejected the defendant's argument that the term "operates an aircraft" only covered actions during or imminent to flight, and thus did not cover the defendant's conduct of merely taxiing and refueling the plane for a flight on the following day.  Relying on statutory and regulatory definitions, the safety purpose of the statute, and decisions by administrative agencies, the Court concluded that the term "operate" encompassed the use of an aircraft of the ground--including the starting, taxiing, and parking of an aircraft--so long as the use was preparatory or incident to flight.  No strict temporal relationship between the use of the aircraft and flight was required.

Thursday, March 22, 2018

Johnson: Officers Exceeded Lawful Scope of Pat Down by Reaching into Pocket to Seize Ammunition and Holster

In United States v. Johnson, No. 16-15690 (Duffey (N.D. Ga.), Jordan, Jill Pryor), the Court reversed the denial of the motion to suppress evidence obtained during a Terry stop.

The Court first concluded that there was reasonable suspicion to justify the pat down of the defendant.  Officers had received a report of a burglary around 4am in a high-crime area, the defendant fit the description of the burglar and was the only person in the area, and the officers reasonably believed that he posed a threat to safety, since burglaries often involve weapons.

The Court, however, concluded that the officers exceeded the lawful scope of the pat down by reaching into the defendant's front pocket in order to retrieve a single round of ammunition and a nylon holster.  That was so because pat downs under Terry are limited to determine whether the defendant has a weapon or contraband.  Here, there was no dispute that the officer did not believe the objects to be contraband or a weapon.  The Court rejected the government's argument that it could retrieve any item identified during a garment pat down.  The Court ultimately held that, on the particular facts of the case, the presence of a single round of ammunition--without facts supporting the presence, or reasonable expectation of the presence, of a firearm--was insufficient to justify the seizure of the bullet and holster from the defendant's pocket.

Thursday, March 15, 2018

In re Welch: SOS Denied Because Alabama Robbery and First Degree Assault Satisfy the Elements Clause

In In re Welch, No. 18-10592 (Mar. 15, 2018) (Ed Carnes, William Pryor, Hull) (per curiam), the Court denied a pro se application for leave to file a successive Johnson 2255 motion to vacate his ACCA sentence of life.

In denying the application, the Court did not consider whether the successive 2255 motion would be timely.  Instead, it denied the application because the petitioner would still have three violent felonies under the elements clause.  First, it held that his conviction for Alabama first degree robbery satisfied the elements clause, because it required force with the intent to overcome physical resistance.  For support, the Court cited its decision in Fritts holding that Florida robbery satisfied the elements clause.

Second, it held that his two convictions for Alabama first degree assault also satisfied the elements clause.  Because the statute was divisible, the Court applied the modified categorical approach, which the Court noted permitted consideration of undisputed PSI facts.  The indictments, plea colloquy, and undisputed PSI facts reflected that his assault convictions were for intentionally causing serious physical injury by means of a deadly weapon or dangerous instrument.  And the Court concluded that the "serious physical injury" element necessarily satisfied the elements clause under Curtis Johnson.

Vergara: Forensic Cell Phone Searches at the Border Do not Require Warrants or Probable Cause

In United States v. Vergara, No. 16-15059 (Mar. 15, 2018) (William Pryor, Jill Pryor, Clevenger), the Court upheld child pornography convictions following the warrantless manual and forensic search of the defendant's cell phones at the border.

The Court held that border searches do not require either a warrant or probable cause, but rather are subject to review for reasonableness.  The Court rejected the defendant's argument that the Supreme Court's decision in Riley v. California required a warrant for the forensic search, reasoning that Riley was limited only to searches incident to arrest and did not apply to border searches.  At the border, the highest possible standard for a search is reasonable suspicion, and the defendant did not challenge the district court's conclusion that reasonable suspicion existed for the search of his phones.  So the Court did not address whether reasonable suspicion was required or whether reasonable suspicion in fact existed.

