Eleventh Circuit Court of Appeals - Published Opinions

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.