Eleventh Circuit Court of Appeals - Published Opinions

Monday, October 28, 2019

Ochoa: Upholding Hobbs Act and Firearm Convictions/Sentences Over Various Challenges

In United States v. Ochoa, No. 16-17609 (Oct. 25, 2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's Hobbs Act and firearm convictions and sentences over various challenges.

First, the Court found no abuse of discretion in the limitation of cross examination of an officer about his unrelated personal misuse of police computers and efforts to conceal that misuse.  Although that decade-old misconduct was relevant to his character for truthfulness, it was only marginally relevant in this case, and the district court reasonably found that it was likely to confuse or mislead the jury.  Any error was harmless in any event in light of other evidence at trial.

Second, the Court upheld the denial of pre- and post-Miranda statements.  As to the former, the Court found that public safety exception to Miranda applied where the agent asked questions that he reasonably believed were necessary to secure a residence after the arrest of the defendant, who was a suspect in an armed robbery where someone was shot.  Although the officer did not have any specific reason to suspect that any particular person remained in the residence, his concern that other unknown individuals might have remained inside, despite the defendant's assertion to the contrary, was reasonable given the number of people who had already emerged from the house.  As to the post-Miranda statements, the Court found that the defendant's statements that he did not "agree with" the waiver of rights provision on the form did not constitute an unambiguous invocation of his right to counsel or to remain silent.  Any error was harmless in any event.

Third, the Court rejected the defendant's argument that the district court should have dismissed one count of the original indictment with prejudice due to a violation of the Speedy Trial Act.  After a mistrial, the retrial did not occur within 70 days and the indictment was therefore subject to dismissal.  However, the court did not abuse its discretion by dismissing it without (rather than with) prejudice because 922(g)(1) was a serious offense, neither party alerted the court to the violation, and the defense identified no prejudice.  The Court also rejected the defendant's argument that the district court should have dismissed the second indictment under the Speedy Trial Act on the ground that it was not filed within 30 days of his "arrest."  The Court rejected the argument that the defendant was "arrested" for purposes of the Act when he was transferred from one federal prison to FDC for purposes of awaiting re-trial on one dismissed count after having been convicted on other charges.

Fourth, the Court found that the evidence in the particular case was sufficient to support the convictions for Hobbs Act robbery, 924(c), and 922(g)(1).

Fifth, the Court upheld the defendant's career offender enhancement on the ground that Florida armed robbery and second-degree murder were crimes of violence under the elements clause.  As to the robbery, the Court included a footnote reiterating its earlier suggestion in Fritts that, after 1976, sudden snatching never constituted robbery under Florida law.

Lastly, the Court upheld an enhancement under 2K2.1 because a large capacity magazine was found in close proximity to a firearm.  Although the firearm was ultimately found outside the residence, and not in close proximity to the magazine in the bedroom drawer, the district court found that the firearm had previously been in the same room, and possibly even the same drawer, as the magazine.

Judge Rosenbaum dissented on two points.  First, although she agreed that there was no abuse of discretion in limiting the cross examination, she did not agree with the majority's suggestion that the officer's efforts to obstruct an investigation into himself had no bearing on the likelihood that he may have manipulated evidence in an investigation of another person.  Second, she believed that the public safety exception did not apply because the officers were searching a private home and specifically asked about a weapon that could only be operated by another person; and, although a close question, she did not believe the error was harmless.