Judge Jill Pryor dissented, disagreeing with the majority's dismissal of the significant privacy interests implicated by cell phone searches.  She acknowledged that Riley did not involve a border search, and the issue was one of first impression post-Riley.  But, in light of Riley, her weighing of the government's heightened interest at the border with the defendant's privacy interests led her to conclude that a forensic search of a cell phone at the border required a warrant supported by probable cause.

Friday, March 09, 2018

Nelson: No Deprivation of Counsel By Precluding Conferral on Ongoing Defendant Testimony

In United States v. Nelson, No. 16-12453 (Newsom, Marcus, Moore), the Court upheld the defendant's mail and wire-fraud convictions.

On appeal, the defendant argued that the district court violated his Sixth Amendment right to assistance of counsel.  The district court recessed the trial for the evening while the defendant's testimony was ongoing.  Defense counsel asked the court if he was permitted to speak to the client during the recess "about matters other than his [ongoing] testimony."  The court responded affirmatively, telling counsel that he could speak to the client about anything other than his testimony.  Given that defense counsel had himself invited that limitation, there was no objection about it.  And, more importantly, there was no indication that the defendant or defense counsel actually wanted to confer about the defendant's testimony.  For that reason, and relying on the Court's en banc decision in Crutchfield, the Court concluded that there was no Sixth Amendment "deprivation" at all.  As a result, the Court declined to resolve issues about how structural error, plain error, and invited error might apply in this context.

Wednesday, February 28, 2018

St. Hubert: Hobbs Act Robbery and Attempted Robbery are Crimes of Violence under 924(c)'s Elements and Residual Clauses

In United States v. St. Hubert, No. 16-10874 (Feb. 28, 2018) (Hull, Marcus, Anderson), the Court upheld the defendant's 924(c) convictions predicated on Hobbs Act robbery and attempted Hobbs Act robbery, concluding that both offenses qualified as "crimes of violence" under both the residual and elements clauses of 924(c)(3).

As an initial matter, the Court rejected the government's argument that the defendant's guilty plea waived his argument on appeal that his convictions were not crimes of violence.  As to the defendant's constitutional vagueness argument based on Johnson and the residual clause, the Court concluded that the Supreme Court's recent decision in Class confirmed that a guilty plea does not waive an argument that the offense is unconstitutional.  As to the defendant's statutory argument under the elements clause, the Court re-affirmed its prior precedent that claims challenging the legal sufficiency of the government's affirmative allegations (as opposed to omissions) are jurisdictional and therefore not waived by a guilty plea.

As to Hobbs Act robbery, the Court concluded that it was a crime of violence under the residual clause, relying its decision in Ovalles.  The Court also concluded that it was a crime of violence under the elements clause, relying on its prior SOS decisions in St. Fleur and Colon.  The Court specifically held that its published SOS decisions constitute binding precedent that all subsequent panels are bound to follow, even in direct appeals.

As to attempted Hobbs Act robbery, the Court included a lengthy discussion about why it satisfied the elements clause analysis, relying heavily on its analysis in St. Fleur and Colon.  During that analysis, the Court held that: the Hobbs Act is a divisible statute, with robbery and extortion constituting separate offenses; four circuits have concluded that Hobbs Act robbery satisfied the elements clause using the categorical approach and one did so using the modified categorical approach; contrary to the defendant's argument, the "fear or injury" component of Hobbs Act robbery necessarily required the threatened use of force, relying on its bank robbery precedents and emphasizing that there was no reported Hobbs Act robbery case that did not involve the threatened use of force; Curtis Johnson may be of "limited value" in the 924(c) context due to the textual differences between the elements clauses of 924(c) and ACCA; and attempted Hobbs Act robbery satisfies the elements clause because it requires the "attempted" use of force, relying on other circuits' ACCA cases holding that an attempt to commit a violent felony is itself a violent felony.

Although the Court recognized that, under its precedent, it was bound to apply the categorical approach, the Court included a favorable discussion of a Third Circuit decision applying the modified categorical approach in the 924(c) context.  The Court agreed with the Third Circuit that, unlike in the ACCA context, it made more sense to apply the modified categorical approach in the 924(c) context, because the analysis focused on a charged offense, not a prior conviction.  It nonetheless recognized that it was bound to apply the categorical approach.

