Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, August 20, 2019

Hawkins: Vacating Drug Convictions Due to Improper Expert Testimony by Case Agent

In United States v. Hawkins, No. 17-11560 (Aug. 20, 2019) (Antoon (M.D. Fla.), Newsom, Tjoflat), the Court affirmed in part but vacated several drug convictions.

First, the Court upheld the denial of a motion to suppress wiretap evidence, rejecting the argument that the wiretap applications did not meet the "necessity" requirement of Title III.  The accompanying affidavits described other investigative techniques already employed and that proved unsuccessful, and the good-faith exception applied in any event.  The Court also upheld the denial of a motion to suppress evidence seized during a traffic stop because there was a probable cause of a traffic violation, namely changing lanes on the interstate without using a turn signal.

Second, the Court rejected the defendant's argument that the evidence at trial on a conspiracy count diverged from the allegations in the indictment, resulting in a constructive amendment or variance.

However, the Court agreed with the defendants that the lead case agent—the government's primary witness at trial—went beyond the bounds of permissible expert testimony by repeatedly providing speculative interpretive commentary about the meaning of phone calls and text messages and by giving his opinions about what was occurring during and in between those communications.  Rather than interpreting drug codes or common practices, which an expert may do, he interpreted unambiguous language in conversations, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury, straying into speculation and unfettered, wholesale interpretation of the evidence.  The Court concluded that this met all of the requirements of plain-error review, emphasizing that the agent was paraded to the jury as an expert, often went beyond mere lay opinion testimony, and at times played the role of both expert and lay witness, and that the agent was the government's main witness who testified for more than half of the trial.

Monday, August 19, 2019

Stahlman: Affirming Enticement Conviction/Sentence Over Various Challenges

 In United States v. Stahlman, No. 17-14387 (August 19, 2019) (Hull, Jordan, Grant), the Court affirmed the defendants's conviction and sentence for enticing a minor to engage in sexual activity.

First, the Court upheld the exclusion of the defendant's expert testimony on the ground that admitting it would have violated Rule 704(b), which prohibits an expert from opining on the defendant's intent.  That expert would have directly testified that there was insufficient clinical and behavioral evidence that the defendant intended to have real sex with a minor rather than act out a fantasy involving adults.  The Court expressed no view on a whether a more limited, less direct version of expert testimony would have been admissible.

Second, the Court found no reversible error in permitting a special agent to offer lay opinion testimony regarding the age of a girl in a picture posted on Craigslist, what Craigslist is used for, whether the picture would have been "flagged," what the defendant meant in the ad, and the agent's interpretation of email communications between him and the defendant.  Although the court erroneously admitted that lay opinion as expert opinion, that error was harmless because much of his testimony, including which posts would be "flagged," would have been proper lay opinion testimony that was not based on specialized knowledge from his law-enforcement experience.  Moreover, even if some of the testimony required specialized knowledge that should have been disclosed and presented as expert testimony, that was harmless because the court would have admitted it as such even if the defense had file a motion to exclude it, and ample evidence supported the conviction.

Third, the Court rejected the defendant's argument that the evidence was insufficient to prove his intent, or that he took a substantial step toward carrying out that intent.   Although there was an innocent explanation for his conduct, the jury was free to reject it, particularly because the defendant testified at trial.

Fourth, the Court upheld a sentencing enhancement for obstruction based on perjurious testimony at trial.  The Court rejected the defendant's argument that the district court failed to make sufficient factual findings.

Finally, the Court found no reversible error in denying a motion for new trial based on a Brady and Rule 16 violation.  The Court found that, although the court used the wrong legal standard, even if the agent's prior disciplinary history was Brady material, it would not have affected the outcome of the trial had it been disclosed, so any error was harmless.

Wednesday, August 14, 2019

Brown: Upholding Police Brutality Convictions but Vacated Probation Sentences

In United States v. Brown et al., No. 18-10772, 10972 (Aug. 14, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' convictions but vacated their sentences.

First, the Court found that sufficient evidence supported a police officer's conviction for deprivation of rights under color of law when he beat and tased the passenger in a fleeing vehicle.  Ample evidence supported the jury's finding that the defendant willfully used excessive force under the facts and circumstances.  The Court also found no abuse of discretion in denying the defendant's motion for a new trial under Rule 33 based on a purportedly inconsistent verdict (his codefendants were acquitted) and an enhanced video of the incident that was neither "newly discovered" nor material.

Second, the Court found that sufficient evidence supported the supervising officer's conviction for obstruction of justice when he instructed his subordinates to change their reports to better reflect what happened after a video came to light, and then gave misleading answers to questions by the FBI.   The Court also found that, because he first proposed it, the defendant invited any error in connection with the pattern Allen charge, and the Court rejected his argument that the instruction was unuduly coercive.  And the Court found no abuse of discretion under Rule 606(b) when the court declined to interview a juror who alleged misconduct (e.g., that jurors were biased, bullied into voting guilty, discounted her opinion because she had "crush" on the defendant), or to compel the disclosure of the contents of a juror's post-trial conversation with a spouse of an AUSA about her experience as a juror.

Third, and on a cross-appeal by the government, the Court vacated the defendants' downward-variance sentences of probation.  To calculate the guidelines, the ultimate question was whether the officer used the taser with intent to cause bodily injury.  The district court found that he did not because there was evidence that the officer used it to gain compliance rather than to cause bodily injury.  However, it was possible that the officer intended both to gain compliance and cause bodily injury.  Because it was unclear whether the district court applied an incorrect legal standard to reach its factual conclusion, the Court vacated the sentences and remanded for re-sentencing.

Wednesday, July 31, 2019

In re Pollard: Denying SOS Under Davis Where Predicate was Armed Bank Robbery

In In re Pollard, No. 19-12538 (July 31, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied a successive application based on Davis because the 924(c) predicate was for armed bank robbery, which, under Eleventh Circuit precedent, still qualified as a crime of violence under the elements clause in 924(c)(3)(A).  The Court made clear that where the predicate offense qualifies as a crime of violence under the elements clause, the applicant cannot show a reasonable likelihood that he will benefit from Davis, and the application will be denied.

Tuesday, July 30, 2019

In re Palacios: Denying SOS Under Rehaif Because that Decision Does Not Satisfy Gatekeeping Criteria

In In re Palacios, No. 19-12571 (July 30, 2019) (Wilson, Rosenbaum, Newsom) (per curiam), the Court denied an application to file a successive 2255 motion based on Rehaif.

The Court explained that Rehaif did not satisfy the gatekeeping criteria in 2255(h)(2) because it interpreted a statute; it did not announce a new rule of constitutional law.  And the Supreme Court had not made Rehaif retroactive to cases on collateral review.  

Judge Rosenbaum concurred, reiterating her view that the en banc decision in McCarthan was wrongly decided, and it would wrongly preclude those in the successive posture from filing 2241 petitions based on Rehaif.

In re Navarro: Denying SOS Under Davis Where 924(c) Based in Part on Drug Trafficking Offenses

In In re Navarro, No. 19-12612 (July 30, 2019) (Ed Carnes, Rosenbaum, Black) (per curiam), the Court denied a successive application based on Davis.

Although the applicant ultimately pled guilty only to Hobbs Act conspiracy and 924(c), the plea agreement and factual proffer established that his 924(c) offense was predicated on both Hobbs Act conspiracy and two charged drug trafficking offenses in connection with a stash house robbery.  And the facts for all three predicate offenses were inextricaly intertwined.  Therefore, the Court reasoned, even ifthe  Hobbs Act conspiracy no longer qualified as a crime of violence, his drug offenses fully supported the 924(c) conviction.  The Court noted that this case was distinguishable from In re Gomez because that case involved a jury trial, which returned a general verdict; here, however, there was no uncertainty as to which of the predicate offenses identified in the indictment underlied the 924(c) conviction.

