Smith: State PD Not Ineffective When Correctly Advised Client About State Plea Deal

 In United States v. Smith, No. 19-12686 (Hull, William Pryor, Marcus), the Court affirmed the defendant’s felon-in-possession conviction and sentence.

As to the conviction, the defendant argued that his state public defender was ineffective during state plea negotiations, and that the federal indictment should be dismissed.  Assuming without deciding that the Sixth Amendment attached during state plea negotiations, the Court determined that there was no ineffective assistance of counsel.  There was no deficient performance because the state public defender correctly communicated, and reasonably advised the client to accept, the state prosecutor’s 5-year plea deal, which would have resulted in the federal prosecutor dropping the federal charge carrying a 15-year mandatory minimum.  And there was no prejudice because the client was adamant that he would not have accepted a 5-year deal in state court because he wanted to go to trial, and he believed that the federal prosecutor was bluffing about filing charges.

As to the sentence, the Court affirmed the ACCA sentence because its prior precedent in Smith established that Florida sale of cocaine under 893.13 was a “serious drug offense.”

Santos: 2255 Movant Could Not Satisfy Burden Under Beeman to Show Reliance on Residual Clause

In Santos v. United States, No. 17-14291 (Marcus, William Pryor, Hull), the Court affirmed the denial of a 2255 motion challenging an ACCA enhancement in light of Johnson.

The Court held that the movant could not meet his burden to establish that the sentencing judge relied solely on the residual clause, as required by Beeman.  The ACCA enhancement had been based in part on a prior Florida battery conviction.  However, the sentencing record was silent as to which definitional clause was used, and the case law at the time of sentencing would have allowed the judge to impose the enhancement under either the residual clause and the elements clause.  Finally, although the district court denied the motion before Beeman was decided, the Court determined that a remand would be futile.  Unlike the Eleventh Circuit’s earlier decision in Pickett, the district court here had already made a finding that the record was unclear as to which clause had been used, and the district court handling the 2255 motion was not the original sentencing judge.  Thus, the Court did not decide whether the “touch or strike” aspect of Florida battery was divisible, and it stated that this question remains an open one.

Taylor: Dual-Object Drug Conspiracy Including Crack Element is a "Covered Offense" Under Section 404 of the First Step Act

 In United States v. Taylor, No. 19-12872 (Grant, Marcus, Axon (N.D. Ala.)), the Court vacated the denial of a  motion for a reduced sentence under Section 404 of the First Step Act.

 The Court held that a dual-object drug conspiracy count including both a crack and a powder element is a “covered offense.”  Even though the Fair Sentencing Act did not modify the statutory penalties for the powder offense, it did modify the statutory penalties for the crack offense.  And that satisfied the “covered offense” definition in Section 404(a).  The district court therefore had discretion to reduce the sentence, though it is not permitted to conduct a plenary or de novo re-sentencing proceeding, and it cannot reduce the sentence based on changes in the law beyond those mandated by the Fair Sentencing Act.   

Graham: Upholding Conviction Under Marinello for Obstructing IRS Collection Action

 In United States v. Graham, No. 18-15299 (Dec. 4, 2020) (Grant, Marcus, Julie Carnes), the Court affirmed the defendant’s conviction for obstructing the IRS.

In addition to proving that the defendant knowingly and corruptly tried to obstruct or impede the administration of the tax laws, the Supreme Court’s decision in Marinello also required it to prove a nexus between the defendant’s conduct and a particular administrative proceeding.  The Court held that the IRS’s extensive collection activities qualified as such a proceeding, and there was otherwise sufficient evidence to support the conviction based on the defendant falsifying a bill of exchange to the IRS.

The Court also rejected the defendant’s evidentiary challenges.  It reviewed the exclusion of evidence for plain error because he failed to make a proffer about what the evidence would show.  First, the Court found no plain error in limiting a defense witness’ testimony because  the defendant was permitted to present his defense, and he failed to draw a connection between that defense and the limits placed on the witness.  Second,  there was no error under Rule 404(b) in admitting the defendant’s prior misdemeanor conviction for failing to file a tax return.  Third, there was no plain error in striking an answer the government’s expert gave on cross-examination because it did not affect his substantial rights.  And, finally, there was no error in excluding evidence of the defendant’s other efforts to comply with the IRS because good character evidence is inadmissible.

 

Watkins: Reversing Order Granting Suppression Based on the Inevitable Discovery Exception

In United States v. Watkins, No. 18-14336 (Dec. 3, 2020) (Ed Carnes, Luck, Marcus), the Court reversed an order granting the defendant’s motion to suppress on the government’s appeal.

The government conceded that it violated the Fourth Amendment when a GPS tracking device placed inside an intercepted package re-activated inside the defendant’s home.  However, the Court concluded that the inevitable discovery exception to the exclusionary rule applied.  The Court reasoned that, based on leads and evidence already in the agents’ possession, there was a reasonable probability that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result.  The district court erroneously disregarded the magistrate judge’s credibility findings without holding a new hearing.