Finally, the Court noted that it had denied the defendant's motion to stay the appeal pending the Supreme Court's forthcoming decision in Dimaya, because that decision would not impact the result "no matter the outcome."  The Court identified three distinctions between 16(b), the statute at issue in Dimaya, and 924(c): 1) 16(b) applies to prior convictions, not contemporaneous charged offenses; 2) the categorical approach plays a more limited role in the 924(c) context than in the 16(b) (and ACCA) contexts, because it applies only to federal crimes; and 3) 924(c), unlike 16(b) and ACCA, does not require courts to discern some common cross-jurisdictional character for a variety of different predicate offenses.

Tuesday, February 27, 2018

Lisa Branch

Today the Senate confirmed Lisa Branch of Georgia as the newest member of the Eleventh Circuit by a vote of 73-23.  A thorough overview of her background is available at the link below.

Thursday, February 22, 2018

Joyner: Supplemental Jury Instruction on Possession was not Abuse of Discretion, and Attempted Florida Robbery is a Violent Felony

In United States v. Joyner, No. 16-17285 (Feb. 22, 2018) (Hull, Marcus, Fay), the Court upheld the defendant's felon-in-possession conviction and ACCA sentence.

As to the conviction, the Court concluded that the district court did not abuse its discretion in supplementing its jury instruction on possession in response to a jury question.  The Court reasoned that the court's original possession instruction was correct, the court's answer referred back to the original instruction, it did not misstate the law, and it appropriately resolved any potential confusion in light of the government's theory of the case.  The Court further noted that the defendant's proposed response was not a correct statement of the law, and the court's answer was more beneficial to the defendant.  The Court rejected the defendant's argument that the district court was required to say more given its substantial discretion.

As for the ACCA sentence, the Court held that attempted Florida robbery satisfied the elements clause, relying on its prior precedents holding that substantive robbery satisfied the elements clause.  Notably, and as the Court itself observed, the defendant did not argue that the attempt component distinguished his offense from substantive robbery, and so the Court did not address any of the arguments for why attempted robbery might be different than substantive robbery.  The Court also reiterated its prior precedent that resisting with violence satisfied the elements clause, and that prior convictions need not be charged in the indictment or proved beyond a reasonable doubt.

Tuesday, February 20, 2018

Cintron: Florida Statute 893.135 is Indivisible

In Cintron v. U.S. Att'y Gen., Nos. 15-12344 & 14352 (Feb. 20, 2018) (Jill Pryor, Marcus, Siler), the Court held that a drug conviction under Fla. Stat. 813.135(1)(c)1 was not an aggravated felony for immigration purposes.  

In so holding, the Court concluded that the statute was indivisible after Mathis, and it analyzed how to distinguish between means and elements.  It reasoned that the statutory language of 893.135 itself strongly suggested that the various ways to commit the offense (e.g., sell, purchase, manufacture, etc...) were means, not elements, because they were all one way to commit the single offense of trafficking.  This conclusion was also consistent with how Florida courts had characterized the statute.  And the Court distinguished its precedent holding that Fla. Stat. 893.13 was divisible, because the statutory structure and case law interpreting that statute suggested that the ways to commit that drug-trafficking offense were separate elements, not means.  That distinction, moreover, was reflected in the standard jury instructions for each statute.  Although the Court recognized in footnote 8 that brackets often suggest alternative elements, not means, that was not the case with 893.135, since they just defined alternative ways to commit a single crime; and, in any event, Mathis required the Court to look first to the statutory language and case law, which it found conclusive.

Deshazior: Florida Sexual Battery with a Deadly Weapon Satisfies the Element Clause of the ACCA

In United States v. Deshazior, No. 16-11373 (Feb. 20, 2018) (Reeves (E.D. Ky), Jordan, Jill Pryor), the Court upheld the defendant's ACCA enhancement.