The Court also denied authorization as to a claim about the Sentencing Guidelines.

Judge Rosenbaum concurred because, on this record, it was clear that the 924(c) offense was based in part on drug offenses.  However, she would have ended the analysis there.

Feldman: Affirming Wire Fraud and Money Laundering Convictions/Sentences Over Various Challenges

In United States v. Feldman, No. 17-13443 (July 30, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendant's wire-fraud conspiracy and money-laundering conspiracy convictions over various challenges.

First, the Court held that Double Jeopardy did not bar the defendant's re-trial for on an alternative theory of liability for which the jury made no finding in his first trial.  Nor did the jury implicitly acquit the defendant on that theory by finding him guilty on the alternative theory.  Moreover, the defendant implicitly consented to the dismissal of the jury without it making a finding.

Second, the Court held that the evidence was sufficient to support his convictions for conspiracy to commit wire fraud and conspiracy to commit money laundering. 

Third, the Court found no constructive amendment of the wire-fraud conspiracy count.  With respect to the defendant's argument that a jury instruction constructively amended the indictment, the Court found invited error because defense counsel responded to the court's instruction by stating "that's fine."

Fourth, the Court rejected the argument that the defendant, who is Jewish, was deprived of due process when the prosecutor analogized his conduct to that of Fagin from Oliver Twist.  The government never referred to ethnicity or any stereotype, but rather made only anodyne references to a literary character as an example.

Finally, the Court found no reversible error at sentencing.  The Court found no clear error in connection with the loss amount and ten-or-more victim enhancement.  The Court found no clear error in an obstruction of justice enhancement based on a finding that the defendant committed perjury in his first trial.  The Court found no error in applying the sophisticated money-laundering enhancement.  Finally, the Court upheld as substantively reasonable an upward variance based on the defendant's lack of remorse and perjury.

Judge Pryor authored a lengthy concurring opinion criticizing the Court's decision in Takhalov, which had vacated the defendant's convictions based on its interpretation of the "scheme to defraud" element of wire fraud.  Although it was unnecessary to apply that interpretation to resolve this appeal, he opined that, depending on how it was interpreted, the decision was likely at odds with the common law of fraud.  He warned the bench and bar to "exercise due care in interpreting our opinion in Takhalov and determining its precedential value."

Thursday, July 25, 2019

In re Cannon: Authorizing Successive 2255 Motion Under Davis for 924(o) Conviction but not 924(c) Convictions

In In re Cannon, No. 19-12533 (July 25, 2019) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court authorized a successive 2255 motion under Davis for a 924(o) conspiracy conviction but not for 924(c) convictions.

For the 924(c) convictions, the Court denied authorization because they were based on drug trafficking, substantive Hobbs Act, and carjacking, all of which remain qualifying predicates after Davis. 

For the 924(o) conviction, the Court observed that the offense was based on multiple distinct predicate offenses, most of which remained qualifying predicates, but one of which was Hobbs Act conspiracy, which was still an open question in this Circuit.  Because the jury returned a general verdict, and the crimes seemed inextricably intertwined based on its limited review of the record, the Court found it unclear which crimes served as the predicate for the 924(o) offense.  Therefore, it found that the applicant had made a prima facie showing.  The Court cited In re Gomez for support.  However, the Court cautioned that the movant bore the burden under Beeman to show that the jury likely based its verdict solely on the Hobbs Act conspiracy, not the other qualifying predicates--and the Court found there was some indication that it did not.  The Court also suggested that, where a 924(o) verdict rests on a drug trafficking predicate, there may not be any concern about a possibly defect in a related crime of violence predicate. 

Tuesday, July 23, 2019

In re Hammoud: Davis Satisfies the Gatekeeping Criteria in 2255(h) for Successive 2255 Motions

In In re Hammoud, No. 19-12458 (July 23, 2019) (William Pryor, Jordan, Hull) (per curiam), the Court authorized a successive 2255 motion based on Davis.

The Court granted the application as to a 924(c) conviction predicated on solicitation to commit murder.  The Court found that the application was properly stated under Davis, not Johnson or Dimaya.  The Court found that Davis announced a new rule of constitutional law that the Supreme Court has made retroactive.  The Court also found that the application was not barred under In re Baptiste because his earlier unsuccessful applications were based on Johnson/Dimaya, and Davis announed new rule.  Finally, the Court found that he made a prima facie showing that his predicate offense may not satisfy the elements clause, as that was an open question.  But don’t get too excited: the Court went out of its way to add that, in the distirct court, the movant has to satisfy his burden of proof under Beeman to show that the conviction was based solely on the residual clause in 924(c)(3)(B).

Monday, July 22, 2019

Weeks: For Beeman Purposes, Court May Consider Legal Landscape Through Direct Appeal

In Weeks v. United States, No. 17-10049 (July 22, 2019) (Anderson, Tjoflat, Jordan), the Court reversed the denial of a 2255 motion based on Johnson, finding that the movant met his burden under Beeman.

The Court held that, where the movant challenged his ACCA enhancement on appeal, the relevant time frame to consider whether the residual clause solely caused the enhancement extends through the direct appeal.   Thus, any precedents decided in that interim period may be considered.  So too may the appellate opinion in that very case, as well as the briefs filed in that appeal.  The Court found that statements in Beeman and Pickett about the question being a "historical fact" were dicta, so they did not preclude a court from considering events through appeal.  In this case, the Court considered intervening legal precedents and the appellate proceedings to conclude that the movant met hits burden as it pertained to Massachusetts convictions.

Thursday, July 11, 2019

Tribue: Government Did Not Waive Ability to Rely on New ACCA Predicate in 2255 Proceeding

In Tribue v. United States, No. 18-10579 (July 11, 2019) (Hull, Jordan, Grant), the Court affirmed the denial of a 2255 motion based on Johnson.

First, the Court concluded that the 2255 motion was properly denied because the movant had three prior serious drug offenses under the ACCA.  The Court rejected the movant's argument that the government waived reliance on one of three convictions, which was not identified as an ACCA predicate in the PSI, because the government failed to rely on that conviction at sentencing.  The Court emphasized that the government had no reason to rely on that conviction at the time of sentencing, where there was no objection to the ACCA enhancement.  Because there was no objection, and the government did not expressly disclaim reliance on the prior conviction, the Court distinguished other cases where the Court had found a government waiver.

Wednesday, July 10, 2019

Whyte: For Sex Trafficking, the Government Need Only Prove a Reasonable Opportunity to Observe the Victim

In United States v. Whyte, No. 17-15223 (July 10, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' sex trafficking convictions.

The Court primarily held that, in light of a 2015 amendment to 18 U.S.C. 1591, the government may prove sex trafficking by establishing only that the defendant had a reasonable opportunity to observe the victim; the government need not also prove that the defendant knew or recklessly disregarded the victim's age.  The Court rejected the defendants' reliance on dictum in case law interpreting the pre-amendment version of the statute.  The Court rejected the defendants' related arguments, including that the Court's reading improperly created a strict liability offense and rendered the statute unconstitutionally vague.

Reviewing for plain error, the Court found no reversible error with regard to the jury instructions.  The Court found that the offense did not require knowledge of the victim's status as a minor, and so therefore that requirement could not be imported into the related conspiracy offense.  And although the instructions omitted the element of a commercial sex act from the numbered list of elements, that omission was not plain error in light of the entirety of the instructions.

The Court upheld the denial of a motion to suppress.  Although the detective's warrant affidavit omitted the victim's criminal history, the defendant failed to argue that he omitted material facts deliberately or with a reckless disregard for truth.