Johnson: Upholding 922(g)(9) Conviction Against Rehaif Challenge

In United States v. Johnson, No. 19-10915 (Rosenbaum, Martin, Tallman (CA9)), the Court affirmed the defendant’s conviction under 18 U.S.C. 922(g)(9) for being a domestic-violence misdemeanant in possession of a firearm.

In a lengthy opinion, the Court held that, after Rehaif, the defendant must know three things to violate 922(g)(9): 1) he was convicted of a misdemeanor; 2) to be convicted of that crime, he had to knowingly or recklessly use at least the “slightest offensive touching”; and 3) he knew that the victim was his spouse.  Those are the facts that render his offense a “misdemeanor crime of domestic violence.”  And because the record—namely, a bench trial stipulation and undisputed PSI facts about a prior Florida battery conviction—established the defendant’s knowledge of all three points, he could not show that his substantial rights were affected under the third prong of plain-error review.   Because he knew the facts that established his unlawful status, it was no defense that he did know that status prohibited his firearm possession.  Nor was it a defense that his civil rights were never abrogated.  The Court also found no plain error with respect to the defendant’s equal protection and commerce clause claims.

Judge Martin dissented.  She believed that Rehaif requires the government to prove that the defendant knew his conviction qualified as a “misdemeanor crime of domestic violence” under federal law.  She also believed that the government must prove knowledge of that status as the time of the firearm possession; by referring only to the stipulation and PSI facts, the majority instead looked to the defendant’s knowledge of that status at the time of the federal trial.  Finally, she believed that, given the absence of such knowledge and the complexity of the “misdemeanor crime of domestic violence” analysis, plain error was satisfied, and the majority created a split with a Seventh Circuit decision.

Bobal: Supervised Release Condition Banning Computer Use for Life Not Plainly Unconstitutional After Packingham

In United States v. Bobal, 19-10678 (Nov. 30, 2020) (William Pryor, Hull, Marcus), the Court affirmed the defendant’s enticement conviction and lifetime supervised release condition prohibiting him from using a computer.

As for the conviction, the Court held that the district court did not abuse its discretion by denying a motion for a mistrial based on the prosecutor’s comments at closing.  The comments were not improper and did not substantially affect the verdict.

As for the supervised release condition, and applying plain error, the Court found that the lifetime computer restriction was not plainly unconstitutional in light of Packingham.  The Court found that Packingham was distinguishable because it applied to those who completed their sentences, it applied even to sex offenders who did not use a computer to commit the offense, and the restriction here contained an exception for work.  The Court joined three other circuits who have found no plain error in a similar restriction, and it rejected a Third Circuit opinion that ruled that blanket computer restrictions would rarely be permissible after Packingham.

Trader: No Reasonable Expectation of Privacy in Email/IP Addresses Post-Carpenter

In United States v. Trader, No. 17-15611 (Nov. 25, 2020) (William Pryor, Hull, Marcus), the Court affirmed the defendant’s enticement conviction and life sentence.

First, the Court held that the Supreme Court’s decision in Carpenter did not establish a reasonable expectation of privacy in email addresses or IP addresses.  The Court held that the third-party doctrine applied because the defendant affirmatively and voluntarily conveyed that information when he downloaded and used an app.  The Court rejected the defendant’s argument that email and IP addresses are akin to cell phone or location records, as neither directly records an individual’s location and is only incidentally associated with cell phones.

Second, the Court held that, based on the totality of the circumstances, the warrant application established probable cause to believe that the defendant’s home contained evidence of a crime.

Third, the Court held that the life sentence was not substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to the guidelines and too little weight to his redeeming qualities.

Shah: No Proof of Motive Required for Conviction to Accept Healthcare Kickbacks

In United States v. Shah, No. 19-12319 (William Pryor, Hull, Marcus), the Court affirmed the defendant’s conviction for receiving healthcare kickback payments.

The parties ultimately agreed that the statue requires no proof of the defendant’s  motivation for accepting the kickbacks, so long as he accepts it knowingly and willfully.  The Court agreed, though it distinguished the case of a payee (no motive required) from that of a payor (motive required).  Although the jury instruction in this case was erroneous, the Court found that the error was harmless because, if anything, the instruction harmed the government by requiring the government to prove more than what was required, and the district court properly instructed the jury on willfulness.

Delgado: Upholding Drug and Silencer Convictions

In United States v. Delgado, No. 19-11997 (Nov. 23, 2020) (Baker (S.D. Ga.), Newsom, Branch), the Court affirmed the defendant’s drug and silencer convictions.