After reiterating its prior precedents holding that Florida aggravated assault and resisting with violence qualified as violent felonies under the elements clause, the Court held that Florida sexual battery also satisfied that definition.  Although the Court, in an earlier case, had accepted the government's concession that Florida sexual battery did not satisfy the elements clause, it did so only for purposes of that case, and the sexual battery offense here required the use or threatened use of a deadly weapon.  Determining that the sexual battery statute was divisible, in part by consulting the standard jury instructions, the Court consulted the information in his case, which showed that his sexual battery involved the use or threatened use of a deadly weapon.  

The Court thus addressed whether the use or threatened use of a deadly weapon necessarily involved the use, attempted use, or threatened use of physical force.  It concluded that it did.  It rejected the defendant's argument that the offense was overbroad because a "deadly weapon" could include poison/anthrax, bleach, or an attack dog.  The Court acknowledged that those uses of force were not direct, but it concluded that they were nonetheless capable of causing physical injury or pain and thus satisfied the elements clause.  Relying on the Supreme Court's decision in Castleman, the Court concluded that it did not matter whether the force was applied indirectly rather than directly.

Wednesday, January 24, 2018

Llewelyn: Defendant Ineligible for 3582(c)(2) Reduction Where He Had Already Completed Term of Imprisonment

In United States v. Llewelyn, 16-10803 (Jan. 24, 2018) (Reeves (E.D. Ky.), Jill Pryor, Jordan), the Court affirmed the denial of the defendant's motion for a sentencing reduction under 18 U.S.C. 3582(c)(2).

The defendant had initially received a 110-month federal sentence in Florida.  He then received a 360-month federal sentence in North Carolina, which was to run consecutively.  He completed his Florida sentence in 2009 and began serving the North Carolina sentence.  In 2012, he filed motions to reduce his North Carolina sentence based on retroactive guideline amendments, and the federal court in North Carolina reduced his 360-month sentence to 235 months.  In 2014, following Amendment 782, he filed a pro se motion seeking a reduction of his Florida sentence.  The court denied the motion on the ground that the defendant had already completed that term of imprisonment.  The district court subsequently denied his motion for reconsideration, and he appealed 14 days later.

As an initial matter, the Court found that the defendant's notice of appeal was timely.  The government argued that the defendant's reconsideration motion was actually a motion to correct the sentence under Rule 35, and it therefore did not toll the time for appeal.  The Court rejected that argument, concluding that the court's denial of the 3582(c)(2) motion did not impose a new sentence and thus did not implicate Rule 35.  The defendant's appeal, filed within 14 days from the denial of the reconsideration motion, was therefore timely.

On the merits, however, the Court concluded that the defendant was ineligible for a sentencing reduction, because he had already completed his Florida term of imprisonment.  The Court rejected the defendant's argument that his two federal sentences were aggregated, and he was therefore only serving a single federal sentence for purposes of 3582(c)(2).  The Court rejected his reliance on: 18 U.S.C. 3584, which aggregates sentence for "administrative purposes" only; on habeas cases interpreting the "in custody" requirement; and on consecutive sentences imposed under 924(c) in a single proceeding.  The Court emphasized that the defendant was sentenced in different courts, at different times, and for different drug offenses, and thus there was no reason to aggregate the sentences for 3582(c)(2) purposes.  The Court expressly reserved whether sentences may be aggregated when a statutory mandatory consecutive sentence and a guidelines sentence are imposed in the same proceeding.

Friday, January 19, 2018

Presendieu: No Plain Error Under Rule 11 for Failing to List Elements of Offenses, but There Was Sentencing Error in the Loss Calculation and Minor-Role Reduction

In United States v. Presendieu, No. 15-14830 (Jan. 19, 2018) (Hull, Jordan, Boggs), the Court affirmed one defendant's bank-fraud and aggravated identity theft convictions, but vacated the other defendant's sentence due to two guideline miscalculations.

On appeal, the defendant argued for the first time that his guilty plea was invalid, because he was not adequately informed of the nature of the charges against him, since the court did not list and explain each element of the offenses.  Applying plain error, the Court rejected that argument, finding that neither offense was complex, the defendant was intelligent, the defendant understood the facts set forth in the factual proffer, he had discussed those facts with his attorney, and he voluntarily and intelligently pled guilty to the charges.