The Court found that limitations on the cross examination of the victim did not violate the Confrontation Clause.  Although the court prevented the defense from attacking the victim's credibility on one point, the defense explored her bias and credibility during a nearly two-day cross examination and elicited testimony that was cumulative to the testimony it was prevented from eliciting.

Finally, the Court upheld the denial of a reduction for acceptance of responsibility because the defendant contested a factual element of guilt at trial.  The Court upheld an undue-influence enhancement because the defendant was ten years older than the victim, creating a presumption of undue influence that he could not rebut.  The Court upheld, on plain error, an enhancement for use of a computer based on their use of smart-phones to communicate with the victim's clients, relying on circuit precedent that found the commentary inconsistent with the text of the Guideline.  The Court rejected the defendant's argument that an enhancement for commission of sex acts constituted impermissible double counting.  And the Court upheld as substantively reasonable the defendants' 300-month and 188-month sentences, both near the bottom of the guideline range.

Monday, July 08, 2019

Arias: Deference to Executive Branch on Legal Validity of Extradition Treaty with Colombia

In Arias v. Warden, No. 18-14328 (July 8, 2019) (Grant, Marcus, Hull), the Court upheld the denial of a habeas petition to block extradition to Colombia.

The petitioner emphasized that the Colombia Supreme Court had declared the extradition treaty unconstitutional.  But both the US and Colombia have continued to act as if the treaty is valid.  The Eleventh Circuit deferred to the State Department's position about the impact, if any, of the foreign court's ruling on the validity of the treaty.  The Court also rejected other challenges to the extradition based on the facts of the case.

Wednesday, July 03, 2019

Khan: No Per Se Deficient Performance by Refusing Court Instruction to Obtain Foreign Approval for Video Deposition

In Khan v. United States, No. 18-12629 (July 3, 2019) (William Pryor, Newsom, Branch), the Court affirmed the denial of a federal defendant's ineffective assistance of counse claim.

The attorney disregarded a court instruction to obtain the official consent of the Pakistani government to conduct video depositions on its soil.  The Court first rejected the movant's argument that failure to follow a court order constitutes deficient performance per se, rejecting any such bright-line rule.  Here, the Court found that the attorney made a reasonable strategic decision based on all of the circumstances, as he made significant efforts to obtain the depositions, the court did not impose an affirmative duty on the lawyer, and in any event that duty would be owed to the court, not the client.  The Court also found that the movant failed to prove prejudice from any deficient performance because there is no indication that the Pakistani government would have granted the lawyer's request, and the evidence of guilt was overwhelming.

Tuesday, July 02, 2019

Smith: No Confrontation Clause Violation Because Government Made Good-Faith Effort to Locate Witness Who Testified by Video Deposition

In United States v. Smith, No. 17-13265 (July 2, 2019) (Hull, Julie Carnes, Rosenbaum), the Court affirmed the defendants' alien smuggling convictions.

The primary issue on appeal was whether the district court violated the Confrontation Clause by admitting the videotaped deposition of a deported government witness (an alien smuggled on the defendants' boat).  In determining whether the witness was "unavailable" for purposes of the Confrontation Clause and the Rules of Evidence, the Court asked whether the government had made a good-faith effort to obtain the witness' presence at trial, and that was a question of "reasonableness."  The government was not required to make every conceivable effort to locate the witness.  Although the witness in this case was temporarily inside the United States at the time of trial, she had no cell phone or U.S. address, was illegally in the U.S., and had absconded from the trial court's jurisdiction to avoid detention and deportation.  And although the government sent a trial subpoena to the witness through her former attorney and her boyfriend, and the attorney reported back that she would cooperate, the witness still refused to appear.  Analyzing the particular facts and circumstances of the government's efforts, the Court found that the government made a reasonable good-faith effort to obtain her presence at trial.

The Court also concluded that the prosecutor did not make inappropriate comments during closing argument.  The prosecutor's comment that the defendant's prior alien smuggling conviction occurred in West Palm was correct and was made in response to the defendant's argument in closing that it would make no sense for an alien smuggler not to take the most direct route from the Bahamas to Florida.

Judge Rosenbaum issued a 43-page dissent on the Confrontation Clause issue, which, in turn, generated a 25-page response by the majority.   In her view, the government did not make a good-faith effort because it failed to pursue a promising lead it had reason to believe might help locating the missing witness.  Specifically, it failed to conduct a database or online search for the address of the witness' boyfriend (the government had called and texted the boyfriend to no avail). The two opinions debate the governing Supreme Court opinions on unavailability, whether the government made a good-faith effort under the facts of the case, and the relevance of other circuit decisions.

Thursday, June 20, 2019

Whatley: Reversing Grant of Habeas Claim on Mitigation Claim and Affirming Denial of Habeas on Shackling Claim

In Whatley v. Ga. Diagnostic and Classification Center, No. 13-12034 (June 20, 2019) (Tjoflat, Hull, Jordan), the Court reversed the partial grant of habeas relief and affirmed the partial denial of habeas relief in a capital case.

The first claim, on which the district court granted relief, was that the trial lawyer was ineffective for failing to investigate and present mitigating evidence at the penalty phase.  The Court reversed because, on the prejudice prong, the district court failed to defer to the state supreme court's decision under AEDPA, applying de novo instead and re-weighing all of the evidence for itself.  Rather than remanding the case for the district court to conduct the correct analysis, the Court did so for itself and found that the state court's decision was not unreasonable.

The second claim, on which the district court denied relief, was that the trial lawyer was ineffective for failing to object to use of shackles during the sentencing hearing.  Although prejudice is typically presumed by the use of shackles when that claim is raised on direct appeal, the Court declined to presume such prejudice here, because a substantive shackling claim was procedurally defaulted on direct appeal, and so it was the defendant's burden to prove prejudice on collateral review under Strickland.  In that regard, the Court found that the defendant could not show that the state supreme court's decision declining to find actual prejudice was unreasonable.

Judge Jordan dissented as to the shackling claim, opining that the state court failed to conduct the prejudice inquiry with proper regard for the inherent harm that results from visible shackling.  He emphasized that the state court did not take into account the fact that the defendant wore shackles not only while taking the stand but also while being forced to re-enact the murder in front of the jury, with the prosecutor playing the director and victim in that re-enactment.  And he argued that the state court failed to analyze how the shackles may have affected the juror's views regarding his propensity for future violence, one of the major theme's of the prosecutor's closing argument.

Thursday, June 13, 2019

Fox: Upholding USSG 4B1.5(b)(1) Enhancement for a Pattern of Activity Involving Prohibited Sexual Conduct

In United States v. Fox, No. 18-10723 (June 13, 2019) (Martin, Tjoflat, Traxler), the Court upheld the defendant's 360-month sentence for production of child pornography.

First, the Court upheld a five-level enhancement under USSG 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct.  Joining every circuit to address the issue, the Court held that the enhancement does not require multiple victims; it may apply even where there is only a single victim.  The Court also rejected the argument that two unrelated instances of prohibited sexual conduct are necessary to trigger the enhancement; it requires only two separate and distinct incidents, related or not.  Lastly, the Court held that the enhancement could be based on conduct underlying the conviction.

Second, the Court held that the defendant's sentence was substantively reasonable, even though the defendant was 60 years old and unlikely to outlive his sentence.

Monday, June 10, 2019

Cooper: Affirming Wire Fraud and Sex Trafficking Convictions Over Multiple Challenges

In United States v. Cooper, No. 17-11548 (June 10, 2019) (Rosenthal, William Pryor, Newsom), the Court affirmed the defendant's convictions and sentences for wire fraud and sex trafficking over various challenges.

