Rothstein: Government Retained Discretion to Withdraw a Placeholder Rule 35 Motion

In United States v. Rothstein, No. 18-11796 (Sept. 30, 2019) (Tjoflat, William Pryor, Grant), the Court affirmed the grant of a government motion to withdraw a Rule 35 motion.

The Court rejected the defendant's argument that, although the government had discretion not to file a Rule 35 motion at all, the government lacked discretion to withdraw the placeholder motion that it filed for purposes of preserving the court's jurisdiction in the event it elected to proceed.  Although the cooperation agreement itself said nothing about withdrawing a Rule 35 motion, the Court reasoned that accepting the defendant's argument would allow a technicality to intrude on prosecutorial discretion.  In addition, the government specifically advised the defendant in the placeholder motion that it retained the right to withdraw the motion if the defendant breached the cooperation agreement, and that the cooperation was not yet complete.  Finally, the Court found no abuse of discretion in denying the defendant an evidentiary hearing to show that he complied with the cooperation agreement, because the only issue was a legal one about whether the government retained the discretion to withdraw the motion.

Boston: Principal to Florida Armed Robbery Satisfies the ACCA's Elements Clause

In Boston v. United States, No. 17-13870 (Sept. 30, 2019) (William Pryor, Jill Pryor, Robreno), the Court upheld the denial of the movant's Johnson/ACCA claim.

The Court held that the movant's Florida principal-to-robbery-with-a-firearm convictions satisfied the ACCA's elements clause.  Under Florida law, an aidor and abettor is punished the same as a principal offender, and so he necessarily commits all of the elements of principal Florida armed robbery.  The Court relied on its decision in In re Colon, which applied the same logic to aiding and abetting a Hobbs Act robbery.

Judge Jill Pryor concurred in the judgment, expressing doubts that In re Colon was correctly decided.  She emphasized that, under Florida law, an aidor and abettor does not have to be physically or constructively present at the commission of the offense.  She criticized In re Colon for taking the legal fiction—that one who aids and abets a robbery by driving the getaway car is deemed to have committed robbery itself—and using that to say that the getaway driver committed a crime involving the element of force.  She believed that this result was contrary to the text and puprose of the ACCA.

Annamalai: Reversing Bankruptcy Fraud Convictions, Fugitive Harboring Convictions, and Loss Amount

In United States v. Annamalai, No. 15-11854 (Sept. 24, 2019) (Jordan, Wilson, Moore (S.D. Ga.)), the Court affirmed in part and reversed in part the defendant's fraud convictions and sentences.

First, the Court rejected the defendant's argument that the government improperly joined 34 offenses and the court erred by denying his motion to sever some of the charges.  The Court reasoned that the charges arose out of the same general fraudulent scheme, and the defendant could not show prejudice just because the jury convicted him of several counts despite insufficient evidence.

Second, the Court rejected the defendant's argument that the prosecution, conviction, and sentencing violated his First Amendment right to freedom of religion.  The government's case was not an impermissible attack on the defendant's Hindu religion but rather involved a scheme where the defendant abused his position as a Hindu priest and engaged in fraud.

Third, the Court reversed the defendant's bankruptcy fraud convictions because the funds at issue were acquired after the Hindu temple filed for bankruptcy and after the trustee shut it down.  Similarly, a post bankruptcy petition check did not constitute property of the bankruptcy estate and thus was not prosecutable.  The evidence was therefore insufficient.  And because the conspiracy and money laundering counts were based on the substantive bankruptcy fraud counts, the Court reversed those too.

Fourth, the Court reversed the defendant's conviction for conspiracy to harbor a fugitive.  The Court found insufficient evidence of an agreement to commit an act to help harbor or conceal a person for whom a warrant was issued.  The defendant told his wife to tell the fugitive to use cash, but that mere provision of advice was insufficient without providing some sort of material or physical assistance.  The wife then gave false statements to agents about the fugitive and his whereabouts, but that too was insufficient to constitute harboring or concealing.  Lastly, the fact that the fugitive purchased a plane ticket out of the US was insufficient to show that the defendant or his wife harbored or concealed him.

Fifth, the Court found insufficient evidence to support the loss amount at sentencing.  That finding was based on the speculative assumption that every one of 467 credit card disputes filed against the Hindu temple involved a fraudulent charge, even though only 85 of them included records of fraud, from which a government agent extrapolated.  While extrapolation may be permissible in some scenarios, the methodology here assumed absolute fraud in every instance and was based on too much speculation: the government assumed that all 467 disputes involved fraud even without any indication that it did; the government did not know whether any of the disputes were resolved in favor of the Hindu temple; and the defense presented evidence that some of the disputes had been resolved.

Kirby: 1,440 CP Sentence "Equal to" a Life Sentence under the Guidelines and Was Substantively Reasonable

In United States v. Kirby, No. 18-11253 (Sept. 17, 2019) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's 1,440-month child pornography sentence.