As for the other defendant's sentence, the Court first concluded that the district court erred in calculating her loss amount,  because, under the 2015 amendment to the relevant conduct Guideline, it improperly included conduct that was outside the scope of her "jointly undertaken criminal activity."  The Court found no evidence to support any connection between the defendant and the conduct of another individual in the larger check-cashing scheme on which the loss amount was partially based.

The Court upheld the two-level enhancement for production of counterfeit or unauthorized access devices under USSG 2B1.1(b)(11)(B)(i).   Although application of this enhancement is limited where the defendant is convicted of aggravated identity theft, the Court found that her offense involved production of false identification cards, as she provided cards to others and repeatedly referenced her source.

The Court upheld the two-level enhancement for the use of sophisticated means under USSG 2B1.1(b)(10)(C).  The defendant relied on Amendment 792, which required intentional conduct, but the Court refused to apply it to her, because it took effect after her sentencing, and it was a substantive rather than clarifying amendment.  Without the amendment, the Court found that the offense involved sophisticated means, because the defendant employed intricate measures to execute and then conceal the bank fraud.

Finally the Court found that the district court erred by denying her request for a two-level minor-role reduction under USSG 3B1.2(b).  The district court erred by relying solely on one factor--that the defendant was being held accountable only for her own actions as opposed to the broader conspiracy.  While that was a permissible factor, it was only one of many relevant factors under Amendment 794.  Moreover, the evidence was conflicting regarding her relative role, and the district court had not made factual findings in that regard.

Judge Jordan issued a concurring opinion on the plea issue.  He opined that, while the defendant had not shown plain error, there was seldom a good reason for a court not to set out the elements of an offense during the plea colloquy.  And he was skeptical that aggravated identity theft was an offense whose elements were apparent to lay people.

Thursday, January 18, 2018

Brown: District Court Erred by Failing to Conduct a Re-sentencing Hearing After Granting his 2255 Motion

In United States v. Brown, Nos. 16-14267, 14284 (Jan. 18, 2018) (Martin, Marcus, Newsom), the Court held that the district court, after granting the defendant's 2255 motion based on Johnson, erred by failing to hold a re-sentencing hearing with the defendant present before it imposed the 10-year statutory maximum.  The defendant was entitled to a re-sentencing hearing with the opportunity to allocute, because the new 10-year sentence represented an unexplained upward variance from the revised guideline range, and the court did not consider the 3553(a) factors during the original sentencing proceeding but simply relied on what was then 15-year mandatory  minimum. 

More broadly, the Court reasoned that, to determine whether a defendant is entitled to a new re-sentencing hearing after a successful 2255 motion, it will ask whether the grant of post-conviction relief undermined the sentence as a whole (for example, implicating the sentencing package doctrine), and whether the sentencing court will be required to exercise significant discretion in modifying the defendant's sentence, perhaps on issues that it was not previously called on to consider at the original sentencing.  If so, then the new sentence will be a critical stage in the proceeding, requiring a hearing with the defendant present.

Tuesday, January 09, 2018

Watkins: Illegal Re-entry Defendant Could Not Collaterally Challenge Underlying Deportation Order Where Judicial Review was Available

In United States v. Watkins, No. 16-17371 (Jan. 5, 2018) (Wilson, Rosenbaum, Titus) (per curiam), the Court affirmed the defendant's illegal re-entry conviction.

The defendant argued that she could not be charged with illegal re-entry, because her underlying deportation order was invalid on the ground that it was based on a grand theft conviction that no longer qualified as a crime of moral turpitude.  The Court rejected that argument on the ground that the defendant failed to meet the requirements for collaterally challenging an underlying deportation order.  Specifically, the Court found that the deportation proceedings did not deprive her of the opportunity for judicial review, because she could have sought to reopen her immigration proceeding.  And, although the legal basis of her collateral challenge did not arise until after the 90-day deadline to do so, equitable tolling applies to the 90-day deadline, the defendant sought equitable tolling in order to reopen her proceeding, and the BIA determined that equitable tolling was not appropriate in her case.  The defendant, moreover, did not seek judicial review of that denial.