First, the Court rejected the defendant's hearsay/Confrontation Clause arguments.   As to an agent's testimony about the state of mind of foreign victims who did not testify, the Court found that, even if hearsay, the defense opened the door to the agent's testimony on cross examination.  And the agent did not offer testimonial statements from the individuals because he questioned them only to understand why they refused to testify, not to investigate or establish any element of the charged offenses.  As to the agent's testimony about statements made to him by men whose names were listed on visitor logs, the Court again found that the defense opened the door to that testimony.  And while the men's statements were testimonial, any confrontation clause violation was harmless in light of the other evidence at trial.  Finally, as to an agent's testimony that a victim had identified the defendant's voice during a monitored phone call, the Court found that the district court had ample other evidence establishing that identification and that the defendant's statements on the call were admissible as those of a party opponent.

As to additional evidentiary issues, the Court found that the defendant invited his claim of error regarding the admission of additional testimony by the agent.  The district court did not abuse its discretion in admitting evidence under Rule 404(b) because it showed his intent to operate a sex business, his knowledge of the type of business, and that he engaged in a knowing course of conduct.  And the Court rejected the defendant's argument that statements he made to officers outside of his apartment were involuntary, as there was no evidence of coercion.

The Court next found the evidence sufficient to support the defendant's convictions for wire fraud and sex trafficking.

The Court next rejected several claims of error relating to various jury instructions.   First, the district court properly refused to give a defense instruction that was confusing and misstated State Department regulations.  Second, the Court found no error in the court's instruction for using a facility in interstate and foreign commerce to promote an unlawful activity, in violation of 18 U.S.C. 1952(a)(3)(A).  Third, the Court found no error in the court's instruction for importing or attempting to import an alien for the purpose of prostitution or any other immoral purpose, in violation of 8 U.S.C. 1328.  Fourth, the Court found no error in declining to give an immunized-witness instruction because it was covered by the court's instruction to assess each witness's credibility.  Lastly, the Court found no error in declining to give a missing-witness instruction because there was no evidence that the witnesses were in the control of the government or that their testimony would have been favorable to the defense.

The Court next no prosecutorial misconduct when the prosecutor called the defendant a "two-faced fraud" and a "phony" during opening statements, as the government introduced evidence that the defendant used a fake name to run his prostitution business and used false pretenses to lure the victims to the United States.

Lastly, the Court found no error in applying the vulnerable-victim enhancement because the victims were from a foreign country, had difficulty speaking English, and had no other jobs, family, or place to stay without the defendant.

Friday, May 24, 2019

Babcock: Warrantless Seizure of Cell Phone Was Supported by Probable Cause and Exigent Circumstances

In United States v. Babcock, No. 17-13678 (Newsom, W. Pryor, and Vratil), the Court affirmed the denial of a motion to suppress and the defendant's child pornography sentence.

First, the Court rejected the government's argument that officers were permitted to detain the defendant's cell phone under Terry based on reasonable suspicion that he had committed a crime.  The Court concluded that the detention of the phone exceeded the scope of Terry because the officers had detained the phone for two days, it constituted a significant intrusion into a possessory interest, and the officers did not explain why they delayed for two days. 

However, the Court concluded that, under the particular facts of the case, the officers had probable cause to believe that the phone contained evidence of a crime and that exigent circumstances—the need to prevent him from deleting the evidence on the phone—allowed them to seize the phone and then subsequently obtain a warrant before searching it.

The Court also affirmed the defendant's sentence.  First, reviewing for plain error, the Court rejected the defendant's argument that application of 2G2.1(b)(2) and 4B1.5(b) was impermissible double counting.  Second, the Court found that the 324-month sentence, a downward variance, was substantively reasonable.

Friday, May 17, 2019

Thompson: Federal Second-Degree Murder is Crime of Violence Under 924(c)

In Thompson v. United States, No. 18-10488 (May 17, 2019) (Hull, William Pryor, Grant), the Court held that second-degree murder under 18 U.S.C. 1111 was a crime of violence under 924(c).

First, because the movant was in the successive posture, the Court held that his Johnson/Dimaya claim failed in light of the Court's decisions in Ovalles, Garrett, and Solomon.

Second, the Court held that the offense was a crime of violence under 924(c)'s elements clause, relying on the Court's precedent holding that Florida second-degree murder satisfied the ACCA's elements clause.  And, regardless of that precedent, the Court concluded it satisfied the elements clause because, by requiring the killing of another person, it necessarily required a level of force "capable" of causing physical pain or injury.

Monday, May 13, 2019

Grimon: Failing to Allege or Prove Interstate Commerce Element of ID Theft Statute Does not Deprive Court of Subject Matter Jurisdiction

In United States v. Grimon, No. 17-15011 (May 13, 2019) (Hull, Marcus, Grant), the Court affirmed the defendant's identity-theft convictions.

On appeal, the defendant argued that the factual proffer supporting her guilty plea was insufficient to establish that unauthorized access devices affected interstate commerce, and therefore the district court lacked subject matter jurisdiction.  The Court rejected that argument on the ground that the interstate-commerce element was not jurisdictional.  It explained that the interstate-commerce element went to whether Congress had the power to regulate the conduct, not to whether the district court had subject matter jurisdiction over the case.  As a result, even if an indictment or factual proffer fails to sufficiently allege facts affecting interstate commerce, that would not deprive the court of subject matter jurisdiction over the offense; it would go only to the sufficiency of the evidence.  All that's required for subject matter jurisdiction is an indictment charging a violation of a valid federal law.  The Court rejected the defendant's reliance on Iguaran, a title 46 case, on the ground that the statute there required the district court to make a preliminary determination of subject matter jurisdiction.

Wednesday, May 08, 2019

Rothenberg: Courts Not Required to "Disaggregate" Victim Losses in Child Pornography Restitution

In United States v. Rothenberg, No. 17-12349 (May 8, 2019) (Hull, Ed Carnes, Rosenbaum), the Court affirmed 8 child pornography restitution awards and vacated 1 award, providing a detailed analysis how courts should calculate restitution in these cases.

Applying the Supreme Court's decision in Paroline, and reviewing the opinions from other circuits in detail, the Court primarily held, after a lengthy discussion, that district courts are not required to "disaggregate" the victim's losses caused by the initial abuser, distributors, and possessors when calculating restitution.

Next, the Court held that Paroline abrogated Eleventh Circuit precedent holding that restitution cannot be based on loss estimates that were made before the particular defendant's arrest and thus before the victim was apprised of his offense.

Next, the Court held that, although two victims did not submit expert reports detailing their losses, no such report was required.  As to one of the victims, the Court found that the evidence supported the award because the victim's attorney submitted a declaration estimating her likely losses based on the attorney's experience representing similar victims.  As to another victim, however, the Court found the evidence insufficient because the victim's attorney did not submit any reasonable estimate of the victim's total losses.  Rather, that attorney relied on a civil law and a proposed bill that never became law, neither of which established her losses.

Thursday, May 02, 2019

Spence: Courts may Consider Extraterritorial Conduct as Relevant Conduct at Sentencing

In United States v. Spence, No. 17-14976 (May 2, 2019) (Anderson, Ed Carnes, Martin), the Court held that courts may consider extraterritorial conduct to impose an enhancement under the Guidelines.

On appeal, the defendant argued that, in light of the presumption against extraterritorial application of legislation, his distribution of child pornography videos while in Jamaica should not be used to enhance his guideline range.  Joining the Seventh, Eighth, and Tenth Circuits, the Court declined to extend that presumption to a sentencing court's consideration of relevant conduct.  The Court emphasized that: the defendant was not convicted for conduct outside the country, and considering conduct outside the US for sentencing purposes does not mean that he was sentenced for such conduct; and no statutory or Guidelines provision limited a court's consideration to conduct in the US.  The Court acknowledged that its decision might be viewed as being in tension with decisions from the Second and Ninth Circuit but found them unpersuasive and inapplicable to this case.