First, the Court concluded that a search warrant was supported by probable cause to believe that there would be drugs in the defendant’s home.  Authorities intercepted packages from overseas that were addressed to the defendant at his residence; it didn’t matter that the packages were not actually delivered.  And, in any event, the good faith exception applied.

Second, the district court did not clearly err by considering as relevant conduct another package that was addressed to the defendant, even though it was the subject of a count that was dismissed.  The Court found it unnecessary to determine whether the Supreme Court’s decision in McFadden applied to relevant conduct for sentencing purposes because the government proved by a preponderance of circumstantial evidence that the defendant knew the package contained a controlled substance.

Finally, the district court did not clearly err by imposing an enhancement in USSG 2D1.1(b)(1) for possessing a firearm in connection with a drug offense.  There were numerous firearms and silencers found at the home with the drugs, and the defendant could not meet his burden to establish that their connection was improbable.

Gonzalez: Upholding Denial of Coram Nobis as Untimely Due to Tactical Delay

In Gonzalez v. United States, No. 19-11182 (William Pryor, Hull, Marcus) (Nov. 20, 2020), the Court affirmed the denial of a petition for coram nobis as untimely.

The petitioner sought relief after removal proceedings were commenced, arguing that he received ineffective assistance of counsel about the immigration consequences of his criminal conviction from over a decade earlier.  Reviewing for clear error, the Court upheld the district court’s determination that the petitioner failed to provide sound reasons for delay.  The Court found it fatal that the petitioner’s counsel made a tactical decision to delay because he did not believe that petitioner would actually be removed under the immigration policy then in effect.

Johnson: No Plain Error in Refusing to Move for Third Acceptance Point Due to Pre-Plea Obstruction

In United States v. Johnson, No. 17-15259 (Nov. 19, 2020) (Julie Carnes, Marcus, Kelly (CA10)), the Court affirmed the defendant’s sentence.

First, the Court found no clear error in holding the defendant accountable for more than 400 grams of marijuana for purposes of USSG 2D1.1.  To the extent the district court relied on hearsay about the weight of marijuana per shipment, that hearsay was sufficiently reliable.

Second, the Court found no clear error in applying an obstruction enhancement where the defendant used discovery from the case to threaten potential witnesses.  The Court rejected his argument that the enhancement applied only to conduct attempting to hinder an investigation.  And it did not matter that the threats were not communicated directly to the witnesses.

Third, the Court found no clear error in applying an enhancement because he committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.  The defendant made more money from the drug operation than he did from any legitimate employment, and he earned more than minimum wage.  The Court rejected the defendant’s argument that the livelihood enhancement did not apply whenever the defendant had some legitimate employment.

Fourth, the district court did not plainly error by sua sponte denying the defendant a third point off for acceptance of responsibility.  The government failed to move for the third point because the defendant obstructed justice before making his guilty plea.  The Court engaged in a lengthy discussion of the case law about when the government may refuse to move for a third point—whether it may be withheld only where the acceptance is untimely, or whether it may also be withheld where the defendant engages in conduct inconsistent with USSG 3E1.1.  Although it was clear that the government cannot withhold due to a defendant’s refusal to waive his appellate rights, little else was clear in this Circuit, and there was no consensus in other circuits.  Accordingly, the defendant could not show plain error.

Finally, the Court found that the defendant’s low-end 151-month sentence was not substantively unreasonable.  The Court rejected the defendant’s unwarranted disparity argument, finding that his co-defendants were not similarly situated. 

Senter: Vacating Denial of 2255 For Failure To Address Johnson/ACCA Claim

In Senter v. United States, No. 18-11627 (Nov. 13, 2020) (Baker (S.D. Ga.), Newsom, Branch), the Court vacated the denial of a 2255 motion based on Johnson.

In his 2255 motion, the movant argued that his 1988 Alabama attempted robbery offense was a non-existent offense under state law, and it therefore did not satisfy the ACCA’s elements clause because it did not have any elements at all.  The district court, however, mischaracterized that claim as a collateral attack on the validity of the state conviction.  Because the district court failed to address the movant’s ACCA/Johnson claim, the Eleventh Circuit vacated and remanded for the district court to do so in the first instance.

Judge Branch dissented, opining that the district court adequately addressed the movant’s claim.

Joseph: Affirming Heroin Convictions Over Various Challenges

In United States v. Joseph, No. 19-11198 (Oct. 27, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s drug convictions and sentence.

First, the Court upheld the denial of a motion to suppress.  An officer testified that he saw drugs inside the car and, although two witnesses testified that they could not see through the tinted, the district court did not clearly err by crediting the officer’s testimony.

Second, the Court found no error in the district court’s denial of three motions for mistrial.  The prosecutor’s reference to the defendant’s false identity did not warrant a mistrial because it was inextricably intertwined with the drug offense and thus admissible at trial.  An officer’s testimony about the dangers of fentanyl did not violate Rule 403.  And an outburst by the defendant’s brother at trial did not warrant a mistrial because the jurors who saw it said they could still be fair and base their verdict only on the law and evidence.