The defendant's convictions resulted in an offense level of 43, which produced a life sentence under the Guidelines.  However, the statutes of conviction were capped below life.  Accordingly, under USSG 5G1.2(d), the court was required to run the counts consecutively to the extent they produced a combined sentence "equal to" the Guidelines recommendation of life.  The question here was what numerical sentence is "equal to" life imprisonment.  The district court believed that a life sentence was one of indefinite duration, and it therefore ran the statutory maximum sentences consecutively, which produced a sentence of 1,440 months.  That was the closest numerical sentence to an indefinite sentence that the law allowed.  The Court rejected the defendant's argument that a life sentence was instead 470 months because the Commission had defined it that way for statistical purposes.

The Court also concluded that the sentence was substantively reasonable.  The district court thoroughly discussed the defendant's heinous conduct and creation of child pornography, his breach of public trust as a police officer, and his failure to accept responsibility for his actions. 

Gillis: Federal Kidnapping Does not Satisfy the Elements Clause in the Federal Solicitation Statute

In United States v. Gillis, No. 16-16482 (Sept. 13, 2019) (per curiam) (Jill Pryor, Anderson, Hull), the Court affirmed the defendant's child enticement conviction but reversed his conviction for soliciting another to commit federal kidnapping.

On the enticement count, the Court found the evidence sufficient.  It rejected his arguments that a Craigslist ad did not show his intent to induce a minor to engage in sexual activity; that an undercover agent introduced that idea into the conversation; the defendant abandoned any intent by canceling the first planned meeting with the minor; and, in setting up the second meeting, he sought only to meet with the fictional father.

The Court also rejected his argument that, even if technically inadmissible under Rule 702, the court deprived him of his Fifth and Sixth Amendment right to present a complete defense by limiting the testimony of his expert and prohibiting another expert from testifying at all.  Although the defendant argued that the testimony was necessary to contextualize his online communications and negate the subjective intent element, that was not a compelling reason to make an exception to the expert witness rules of evidence.  The mere fact that their testimony would have been helpful was not enough.

However, in a lengthy analysis, the Court reversed a solicitation conviction under 18 U.S.C. 373 that was predicated on the federal kidnapping offense in 18 U.S.C. 1201(a), because it concluded that federal kidnapping did not satisfy the elements clause in 373 (which includes the same key language as the elements clause in 924(c)(3)(A) but also additional language not in 924(c)(3)(A)).  The Court concluded that, under its precedent in McGuire which was reinforced by Davis, the categorical approach governed 373; and, under that approach, federal kidnapping did not qualify because it is indivisible and, based on non-far-fetched hypotheticals, may be committed by means of inveiglement and/or decoy and then maintained by pyschological force, which was insufficient.

Judge Hull dissented in part, opining that a conduct-based approach applied based primarily on the text of 373's elements clause, the defendant's real-world conduct involved violent force, and kidnapping by confinement qualified even under the categorical approach, in part because there were no successful prosecutions that did not involve physical force capable of causing pain or injury.

Waters: Affirming Wire Fraud Conviction Over Takhalov-Based Challenges

In United States v. Waters, No. 18-11333 (Sept. 10, 2019) (Ed Carnes, Julie Carnes, Clevenger), the Court affirmed the defendant's wire fraud conviction and sentence.

First, the Court found no abuse of discretion in declining to give the Takhalov-based wire fraud instruction proposed by the defense.  The Court found that the proposed instruction, which sought to distinguish between defrauding and deceiving, was an incomplete statement of the law and would have confused the jury.  The Court also found that the proposed instruction did not seriously impair his ability to present his theories of defense.

Second, and applying a deferential standard of review due to the defendant's failure to renew his motion for judgment of acquittal at the close of the evidence, the Court found the evidence sufficient that the defendant intended to harm the victim of the fraud.  The Court rejected the defendant's argument that, under Takhalov, lies about his creditworthiness to a lender did not affect the benefit of the bargain between the parties, as there was ample evidence that these lies sought to cover up an issue that threatened to kill the deal.

Third, the Court rejected the defendant's argument that the district court erred by not making an on-the-record waiver inquiry about his decision not to testify at trial.  Although there is no per se rule requiring that inquiry, the defendant argued this case was exceptional because he was the only person in a position to refute the prosecution's case.  The Court rejected that as a ground for relief because it did not establish his decision to remain silent was involuntarily made.

Lastly, the Court found no plain error with regard to an erroneous factual comment made by the judge after sentence had been imposed.  The judge inaccurately stated that the defendant had gotten a break because the loan had been repaid, when in fact there was never a loan to repay.  But this "slip up" was a "stray comment" at the end of sentencing, not a relevant factual finding.  And the Court found no prejudice because the judge otherwise had an open mind and explained why he thought the defendant did deserve leniency.