Tuesday, April 30, 2019

Hano: DNA Testing Exception to Statute of Limitations Applied, and Bruton Does not Apply to Non-Testimonial Statements

In United States v. Hano, No. 18-10510 (Apr. 30, 2019) (William Pryor, Newsom, Rosenthal), the Court upheld the defendants' Hobbs Act robbery convictions.

First, the Court rejected the defendant's argument that the prosecution fell outside the statute of limitations because the statutory DNA testing exception did not apply.  Under that exception, where DNA testing implicates a person in a felony, that event re-starts the statute of limitations.   The Court rejected the defendant's argument that this exception applied only to cases where the default statute of limitations has not yet expired at the time of the DNA testing.

Second, the Court rejected three evidentiary arguments.   In an extended discussion, the Court found no Bruton error in admitting the statements of one of the co-defendants because those statements were non-testimonial and thus fell outside of the Bruton doctrine.  The Court also declined to extend Bruton to non-testimonial statements as a matter of procedural due process.  The Court also found no error in admitting evidence under Rule 404(b)/403 that the defendant traveled to Cuba shortly after the robbery for the purpose of showing that he fled with the proceeds.  And the Court found that the defendant's attempt to exclude DNA evidence from the getaway car was moot because the government did not introduce that evidence in trial.

Third, the Court upheld the denial of the defendant's motion to subpoena the federal DNA database unit.  The defendant sought to access the DNA profile of another person under Brady because other DNA had been discovered on the ski mask at the crime scene.  The Court reasoned that the DNA profile would have, at best, excluded the other person as a contributor of the DNA but could not have proven that his DNA was on the mask.  And, even if the defendant could prove that, it would have shown only that this person came into contact with the items, but would not undermine that the defendant had worn the mask. 

Fourth, the Court found the evidence sufficient to support the convictions for Hobbs Act robbery and Hobbs Act conspiracy. 

Fifth, applying plain error, the Court concluded that the government did not improperly comment during closing argument on one of the defendant's decision not to testify.  The Court found that the prosecutor's comment was instead about defense counsel's failure to rebut or explain evidence.

Lastly, the Court upheld a four-level enhancement under 2B3.1(b)(2)(D) for "otherwise using" a dangerous weapon in the commission of the robbery.  The defendant did more than brandish the firearm because he pointed it at a specific person in an effort to create fear and facilitate compliance with a demand.  And he also implicitly threatened another person who was present.  It did no matter whether the defendant used a toy gun and pointed it at someone who was in on the plot.

Monday, April 29, 2019

Lester: Full Court Declines to Rehear Whether Johnson Retroactively Applies to the Mandatory Guidelines

In Lester v. United States (Apr. 29, 2019), the full court declined to rehear en banc whether Johnson retroactivley applies to the mandatory pre-Booker residual clause in the Guidelines.

Writing for himself, Judge William Pryor authored a lengthy opinion explaining why any ruling extending Johnson to the Guidelines would not be a substantive rule, and therefore would not have retroactive effect in cases on collateral review.  He emphasized that, unlike in the ACCA context, the defendant's sentence would remain within the statutory ranges authorized by Congress, and he could receive the same sentence today.   He also reasoned, in a lengthy discussion, that judicial decisions don't actually change the law but rather recognize what the law has always been.

Judge Martin, joined by Judges Rosenbaum and Jill Pryor, opined that the Eleventh Circuit's decision in In re Griffin was wrong, both that Johnson did not apply to the mandatory Guidelines and that any such ruling would not be retroactive.

Judge Rosenbaum, joined by Judges Martin and Jill Pryor, wrote separately in response to Judge Pryor's more theoretical comments that the Guidelines were never mandatory at all, and that judicial opinions don't actually change what the law always has been.  "He reasons that since the Supreme Court in Booker found that the mandatory Guidelines violated the Sixth Amendment, they 'were never really mandatory,' even though courts applied them that way for two decades.  Hmm.  I doubt the perhaps 1,000-plus inmates who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree. . . .  Under Pryor's reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment.  This heads-I-win-tails-you-lose logic cannot withstand scrutiny."

Delva: Upholding Identity-Theft and Tax Fraud Convictions and Sentences Over Various Challenges

In United States v. Delva, No. 16-12947 (Apr. 29, 2019) (Hull, Marcus, Grant), the Court affirmed the defendants' identity-theft and tax fraud convictions and sentences.

First, the Court upheld the denial of a suppression motion under the automobile exception because probable cause existed to search the defendant's automobile and, in any event, the evidence would have been inevitably discovered.

Second,  the Court found the evidence sufficient to support that the defendant knowingly participated in the criminal activities--including that the defendant knew that the PII belonged to real people, since the fraud was successfully using that information to obtain tax refunds.

Third, the Court found no abuse of discretion in permitting an experienced detective to testify as an expert about the meaning of jargon used in stolen identity refund fraud.

Fourth, the Court upheld the application of a 2-level enhancement under 2B1.1(b)(15)(B) for possession of a firearm in connection with the offenses.  Amidst all the defendants' fraud-related materials and money, they had a rifle leaning up against the wall in the same room and at the same time as they were conducting their fraudulent activities.  One of the defendants also admitted in a post-Miranda statement that firearms were kept in the house to protect them from being robbed.

Lastly, the Court found the defendant's 84-month guideline-range sentence to be substantially reasonable.

Monday, April 22, 2019

Pavlenko: No Standing to Appeal Dismissal of Indictment

In United States v. Pavlenko, No. 17-15047 (Apr. 22, 2019) (William Pryor, Newsom, Rosenthal), the Court held that the defendant lacked Article III standing to appeal the dismissal of an indictment.

The defendant entered a settlement agreement with the government whereby he would agree to return to Russian and abandon his LPR status in the United States and waive any right to return for ten years.  In exchange, the government agreed to dismissal all charges against him.  After the defendant boarded a flight to Russia, the government moved to dismiss, and the court granted the motion and dismissed the indictment in light of the settlement agreement.  On appeal, the defendant argued that the dismissal order deviated from the settlement agreement and imposed conditions on him to which he never agreed.  The Eleventh Circuit, however, concluded that the order did no more than dismiss the indictment against him.  Contrary to his argument, the court's order did not subject him to the continuing supervision.  Because the district court did no more than dismiss the indictment, and thus did not injure him, the defendant lacked standing to appeal the order.

Wednesday, April 17, 2019

Gordillo: High-Capacity Magazine Ten Feet Away from Locked Semi-Automatic Was in "Close Proximity" for 2K2.1

In United States v. Gordillo, No. 18-12095 (Apr. 17, 2019) (Marcus, Black, Walker), the Court upheld the defendant's sentence against a guideline challenge.

Specifically, the defendant challenged his base offense level under 2K2.1 on the ground that his offense did not involve a semi-automatic firearm in "close proximity" to a high-capacity magazine.  The Court concluded that a high-capacity magazine in a bag was in "close proximity" to a locked firearm in a case ten feet away in the same room.  The Court interpreted "close proximity" to encompass both physical distance and accessibility.  Here, ten feet was close physical proximity, and the Court rejected the defendant's argument that the firearm was inaccessible just because it was locked in a separate container.

Corbett: Plain Error in Applying Ten-or-More Victims Enhancement Because Means of Identification Were Merely Sold, not Used

In United States v. Corbett, No. 18-13203 (Apr. 17, 2019) (William Pryor, Newsom, Vratil), the Court reviewed for plain error two unpreserved guideline enhancements.

Despite applying that standard of review, the Court found plain error as to the application of the ten-or-more victims enhancement in 2B1.1(b)(2)(A)(i).  Relying on its earlier precedent in Hall, the Court agreed with the defendant that the court had erred by treating as victims individuals whose means of identification had not been "used."  The Court reiterated that merely selling or transferring identifying information was not a "use" of such information under the Guideline.  The Court found that the error satisfied the remaining plain-error criteria under Molina-Martinez and Rosales-Mireles, even though the court varied downward from the (incorrect) range, and so it vacated the sentence and remanded.