Third, the Court found no reversible evidentiary error.  DNA evidence did not reveal that the defendant engaged in identity theft.  And a rental application qualified as a business record because, although the testifying witness was not the record custodian for the business, she was still a qualified witness.

Finally, the defendant’s 20-year guideline-range sentence was not substantively unreasonable.  Contrary to the defendant’s argument, the court presumed that the defendant was innocent of a pending firearm charge, and it declined the government’s request for a variance based on evidence of identity theft.

Wilson: Upholding Conviction for Possession of Unregistered Sawed-off Shotgun

In United States v. Wilson, No. 17-12379 (Oct. 27, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for possession of an unregistered sawed-off shotgun.

First, the Court held that the district court had subject matter jurisdiction over the prosecution, holding that the National Firearms Act does not violate the Second or Tenth Amendments.

Second, the Court held that the evidence was sufficient to support the conviction.  The Court clarified that the government was required to prove that the defendant was aware of any feature of the weapon that subjected it to registration.  Here, the evidence established that the defendant knew that his shotgun was either was less than 26 inches long or had a barrel of less than 18 inches, and that he knew it was not an antique.

Third, the Court upheld the denial of a motion to suppress evidence discovered during a traffic stop.  After making a valid stop traffic stop, the officer was allowed to arrest the defendant because there was probable cause to believe that the defendant committed a criminal offense, namely refusing to comply with a lawful order to produce his driver’s license.  The Court also found that the subsequent search of the vehicle was a lawful inventory search because the police standard operating procedures mandated towing and impounding where the operator is arrested or the car created a traffic hazard, both of which existed here.

Fourth, the Court held that the defendant knowingly and voluntarily waived his right to counsel at trial.  And, in any event, there was no prejudice on the facts here.

Finally, the Court upheld a sentencing enhancement under USSG 2K2.1(a)(4)(B) for being a “prohibited person” under 922(g).  The evidence showed, and the defendant did not dispute, that he was an unlawful user of marijuana at the time he committed the offense.  The government did not need to show that he was under the influence at the time he possessed the gun.

 

Bazantes: Affirming False Payroll Convictions But Vacating Loss Enhancement

In United States v. Bazantes, No. 17-15721 (Oct. 26, 2020) (Ed Carnes, Branch, Tjoflat),  the Court affirmed the defendants’ false statement convictions but vacated their sentences.

The defendants first argued that certified payroll forms containing false statements were not  made or used in a matter within the jurisdiction of a federal agency.  The Eleventh Circuit rejected that argument because federal law, the Copeland Act, covers statements in payroll records that government contractors and subcontractors must furnish to the agency in charge of the project.

The defendants next argued that the indictment and the evidence failed to charge or establish that the false payroll records were material.  The Court held that the indictment sufficiently alleged materiality even though the records were not submitted directly to the decision-making body they had the potential to influence.  And the Court held that the evidence was sufficient because it established that the records had the potential to influence the federal agency, even though they were not directly submitted to that agency.

The Court vacated the loss enhancement at sentencing because the government failed to prove that there was any pecuniary loss to the agency.  While the fraud compromised the integrity of the government contracting process, that did not establish a financial loss.  And the agency ultimately received the full, bargained-for benefit of the defendants’ labor.  The Court rejected the argument that the defendants’ gain could be used instead of loss where there was no actual loss; personal gain can be used only where there is a loss that cannot be reasonably determined.

Muho: Upholding Fraud Convictions and USSG 2B1.1(b)(17)(A) Enhancement

In United States v. Muho, No. 18-11248 (Oct. 22, 2020) (Watkins (M.D. Ala.), Martin, Newsom), the Court affirmed the defendant’s fraud convictions and sentence.

First, the district court did not err in failing to sua sponte reinstate counsel for the defendant after he validly invoked his right to self-representation.

Second, the district court did not abuse its discretion by denying a Rule 17(b) motion to subpoena two witnesses.  Although the district court did not explain its denial, the Court affirmed because the defendant failed to articulate specific facts to show the relevancy and necessary of the witness’ testimony.  In any event, the error was harmless due to the weight of the evidence and the defendant was able to present the defense that would have been supported by the two witnesses.

Third, in an issue of first impression, the Court upheld a two-level enhancement under USSG 2B1.1(b)(17)(A) for deriving more than $1 million in gross receipts from a bank as a result of the offense.  In a lengthy discussion, the Court held that, in a case involving property held by a financial institution for a depositor, the enhancement applies if the institution has rights in the property and was victimized by the offense conduct.

Finally, the Court held that the defendant’s 264-month sentence, which was below the guideline range, was not substantively unreasonable.

