Feldman: Upholding Opoid Distribution/Money Laundering Convictions Over Several Challenges but Vacating Sentence due to Alleyne Error

In United States v. Feldman, No. 16-12978 (Aug. 30, 2019) (Julie Carnes, Jill Pryor, Antoon), the Court affirmed the defendants' convictions for distributing schedule II (oxycodone and methadone) and IV (alprazolam and diazepam) substances not for a legitimate medial purpose and money laundering, but it vacated one defendant's sentence under Alleyne.

First, the Court found no abuse of discretion in the denial of a motion to sever.  Although two of the counts pertained only to one of the two defendants, the other defendant had not met her burden to show believe that the jury could not make an individualized determination, and any prejudice was avoided by a limiting instruction.

Second, the Court found no plain error in connection with an isolated statement by the government expert extrapolating from his review of a sample of the defendant's medical files.  The Court found no prejudice by that one stray comment, as it came during his three days of testimony where he otherwise focused entirely on the files he did review. 

Third, the Court found that the defendants had impliedly consented to a mistrial in the first prosecution, and therefore there was no double jeopardy violation in allowing the second trial to proceed.

Fourth, the Court found no reversible prosecutorial misconduct on three points.  First, the prosecutor did not improperly comment on facts not in evidence.  Second, even if the prosecutor improperly inserted an uncharged theory of conviction during closing, there was no prejudice because there was a curative instruction and there was sufficient evidence of guilt.  And, third, the prosecutor's comment that a victim who died had a "butt-load" of drugs in his body was not unfairly prejudicial because, although graphic, the statement was consistent with the evidence.

Fifth, the Court found no abuse of discretion in declining to instruct the jury that it is ethical for a physician to relieve a patient's pain regardless of the victim's history of addiction.  The Court found that this was not a correct statement of the law, and it was a partisan argumentative instruction about facts that the defendant hope the jury would find.

Sixth, the Court found sufficient evidence to support the convictions.  As for the distribution charges, the Court found the evidence sufficient to show that the drugs ingested were prescribed by the defendant and that they were the but-for cause of the victims' deaths.  The Court explained that, under the Supreme Court's decision in Burrage, the schedule II drugs needed to be only one but-for cause of death.  The Court rejected the defendant's argument that it needed to be the sole but-for cause, and it was therefore irrelevant if the schedule IV drugs also played a necessary role in the deaths.

Finally, the Court vacated one of the defendant's 20-year mandatory minimum sentence under 841(b)(1)(C), because the jury's special verdict did not sufficiently reflect that it had found that the schedule II drugs were the but-for cause of the victims' deaths.  Rather, the verdict was consistent with a finding that the schedule II and schedule IV drugs caused their deaths together in the aggregate.  Absent that jury finding, the court erred in imposing the mandatory minimum under Alleyne and Burrage.

Baptiste: Affirming Tax Fraud Conviction and Sentence Over Various Challenges but Remanding for Allocution

In United States v. Baptiste, No. 16-17175 (Newsom, William Pryor, Branch), the Court affirmed the defendant's tax fraud conviction and sentence, but remanded for the defendant to allocute at sentencing.

First, the Court found that the district court did not abuse its discretion under Rule 404(b) by refusing to allow the defendant to put on evidence that another individual had duped others into participating similar schemes.  The defendant argued that this evidence would have shown only that individual's capacity to implement the scheme rather than his character or propensity.  The Court concluded that, because the evidence could have reasonably been viewed either as permissible capacity evidence or as impermissible propensity evidence, there was no abuse of discretion.

Second, the Court rejected the defendant's argument that the prosecutor failed to correct false witness testimony that he was a citizen when in fact he was granted citizenship in exchange for testifying against the defendant.  In addition, while a government witness falsely testified about a date, the government was not required to correct it because it was due to mistake or confusion rather than a willful intent to deceive.  And the Court rejected the defendant's argument that the government failed to disclose a cooperation agreement of a testifying witness because it was speculative and the defendant could not show the testimony was material.  The Court also rejected the defendant's argument that the prosecutor mischaracterized evidence at trial during his closing argument.

Third, the defendant argued that the testimony of the brother to a defense witness—that the defendant had told the witness he would give her a car in exchange for favorable testimony—was incorrectly admitted as a statement against interest.  The Court found it unnecessary to decide that question because it found the testimony harmless in light of overwhelming evidence of guilt.

Fourth, the Court concluded that, even if inadmissible hearsay, the same testimony nonetheless bore "sufficient indicia of reliability" for purposes of an obstruction of justice enhancement at sentencing.  And the district court was not required to make express findings on the record that the testimony was reliable because the record as a whole showed that it was.  The Court also upheld sentencing enhancements based on loss amount and the number and vulnerability of the victims.

Finally, the parties agreed that the district court plainly erred by failing to address the defendant personally and give him an opportunity to allocute, even though the court asked "does the defendant wish to address me," and the attorney answered on the defendant's behalf.

Taylor: NIT Warrant Violated Rule 41(b), Federal Magistrates Act, and Fourth Amendment, but Good-Faith Exception Applied

In United States v. Taylor, No. 17-14915 (Aug. 28, 2019) (Newsom, Tjoflat, Antoon), the Court upheld the denial of a suppression motion based on the good-faith exception.

At issue was a warrant authorizing the government's use of the Network Investigative Technique ("NIT"), a technique that allowed the government to unmask the IP addresses of those who visited a child pornography site on the dark web.  The warrant was issued in the Eastern District of Virginia, but the government used the NIT with respect to the defendant, whose computer was located in Alabama.  As a result, and joining several other circuits, the Court agreed that the NIT warrant violated Rule 41(b) (NIT did not fall into an exception for extraterritorial "tracking device" warrants), the scope of the magistrate's authority under the Federal Magistrates Act, and ultimately the Fourth Amendment.  

However, and joining every circuit to address the question, the Court found that the good-faith exception applied, because the exclusionary rule applied to a warrant that was void ab initio just as it did to other defective warrants.  From the perspective of deterring officer misconduct, relying on a facially valid warrant that later turns out to have been void is no different than relying on a facially valid warrant that later turns to have been based on a dubious probable-cause determination.  Finally, as to the facts of this case, the Court rejected the defendant's argument that the good-faith exception should not apply because the warrant application misled the magistrate that the property to be search was located in the Eastern District of Virginia.  The Court found that, on the facts here, the officers sufficiently disclosed the scope of their intended search.

Judge Tjoflat dissented solely on the last point, arguing that, on the facts of this case, the officers knew or should have known that there was an issue with jurisdiction and that their search would occur outside the district, yet they repeatedly told the magistrate that the search would take place in the district.  A few quotes from his lengthy dissent: "If the law condones this conduct, it makes a mockery of the warrant process." "[W]e should demand the utmost candor in warrant applications.  Before today, I thought we did. . .  I'm not advocating to change the law—the law already requires candor in warrant applications.  I'm asking courts to take this requirement seriously."  "I recognize that my decision would have an unfortunate result. . . . Such a result is the price we pay to protect the Fourth Amendment rights of the public.  Therefore, we must follow the law even when faced with unpleasant outcomes." 

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.

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.

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.