The Court, however, found no plain error with regard to a ten-level loss enhancement under 2B1.1.  The Court "remind[ed] the defense bar of the importance of specific factual and legal argumentation at eveyr stage of sentencing proceedings.  A defendant should 'specifically and clearly object' to any facts in a presentece report that she does not intent to admit and that she wishes to require the government to prove by a preponderance of the evidence."

Tuesday, April 16, 2019

Johnson: 7-5 En Banc Court Upholds Seizure of Free-standing Round of Ammunition During a Terry Risk

In United States v. Paul Johnson, Jr., No. 16-15690 (Apr. 16, 2019), the en banc Court -- by a vote of 7 to 5 -- upheld the constitutionality of the seizure of a single round of ammunition from the defendant's pocket during a Terry frisk.

Writing for the majority, Judge William Pryor (joined by Judges Ed Carnes, Tjofalt, Marcus, Newsom, Branch, and Grant), held that the seizure was permissible under the totality of the particular facts and circumstances of the case because removing it was reasonably related to officer safety.  The Court empashzed that it was 4am, officers had received report of a burglary in a high-crime area, the defendant matched the description of the burglar, the scene was unsecure, and officers reasonably believed that a matching firearm was nearby.  It did not matter that the defendant was handcuffed, since "handcuffs do not always work."  Becaues the Court found its decision controlled by Terry, it rejected the defendant's arguments that Terry was contrary to the original meaning of the Fourth Amendment and should therefore be applied narrowly.

Judge Newsom concurred, opining that he would prefer to adopt a per se rule that an officer is always entitled to seize a bullet during a Terry frisk.

Judge Branch, joined by Judge Grant, concurred, clarifying that the totality of the circumstances approach applies only when determining whether to stop and frisk the person at the outset.  Similar to Judge Newsome, they believed that, if the officer conducting the frisk feels what he reasonably believes to be a weapon, then the officer may seize it under any and all circumstances.

Judge Jordan dissented, criticizing the majority (as well as the concurrences and the government) for failing to meaningfully address the defendant's originalist argument for limiting the reach of Terry.  He explained that, in an earlier opinion, Justice Scalia had determined that Terry was incompatible with the original meaning of the Fourth Amendment, and scholarship supports that view.  And although Terry is binding precedent, it authorized the seizure of "weapons" alone, and Judge Jordan believed that the majority was expanding Terry to permit the seizure of a stand-alone bullet.  His opinion accuses the majority of selectively applying originalism and exempting Terry from originalism even though other Fourth Amendment doctrines are informed by it.

Judge Rosenbaum dissented, interpreting the majority as necessarily and implicitly holding that ammunition may always be seized during a Terry frisk.  She expressly urged the majority to insert a single sentence disavowing that necessary implication of its ruling, but the majority refused.  She criticized that per se rule as a matter of procedure because the government disavowed that rule and the court did not direct the parties to brief it.

Judge Jill Pryor (joined by Judges Wilson, Martin, and Jordan) dissented, opining that the seizure of the ammuntion was unlawful because no reasonable officer could have believed that the bullet posed a threat under the particular facts of the case.  Multiple officers had drawn their guns, handcuffed the defendant, and placed him on the ground; there were no reports or signs of a firearm; there were no other people present; and the defendant complied with all demands.  Like Judge Rosenbaum, she opined that the majority opinion effectively creates a categorical rule authorizing the seizure of a bullet under Terry.  And she opined that the majority opinion impermissibly permits Terry to be used for evidence gathering.

Friday, April 05, 2019

Vereen: Innocent Transitory Possession Defense Unavailable for Felon in Possession Offense

In United States v. Vereen, No. 17-11147 (Apr. 5, 2019) (Marcus, Newsom, Anderson), the Court affirmed the defendant's felon in possession conviction and ACCA sentence.

The defendant's main argument on appeal was that the court erred by refusing to instruct the jury on the "innocent transitory possession defense" (ITP).  The Court concluded that this defense was unavailable because 922(g) did not invite any kind of inquiry into the purpose or timespan of the defendant's possession.  That holding was in line with that reached by the overwhelming majority of the circuits, though the Court observed that the D.C. Circuit had reached a contrary conclusion where the firearm was obtained by innocent means, for no illicit purpose, and for a transitory period of time.  Applying plain error, the Court also rejected the defendant's argument that 922(g) was unconstitutionally vague because the Court had not previously determined whether an ITP defense was available.

As for the ACCA sentence, the Court found that the defendant's Florida aggravated battery convictions qualified under the elements clause under Turner.  And it held that the defendant's Florida battery conviction also qualified under the elements clause because it involved the intentional causation of bodily harm. 

Thursday, April 04, 2019

Moss: Georgia Aggravated Assault is Not a Violent Felony Under the Elements Clause

In United States v. Moss, No. 17-10473 (Apr. 4, 2019) (Wilson, Branch, Anderson), the Court held that Georgia aggravated assault did not satisfy the elements clause of the ACCA because it could be committed recklessly.

The Court relied heavily on its prior decision in Palomino Garcia, which held that an Arizona assault offense with a reckless mens rea did not satisfy the elements clause in the Guidelines.  The Court rejected the government's reliance on Turner, which held that Florida aggravated assault qualified under the elements clause.  Looking only to the face of the Florida assault statute, the Court emphasized that Florida assault required an intentional mens rea, whereas Georgia assault did not.  The Court made no mention of Florida case law showing that aggravated assault could be committed recklessly, even though it looked to Georgia case law to establish that proposition in this case.

Wednesday, April 03, 2019

Cooks: Warrantless Search Supported by Emergency Aid Aspect of Exigent Circumstances Doctrine

In United States v. Cooks, No. 18-10080 (Apr. 3, 2019) (Newsom, Tjoflat, Gilman), the Court upheld the denial of the defendant's motion to suppress.

The Court found that the warrantless search of a crawlspace nailed down by a makeshift plywood door was justified by the "emergency-aid" aspect of the exigent circumstances doctrine.  There was an armed standoff with a gang member that had evolved into a hostage taking situation, and the officers heard drilling sounds coming from the house.  After the standoff ended, and although the officers did not know one way or another, the Court found that they could have reasonably believed that the secured crawlspace contained additional hostages.  And prying open that crawlspace was proportional to the exigency, because the area was large enough to hide a person, and the search took no longer than necessary to verify that nobody was there.

Judge Gilman dissented, opining that nothing suggested that the officers believed or had reason to believe that the defendant was hiding hostages in the crawlspace, let alone that additional people were inside the house.  He disagreed with the majority's reasoning that the officers could have reached that conclusion because they could not have definitively ruled it out.

Wednesday, March 06, 2019

Gandy: Florida Battery by Bodily-Harm Satisfies the Elements Clause, and Courts May Consider Arrest Reports Incorporated in a Plea Agreement

In United States v. Gandy, No. 17-15035 (Mar. 6, 2019) (William Pryor, Rosenbaum, Conway), the Court held that Florida battery of a jail detainee was a crime of violence under the elements clause in the Guidelines.

Although the parties agreed that Florida battery has two alternative elements -- "touching or striking" and "intentional causation of bodily harm" -- the Court reserved judgment on whether "touching or striking" was divisible.  That is so because it concluded that the defendant's conviction was for "intentional causation of harm," and that form of Florida battery necessarily required the use, attempted use, or threatened use of force.  To arrive at that conclusion, the Court relied on an arrest report.  Although arrest reports are not Shepard documents and ordinarily may not be considered, the Court relied on it here because the report was incorporated by reference into a plea agreement, which was a Shepard document.   And the Court concluded that the defendant agreed to the arrest report as the factual basis of his plea, without qualification. 