Grow: Affirming Healthcare Fraud Convictions but Vacating Dual-Object Conspiracy Sentence

In United States v. Grow, No. 18-11809 (Oct. 21, 2020) (Luck, Ed Carnes, Marcus) (per curiam), the Court affirmed the defendant’s convictions but vacated his sentence.

First, the Court that the evidence was sufficient to support convictions for conspiracy to commit healthcare and wire fraud, substantive healthcare fraud, paying and receiving illegal kickbacks, and money laundering.

Second, the Court rejected that the defendant’s argument that a district court’s jury instruction was coercive.  On Friday, the court told the jury that it had another trial starting on Monday, and that the jury could reach a partial verdict.  However, the court told the jury that there was no time limit on its deliberations, and the jury did in fact continue deliberating into Monday and ultimately did not return a partial verdict.

Third, the Court found that the defendant invited any error with regard to the district court’s failure to instruct the jury on wire fraud, one of the objects of the conspiracy.  The defendant not only agreed with the court’s proposed instructions, but his own proposed instructions omitted any instruction on wire fraud.

Finally, the Court vacated the 20-year sentence for the conspiracy count.  Although that sentence was below the statutory maximum for the wire fraud object, it exceeded the ten-year statutory maximum for the healthcare fraud object.  And because the jury returned a general verdict, and was instructed it could find the defendant guilty if it found him guilty on either or both of the objects of the conspiracy, the Court could not discern the object(s) for which the jury found him guilty.  Following circuit precedent, the Court vacated the sentence and remanded for the government to either consent to a sentence based on the ten-year maximum or retry the defendant with a special verdict.

Iriele: Lay Expert Can Testify About Handwriting Learned During Course of Criminal Investigation

In United States v. Iriele, No. 17-13455 (Oct. 9, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the pharmacist defendant’s convictions stemming from the illegal dispensation of prescription medications.

On appeal, the defendant raised 15 claims of error.  However, the Court addressed only  a few of them because the remainder did not warrant discussion.  The Court “remind[ed] counsel that raising a plethora of issues is not good advocacy.”

First, the defendant challenged the admission of testimony by a non-expert law enforcement agent who investigated the defendant’s schemes and told the jury that a ledger contained the defendant’s handwriting.  The Court upheld the admission of that testimony under Rule 901(b)(2).  Joining every circuit to address the issue, the Court concluded that a lay witness cannot become familiar with someone’s handwriting when he does so solely for the purpose of identifying it at trial; that is the role of an expert.  But a lay witness can become familiar with handwriting during the course of a criminal investigation, even if he later testifies about it at trial.

Second, the Court found the evidence sufficient to support the defendant’s drug conspiracy, drug distribution, and money-laundering convictions.  As to the drug convictions, the Court concluded that sufficient circumstantial evidence established that the defendant personally knew that doctors conspired to issue prescriptions without a legitimate medical purpose, and that he voluntarily joined that conspiracy by filling prescriptions.  The Court also found the evidence sufficient to establish that the defendant conspired to commit promotional money laundering.

Third, and reviewing for plain error, the Court found no reversible error with respect two jury instructions.  On the drug counts, the district court plainly erred by failing to instruct the jury that the pharmacist must know that the doctor issued the prescription without a legitimate medical purpose.  But the defendant could not show prejudice because the evidence was overwhelming in that regard.  On the money-laundering conspiracy count, the court failed to expressly set out the elements of the offense, but the instructions as a whole sufficiently conveyed them.  And although the court did not convey everything to the jury about financial transaction money laundering, he could not show prejudice due to overwhelming evidence of guilt on an omitted element.

Gallardo: Upholding Cocaine Conspiracy Conviction Over Multiple Challenges

In United States v. Gallardo, No. 18-11812 (Oct. 9, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine.

First, the Court found no abuse of discretion in denying a mistrial based on an agent’s false rebuttal testimony because the defendant did not meet his burden to show prejudice.  The district court gave a curative instruction, and the agent’s testimony only hurt his own credibility.

Second, there was no error in denying a motion for a new trial on the ground that the weight of the evidence established that the conspiracy involved only one kilogram of cocaine rather than five kilograms.  The Court found ample evidence that, although the confidential source was the one pushing for a five-to-seven kilogram deal, the defendant agreed to sell that amount, even though he was caught with only one kilogram of cocaine.

Third, applying plain error, the Court found no Brady violation with respect to the government’s belated disclosure that the confidential source had been deactivated due to self-dealing.  The defendant could not show a reasonable probability that he would have been acquitted, as the defendant used that evidence in his defense to his advantage.   And there was no Giglio violation because evidence of the source’s deactivation did not reveal any false trial testimony.