The Court also found no reversible error during the defendant's bench trial.  It found no abuse of discretion in permitting the government to collect the defendant's fingerprints used to establish her identity.  And, while the district court "likely erred" in admitting the fingerprint analyst's expert testimony under Daubert as unreliable -- for failing to testify about her scientific methods -- that error was harmless, because an officer testified about the defendant's identity, and the defendant herself repeatedly admitted that she had previously been deported.

Friday, January 05, 2018

Morales-Alonso: Georgia Aggravated Assault is a Crime of Violence Under the Enumerated Offense Clause of the Guidelines

In United States v. Morales-Alonso, No. 16-14925 (Jan. 5, 2018) (Julie Carnes, Edmondson, Kathy Williams), the Court held that Georgia aggravated assault qualified as a "crime of violence" under the enumerated offense clause, which is contained in the commentary to U.S.S.G. 2L1.2 and enumerates "aggravated assault."

The Court determined that Georgia aggravated assault roughly corresponded to the generic version of aggravated assault, which the Court had previously defined in Palomino-Garcia as a criminal assault accompanied by either an intent to cause serious bodily injury or the use of a deadly weapon.  The Court initially found that Georgia's aggravated assault statute was divisible, and, using Shepard documents, determined that the defendant was convicted of aggravated assault by using a deadly weapon or other object/device/instrument that is likely to or actually does result in serious bodily injury when used offensively.  Although aggravated assault with a deadly weapon was generic, the defendant argued that the Georgia offense was overbroad because it could be committed with an object, device, or instrument.  The Court rejected that argument because the Georgia courts had made clear that the object/device/instrument must be used as a deadly weapon.  That sufficed because the deadly weapon, as used in the generic offense, could be dangerous due to the way in which it was used in a particular case.  Finally, the Court rejected the defendant's argument that Georgia's statute could be violated by the use of an object/device/instrumentality that just happened to cause serious bodily injury, such as a golfer accidentally hitting someone with his ball.  The Court found that such conduct would not violate the statute, and the defendant's hypothetical was not supported by any case law and represented "legal imagination" rather than a "realistic possibility."

Thursday, January 04, 2018

Foster: Rejecting Sufficiency, Loss Calculation, and Juror Misconduct Challenges to Uphold Wire Fraud Convictions and Sentence

In United States v. Foster, No. 15-14084 (Jan. 4, 2018) (Gilman, Jordan, Hull), the Court upheld the defendant's wire-fraud convictions and sentence.

First, the Court found sufficient evidence to support the convictions.  It found sufficient evidence that the defendant misrepresented the ownership of the land at the heart of the real-estate investment fraud, misrepresented purported news articles regarding the defendant's investment company, misrepresented that celebrities had purchased land through his company, and had the requisite criminal intent.

Second, the Court concluded that the district court correctly determined the loss amount for purposes of both his guideline range and restitution.  The Court rejected the defendant's argument that the value of the land should have been subtracted from the $8 million total loss figure because, even if the investors acquired a proprietary interest in the land, it was worthless as a practical matter, since they did not and likely could not obtain title to it.  The Court also refused to credit the value of the land on the ground that a fraudster is not entitled to an offset for value provided solely to conceal or perpetrate a fraud.

Third, the Court concluded that the defendant's sentence was procedurally and substantively reasonable. Aside from the sufficiency of the evidence and loss calculation, the defendant raised no additional procedural challenges.  And the Court found the 152-month sentence--imposed in the middle of the guideline range--to be substantively reasonable.

Finally, the Court found no error in the denial of the defendant's motion to vacate the verdict for juror misconduct in light of a post-trial letter, in which a juror stated that she had been bullied into the verdict and regretted her decision.  The defendant argued that he should have been permitted to question the juror under Rule 606(b)'s exception for extraneous prejudicial information improperly brought to the juror's attention.  The Court rejected that argument, reasoning that the juror's letter, referencing bullying and sway tactics during deliberations, pertained to purely internal (not extraneous) matters.  The Court further noted that the juror's letter described nothing more than typical features of juror deliberations.