Judge Rosenbaum dissented, opining that the Shepard documents did not allow the Court to conclude that the defendant was "necessarily" convicted of bodily-harm battery.  On her view, the factual basis for the plea would have satisfied both the touching/striking and bodily-harm elements, and so the court could not conclude that his offense necessarily was for the latter.  And, on her view, the arrest report only supplied the arresting officer's legal conclusion that the defendant committed bodily-harm battery; it did not necessarily show that this was the type of battery for which he was ultimately prosecuted and convicted. 

Padgett: Pro se Filing Stating Intent to File Collateral IAC Attack was not a Notice of Appeal

In United States v. Padgett, No. 16-16144 (Mar. 6, 2019) (Branch, Wilson, Vinson), the Court dismissed the defendant's appeal for lack of jurisdiction.

The defendant was subject to an appeal waiver and a 2255 waiver, with an exception for claims of ineffective assistance of counsel.  At and after sentencing, the defendant confirmed that he had waived his right to appeal.  Immediately after sentencing, the defendant filed a pro se filing in the district court, notifying the court of her intent to file a collateral attack based on effective assistance of counsel.  The district court docketed that filing as a notice of appeal.  In the Eleventh Circuit, the government moved to dismiss the appeal for failure to file a notice of appeal.  The Eleventh Circuit agreed.  Although it recognized that pro se pleadings are liberally construed, it concluded that the defendant was aware of her appellate waiver, and thus did not intend to file a notice of appeal but rather a collateral attack based on ineffective assistance (a claim typically brought collaterally, not on direct appeal).  Nor was the pro se filing the functional equivalent of a notice of appeal, as it failed to reference an appeal or an appellate court.  That the district court docketed the filing as a notice of appeal was not determinative. 

Judge Wilson dissented, opining that he would liberally construe the pro se filing as a notice of appeal, as the district court construed it as such, and it was properly filed in the district court within the 14-day period to appeal.

Gibbs: Brief Roadside Detention at Gunpoint Was a Lawful Traffic Stop

In United States v. Gibbs, No. 17-12474 (Mar. 6, 2019) (Marcus, Dubina, Goldberg), the Court upheld the denial of a motion to suppress.

Officers observed a vehicle drive into oncoming traffic and illegally park in the middle of the street.  Officers approached the vehicle, with its engine still running, and effectively blocked in (and thus detained) two individuals who had just exited the car.  As the officers approached, with their guns drawn, the defendant blurted out that he possessed a firearm.  The Court first determined that the officers had a lawful basis to detain both men, as the situation arose out of a lawful traffic stop.  The officers were justified in briefly detaining the defendant, even though he was not the driver, because based on their location in between cars, the officers could not have detained the driver without also detaining the defendant, and one of the officers did not know at the time which individual was the driver.  Emphasizing the very brief detention and the dangers associated with traffic stops, the Court determined that the detention was not unreasonable under the particular facts and circumstances of the case.  Finally, the Court determined that the officers did not convert the lawful stop into an unlawful one merely by drawing their weapons; rather, the lawfulness of the encounter turned on the validity of the stop, which was lawful.

Thursday, February 21, 2019

Amodeo: Criminal Defendant Lacked Article III Standing to Appeal Order Partially Vacating Final Forfeiture Order

In United States v. Amodeo, No. 15-12643 (Feb. 21, 2019) (William Pryor, Rosenbaum, Moore), the Court held that a criminal defendant lacked Article III standing to appeal the partial vacatur of a final forfeiture order entered in his case.

The preliminary forfeiture order extinguished all of the defendant's interests in the property (here, two shell companies).  After no third parties claimed ownership, the court entered a final order forfeiting the companies to the government.  Subsequently, the defendant's victims brought a lawsuit and named the two companies as defendants.  The government had no interest in defending those companies in the lawsuit, and so it moved to partially vacate the final forfeiture order to divest itself of any ownership in the companies.  The district court granted that request.  The defendant then sought to appeal that order, but the Eleventh Circuit found that it did not aggrieve him in any way.  It reasoned that the preliminary forfeiture order had extinguished his interest in the companies, and the partial vacatur of the final forfeiture order did not revive any ownership interest of his.  Because he had no ownership interest in the companies, and thus no potential liability in the lawsuit, he lacked Article III standing to bring the appeal.

Judge Rosenbaum concurred in the judgment.  She agreed that the defendant lacked standing, but disagreed that Article III standard must always be determined first when more than one non-merits issue could dispose of a case.

Wednesday, February 20, 2019

Pickett: 2255 Movant Failed to Satisfy Burden of Proof Under Beeman Based on Legal Landscape at Time of Sentencing

In United States v. Pickett, No. 17-13476 (Feb. 20, 2019) (Marcus, Dubina, Goldberg), the Court vacated the district court's grant of a 2255 motion based on Johnson and remanded for reconsideration in light of Beeman.

The Court remanded because Beeman was issued after the district court's order, and so the district court did not have an opportunity to apply Beeman's new standard.  Before reaching that conclusion, however, the Court determined that, in light of the current record and legal landscape, the movant did not meet his burden to show that the sentencing court more likely than not relied on the residual clause alone.  Although the Court acknowledged that the Florida battery convictions at issue obviously satisfied the residual clause in February 2007 -- and the district court's 2255 order included a comment reflecting that understanding -- it was unclear whether the sentencing court also relied on the elements clause.  That was so even though there were unpublished opinions saying that the battery convictions did not categorically satisfy the elements clause, and a contrary statement in a published opinion was only dicta.  Thus, even though the sentencing court would have easily determined that the convictions qualified under the residual clause, obviating any need to consider the elements clause, it was not clear what the sentencing court might have actually thought (if anything) about the elements clause.  Because the Court did not know what genuinely happened in that regard, the movant could not meet his burden of proof under Beeman to show that the court more likely than not relied on the residual clause alone, and the Court remanded for the district court to make that determination in the first instance.

Tuesday, February 19, 2019

Harris: Upholding Hobbs Act Extortion Conviction of Former Prison Guard

In United States v. Harris, No. 18-12418 (Feb. 19, 2018) (William Pryor, Rosenbaum, Conway), the Court affirmed the defendant's conviction for Hobbs Act extortion.

First, the Court concluded that the evidence was sufficient to support the extortion conviction of the defendant, a former prison guard who discovered and then appropriated for himself a phone scam in which inmates were posing as government agents and tricking victims into paying fake fines in the form of prepaid debit-card numbers.  The defendant argued that the government failed to prove that he obtained the debit card numbers with the "consent" of the inmates, a required element of extortion, because the inmates had no choice but to turn over the numbers.  After an historical overview of the crime of extortion, the Court explained that "consent" in that context did not require such a degree of voluntariness; rather, a victim consents so long as he retains some degree of choice, even if it is a Hobson's choice.  Here, sufficient evidence showed that the inmates consented to the defendant taking their numbers without reporting him so as to avoid implicating themselves in the scam or possessing contraband.  The Court also found sufficient evidence that the defendant wrongfully used fear, one of the alternative means of extortion.

Second, the Court found that the district court did not violate the defendant's right to present a complete defense by limiting his closing argument.  Specifically, the court preventing him from arguing that, although he might have committed theft, he did not commit extortion.  The court, however, did permit him to argue that, while he may have been guilty of some crime, he was not guilty of extortion.  The court did not abuse its discretion by precluding the defendant from arguing that the government should have charged him with theft, as that risk confusing the jury.  And if the jury did not believe he committed extortion, it would have acquitted him.

Friday, February 15, 2019

Caniff: Private Text Messages Seeking Sexually Explicit Photos from a Minor Constitutes "Making" a "Notice" under 2251(d)

In United States v. Caniff, No. 17-12410 (Feb. 15, 2019) (Ebel (10th), Marcus, Newsom), the Court affirmed the defendant's child sex convictions.