Fourth, and again applying plain error, the Court found that the district court did not err by failing to sua sponte grant a new trial based on alleged sentencing entrapment or sentencing factor manipulation due to the confidential source’s repeated requests for more than the one kilogram to which the defendant was predisposed.  The Eleventh Circuit does not recognize sentencing entrapment as a viable defense.  And his sentencing manipulation claim failed because the remedy was merely a lower sentence, not a new trial; the Eleventh Circuit has consistently rejected such claims based on the government’s decision to involve a large quantity of drugs in its sting operation; and, in any event, the defendant was a willing participant in the larger conspiracy.

Gayden: Upholding Prescription Drug Convictions Over Multiple Challenges

 In United States v. Gayden, No. 18-14182 (Oct. 9, 2020) (Tallman (CA9), Martin, Rosenbaum), the Court affirmed the defendant’s convictions and sentence for unlawfully distributing prescription drugs.

First, the Court found no abuse of discretion related to the government’s pre-indictment delay because, even assuming that the defendant could show prejudice, he could not show that the government deliberately delayed to gain a tactical advantage.

Second, the Court upheld the denial of a motion to suppress.  Applying the third party doctrine, and rejecting the defendant’s reliance on the Supreme Court’s decision in Carpenter, the Court found that the defendant did not have a reasonable expectation in prescriptions he wrote for patients, and he voluntarily disclosed those records to others.

Third, the district court did not abuse its discretion by denying the defendant’s motion to exclude the government’s expert witness under Daubert.  Although the defendant argued that the expert was exposed to irrelevant and inflammatory information about the defendant before forming his opinion, the defendant was able to cross examine the expert.

Fourth, the Court found no procedural or substantive error with respect to the sentence.   As for procedural error, the Court found no ex post facto violation by considering his conduct before Florida law pertaining to the standard of care was amended because his conduct was prohibited both before and after the amendment; and an obstruction enhancement was appropriate because the defendant “updated” his records after a state search warrant (but before a federal search warrant) was executed.  Lastly, the Court found that his 235-month sentence was not substantively unreasonable.

Bruce: Finding Reasonable Suspicion Based on an Anonymous 911 Tip

In United States v. Bruce, No. 18-10969 (Oct. 8, 2020) (Grant, Lagoa, Martin), the Court affirmed the denial of a motion to suppress.

First, the Court held that there was reasonable suspicion to stop the defendant.  An anonymous 911 call at 3am reported that men in a high-crime area were outside of a white car, one of them had a gun, and there might be a shooting any minute.  Officers arrived at the location and saw two men sitting in a car at the address.  Relying heavily on the Supreme Court’s decision in Navarette, the Court found that the tip was sufficiently reliable because it gave a first-hand contemporaneous account, and it supplied reasonable suspicion, even though the officers did not observe any criminal activity when they arrived at the scene.  The officers could have reasonably believed that the men in the car were the men being described by the tipster, they could have been hiding their dispute from the police, nothing the police observed undermined the tip, and the police were not required to watch and wait for a shooting to occur or risk their lives by approaching for a consensual encounter.

Second, the Court rejected the defendant’s argument that the police needed more than reasonable suspicion because the car was parked in the curtilage of a home.  Because that fact-specific argument was raised for the first time on appeal, and there was little information about the home or the defendant’s relationship to it, the defendant could not establish plain error.  The Court declined to remand for fact-finding, as doing so would undermine the plain-error doctrine.

Judge Martin dissented.  She agreed that the anonymous tip was sufficiently reliable, but she believed that any reasonable suspicion generated by the tip had dissipated when the officers arrived and merely saw two men sitting in a car with the dome light on.  She disagreed that an ongoing violent conflict was disguisable, and believed that the majority’s contrary conclusion was speculative.  She believed the officers should have observed the car and the occupants’ conduct, or should have conducted a consensual encounter.

Amede: Upholding Drug Conviction an Sentence Over Various Challenges

 In United States v. Amede, No. 18-11172 (Oct. 8, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for attempted possession with intent to distribute five kilograms of cocaine.

First, the Court upheld the denial of the defendant’s motion to exclude three recorded phone calls between a co-conspirator and undercover officer to arrange the drug deal.  The Court held that the statements were admissible under the co-conspirator hearsay exception, because they were made during the course and in furtherance of the conspiracy, even if the defendant had not joined the conspiracy until after the calls were made (though he already had).

 Second, the district court did not constructively amend the indictment by omitting “willfully” from the indictment's “knowingly and willfully” allegation.  The government was only required to prove that the defendant acted knowingly or intentionally, not willfully.  So the indictment’s inclusion of “willfully” was mere surplusage that the district court was free to omit.

 Third, the Court found the evidence sufficient to sustain the conviction because it established that the defendant acted knowingly and was attempting to possess cocaine with intent to distribute it.

