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.

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.

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.

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."

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.

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. 

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.

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.