First, and primarily, the Court held that, as a matter of statutory construction, requesting that a minor send sexually explicit photos can support a conviction for "making" a "notice" seeking child pornography, in violation of 2251(d)(1)(A).   The Court rejected the defendant's argument that a "notice" must be sent to the general public or at least a group of people.  Because a public component was not required, the defendant's private text messages with the minor sufficed.

Second, the Court found sufficient evidence that the defendant believed that the victim was a minor.  The victim told the defendant several times that she was 13, was not old enough to drive, and was sexually inexperienced. 

Third, the Court found no abuse of discretion in permitting an officer to testify about the contents of the defendant's cell phone.  The Court rejected the defendant's argument that the officer opined on the ultimate issue, in violation of Rule 704(b), because the officer was not testifying as an expert witness, and lay witnesses may draw on their professional experiences.  In addition, the officer did not expressly opine on the defendant's mental state about the age of the victim, only whether he generally found evidence of illegal activity on the phone.  And any error was harmless in any event because it was the defense, not the government, who first asked the detective the question.

Judge Newsom concurred in part and dissented in part. After discussing his favorite movie and opining that the defendant's conduct was "devlish," he reluctantly opined that the majority's reading of 2251(d) was incorrect and did not reach the defendant's conduct.  As a matter of common language, sending a request via text message was not "making" a "notice."  He found that the word "notice," as used in that particular statutory context, would not be understood by the average American to cover a private text message.  And he rejected the majority's purposive approach, as the defendant's conduct was covered by other statutes.

Tuesday, February 12, 2019

Valois: Upholding Title 46 Convictions and Sentences over Numerous Challenges

In United States v. Valois, et al., No. 17-13535 (Feb. 12, 2019) (Hull, Jordan, Grant), the Court affirmed the defendant's MDLEA convictions over numerous challenges.

First, the Court rejected the defendants' constitutional challenges to the MDLEA as foreclosed by circuit precedent.  Specifically, it rejected their arguments that Congress lacked authority to define and punish felonies on the high seas where there is no connection to the U.S.; that due process prohibited the prosecution of foreign nationals without a nexus to the U.S.; that the MDLEA violates the Fifth and Sixth Amendments by removing jurisdictional facts from the province of the jury; and admission of the Secretary of State certificate to establish jurisdiction violates the Confrontation Clause.

Second, the Court found no abuse of discretion in the denial of the defendants' motion for a mistrial based on the prosecutor's reference in closing arguments to a separate drug seizure.  The reference was not evidence and so did not violate Rule 404(b), and it was the defendant who interjected the prior seizure.  The prosecutor understandably sought to refute the defendant's reliance on that prior seizure.  And the defendants had not shown that the comment was prejudicial given the court's curative instruction to the jury.

Third, the Court rejected the defendants' argument that their Sixth Amendment rights were violated because their attorneys represented defendants involved in the separate drug seizure, and thus had a conflict of interest.  At the time counsel was appointed, there was no known connection between the two seizures; because a connection first arose during the trial, the court was not required to hold a conflict-waiver hearing before the trial began, and the court did hold such a hearing before sentencing.  Moreover, the defendants did not show that their attorneys had any actual conflict because they in fact tried to shift the blame on to the defendants involved in the other seizure.  The Court noted that, in the future, when two boat cases with cocaine are interdicted close in time and geography, and two indictments are filed on the same day, the magistrate judge should consider appointing separate counsel for each defendant because a conflict could have arisen had a defendant one on boat testified against a defendant on the other boat.

Fourth, and relying on prior precedent, the Court held that the defendants were statutorily ineligible for safety-valve relief, and this ineligibility did not violate equal protection.  The Court also suggested, without formally deciding, that the safety valve did not violate the right against self-incrimination by requiring defendants to provide the government with all the information they had, relying on circuit precedent rejecting a similar challenge to the acceptance of responsibility guideline.

Lastly, the Court upheld the denial of a minor-role reduction. 

Wednesday, January 30, 2019

Munksgard: Sufficient Evidence Existed of FDIC-Insured Status

In United States v. Munksgard, No. 16-17654 (Jan. 30, 2019) (Tjoflat, Marcus, Newsom), the Court affirmed the defendant's bank fraud and aggravated identity theft convictions.

As to the bank fraud conviction, the defendant argued that there was insufficient evidence because the government failed to prove that he knew that the bank was FDIC-insured at the time he submitted fraudulent loan applications.   The Court recounted its history of annoyance at the government in previous cases for doing a poor job at proving a bank's insured status.  The Court emphasized that contemporaneous evidence of insurance was best, that prior and subsequent insurance was second best, but that prior or subsequent insurance can be adequate.  In this case, the government submitted sufficient, though hardly overwhelming, evidence because it introduced a certificate of FDIC insurance at the time the bank was chartered, the bank vice president testified that the bank was subsequently insured at the time of trial, and his testimony indicated that the insurance had not lapsed at the relevant time.

As to the aggravated ID theft conviction, the Court concluded that, when the defendant signed another person's name to the fraudulent contract submitted in support of the loan application, he "used" a "means of identification" within the meaning of 1028A.  Emphasizing the plain statutory language and context, the Court rejected the defendant's argument that, because he only signed another person's name without attempting to impersonate that person or harming him, he did not "use" that identification.

Judge Tjoflat dissented.  In a lengthy opinion, he explained that he would have vacated the bank fraud conviction for insufficient evidence of FDIC-insurance status.  He concluded: "The majority goes to great lengths to bail the government out.  Nothing in our precedent compels this, and the Constitution doesn't allow it."

Wednesday, January 23, 2019

Brewster: Habeas Relief Warranted Where Court Exerted Coercive Pressure on Holdout Juror and Counsel Failed to Object

In Brewster v. Att'y Gen, Ala., No. 16-16350 (Jan. 22, 2019) (Ed Carnes, Branch, Fay), the Court reversed the denial of a state-prisoner habeas petition alleging ineffective assistance of counsel.

Over the period of two days of deliberation, the jury repeatedly told the court that they were deadlocked, sending six notes to that effect.  Although federal courts are prohibited from inquiring about the breakdown, the Alabama jury here disclosed how they were divided three times: first 9-3 in favor of conviction, then 11-1 in favor of conviction, and then that one juror was continuing to hold out.  The court gave a formal Allen charge, two additional admonitions to continue deliberating, and then another long instruction emphasizing that the jurors had taken an oath to follow the law and that they must take that oath seriously.  Then, when informed that the holdout juror was doing crossword puzzles, the judge ordered all reading materials removed from the jury room.  Shortly thereafter, the jury returned a guilty verdict.

Applying de novo review (rather than the normal AEDPA deference), the Court found that, under those circumstances, trial counsel was ineffective for failing to once object or move for a mistrial.  There was no rational or strategic basis for refusing to do so.  Quoting Macbeth: "It doesn't take the 'pricking of my thumbs' to know that 'something wickd this way comes' for a defendant when a jury goes from 9 to 3 for conviction to 11 to 1 for conviction and the lone holdout faces the coercive circumstances that this one did."  Or, put another way: "It doesn't take a Clarence Darrow to realize that if a jury has gone from 9 to 3 in favor of conviction to 11 to 1 for it, and is complaining about the lone holdout's behavior and her refusal to go along with the others, that jury is not headed toward an acquittal."  And, the Court concluded, that deficient performance was prejudicial because, due to the court's coercion exerted on the holdout juror, the defendant was legally entitled to a mistrial under both state and federal law.  A lthough "the holdout juror was not threatened with branding or exsanguination, and the jury was not hauled around in a court," which "would have passed muster in seventeenth-century England," it did not not in "twenty-first century Alabama."