Fourth, the Court held that the district court did not abuse its discretion by limiting cross-examination and the defendant’s own testimony regarding a duress defense.  There was no evidence that the defendant had no reasonable opportunity to escape or to inform the police that others were threatening his family or coercing him to do the drug deal.  His subjective belief alone that law enforcement would not have protected his family abroad was insufficient.  In any event, any error was harmless because the defense was still able to elicit testimony to support the duress defense.

Fifth, the Court found that, under the particular facts and circumstances, the defendant knowingly and voluntarily waived the right to counsel at sentencing after refusing to cooperate with his retained substitute counsel or his original court-appointed counsel.

Innocent: Affirming 922(g) Convictions Over Rehaif Challenge

 In United States v. Innocent & Jones, Nos. 19-10112, 18-15210 (Oct. 8, 2020) (William Pryor, Tjoflat, Hull), the Court affirmed 922(g) convictions over a Rehaif challenge.

Applying plain error review, the Court agreed that the defendants’ pre-Rehaif indictments were erroneous in light of Rehaif, and that error was now plain.  But the Court concluded that the defendants could not show a reasonable probability of a different result, because circumstantial evidence established that each knew of their felon status.  Although one defendant had never served more than a year in prison and had  a low intelligence score during a competency evaluation, that was not enough to meet his burden in light of his four prior felony convictions.  The other defendant admitted he was a felon at the time of arrest, had a prior felony conviction for being a felon in possession, had multiple prior felonies for which he served many years in prison, and immediately dropped the gun when the police approached.   The Court rejected the defendants’ arguments that plain error review should not apply at all.

 The Court also affirmed an ACCA enhancement based in part on Florida aggravated assault.  The defendant invited the error at sentencing by agreeing that this offense qualified as a violent felony.  And, in any event, he could not show plain error because circuit precedent foreclosed his argument.

Abreu: Reversal for Insufficient Evidence Alone Does Not Establish Actual Innocence for Unjust Conviction Statute

 In United States v. Abreu, 18-13965 (Oct. 1, 2020) (Jordan, Newsom, Hall), the Court affirmed the denial of a petition for a certificate of innocence under the Unjust Conviction Statute.

 The Eleventh Circuit had previously reversed the petitioner’s fraud convictions for insufficient evidence.  However, the Court held that, even assuming such a reversal  (or an acquittal) could itself entitle a person to a certificate of innocence, the appellate decision did not demonstrate the petitioner’s actual innocence.  The Court held only that there was no direct or circumstantial evidence from which a jury could find guilty beyond a reasonable doubt.  And because the petitioner relied only on the appellate decision, without otherwise alleging or proving actual innocence, the district court did not abuse its discretion by denying the petition.

 Judge Newsom concurred in the judgment.  He opined that an appellate decision reversing for insufficient evidence, by itself, can never establish innocence under the actual-innocence prong of the the statute.

Conage: ACCA Case Certifying Question about "Purchasing" Trafficking Quantity to Florida Supreme Court

 In United States v. Conage, No. 17-13975 (Sept. 30, 2020) (Julie Carnes, Ed Carnes, Clevenger), the Court certified a question to the Florida Supreme Court about the Florida trafficking statute in 893.135.

 The question was whether cocaine trafficking under 893.135(1)(b)1 is a “serious drug offense” under the ACCA.  That Florida statute is indivisible, and it prohibits “purchasing” a trafficking quantity of drugs.  To satisfy the ACCA’s definition of a “serious drug offense,” the offense must “involve” certain acts, one of which is possession with intent to distribute.  Thus, the question was whether purchasing a trafficking quantity under 893.15 “involves” actual or constructive “possession” of the drug being purchased.  If not, then the statute is categorically overbroad, and it will never qualify as an ACCA predicate.  However, because Florida law did not specify the elements of trafficking by purchase, and did not otherwise define the term “purchase,” the Court certified that issue to the Florida Supreme Court.

Bolatete: Upholding Conviction for Possessing Unregistered Silencer Over Constitutional Challenges

 In United States v. Bolatete, No. 18-14184 (Sept. 29, 2020) (Ed Carnes, Branch, Luck), the Court affirmed the defendant’s conviction and sentence for possessing an unregistered silencer.

 First, the Court held that the National Firearms Act was constitutional under Congress’ taxing power.  It explained the binding circuit precedent foreclosed the defendant’s contrary arguments.

 Second, applying plain error review, the Court rejected the defendant’s argument that the Act imposes an unconstitutional tax because it imposes impermissible fees on the exercise of Second Amendment rights.  There was no decision addressing that argument, so any error was not plain.  For the same reason, the Court also found no plain error as to the defendant’s argument that the Act’s application to silencers violates the Second Amendment.

 Third, the Court found that there was sufficient evidence to support the jury’s finding that he was not entrapped.  Although the defendant initially told the undercover officer that he did not want a silencer, there were others facts that showed a predisposition to receive and possess an unregistered silencer.

 Fourth, as to sentencing, the Court found that any guideline error was harmless because the court said it would impose the same 60-month sentence anyway, and that upward variance was not substantively unreasonable. 

Boyd: Enforcing Sentence Appeal Waiver Where Defendant Challenged Calculation of Guidelines

 In United States v. Boyd, No. 18-11063 (Sept. 16, 2020) (Branch, Marcus, Huck), the Court granted the government’s motion to dismiss the appeal based on a sentence appeal waiver.

 The appeal waiver barred the defendant from appealing his sentence unless the court imposed a sentence “that exceeds the advisory guideline range.”  Although the court imposed a guideline sentence, the defendant argued that the waiver did not bar his argument challenging the calculation of the guideline range.  Rejecting the defendant’s argument that the waiver was ambiguous, the Court held that the “advisory guideline range” clearly referred to the range calculated by the district court.  The Court also found that, based on the record, the defendant knowingly and voluntarily agreed to the waiver.

Davila-Mendoza: MDLEA Prosecution for Drug Trafficking in Foreign Waters Exceeded Congress' Authority

 In United States v. Davila-Mendoza et al., No. 17-12038 (Aug. 26, 2020) (Branch, Jill Pryor, Boggs), the Court vacated the defendants’ MDLEA convictions on the ground that the statute, as applied, exceeded Congress’ constitutional authority.

 The drug-trafficking activities in this case occurred in the territorial waters of a consenting foreign country, not the high seas.  The Court first concluded that, as applied, the MDLEA exceeded Congress’ authority under the Foreign Commerce Clause.  The Court assumed, without deciding, that this clause had the same scope as the interstate commerce clause.  Applying that framework, the defendants’ conduct lacked a “substantial effect” on commerce between the United States and foreign nations.  There was no allegation or evidence that drug trafficking in waters of a foreign nation by foreign nationals on a foreign boat of drugs not bound for the US substantially affected US commerce with foreign nations.  The Court rejected the government’s argument that wholly foreign drug trafficking impacted the international drug trade, which in turn could impact US commerce with foreign nations.  The Court also rejected the government’s argument that this prosecution was an exercise of Congress’ authority under the Necessary and Proper Clause to enforce a bilateral treaty with Jamaica, because the MDLEA was enacted before the treaty and thus could not have effectuated it.

Mastin: Extending Rule of Michigan v. Summers from Search Warrants to Arrest Warrants

 In United States v. Mastin, No. 18-14241 (Aug. 26, 2020) (Grant, William Pryor, Antoon), the Court affirmed the defendant’s felon in possession conviction.

 The Court upheld the denial of a motion to suppress the gun.  The gun fell out of the defendant’s waistband after the police ordered him to get on the ground and crawl out of a hotel room where the officers were executing arrest warrants on others.  First, the Court explained that, based on the totality of the circumstances, the officers could enter the hotel room to carry out the arrest warrants because they had a reasonable belief that it was the suspects’ dwelling and that one of them was there.  Second, the Court rejected the defendant’s argument that it was unreasonable to require him to crawl out of the room, because officers may briefly detain those on the premises not only while they execute a search warrant but also while they execute an arrest warrant.  In so holding, the Court extended the Supreme Court’s decision in Michigan v. Summers in a manner that the Ninth Circuit had not.

The Court also rejected the defendant’s argument that he was deprived of a fair trial because the court limited his right to cross examine a police witness and develop his defense theory.  The Court found no abuse of discretion because the questions he wanted to ask would not have been probative of bias and would have confused the jury.

Jimenez: Upholding Visa Fraud and Money Laundering Convictions

 In United States v. Jimenez, No. 18-10569 (Aug. 25, 2020) (Hull, Wilson, Lagoa), the Court affirmed the defendant’s immigration-fraud conspiracy and money laundering convictions.

 The Court held that sufficient evidence supported the immigration-fraud conspiracy conviction because the  material misrepresentations he conspired to make were in documents “required by immigration laws and regulations.”  The Court rejected his argument that the document in question, an I-140 petition, was not such a document.  And the Court held that there was sufficient evidence that the defendant conspired to make false statements in the I-140 petitions in order to obtain visas for Chinese nationals.  Because the evidence was sufficient to support the immigration-fraud conspiracy, the jury could have also convicted him of money laundering because the visa fraud conspiracy was a “specified lawful activity” for money-laundering purposes.

Estrada: Upholding Convictions for Smuggling Cuban Baseball Players

 In United States v. Estrada, No. 17-15405 (Aug. 13, 2020) (Jill Pryor, Rosenbaum, Branch), the Court affirmed the defendants' convictions for smuggling baseball players out of Cuba into the United States.

 First, the Court rejected as foreclosed by prior precedent the defendants' arguments that the Cuban Adjustment Act and Wet-Foot/Dry-Foot policy established “prior official authorization” for the players to enter the US.  The Court also rejected the argument that 1324(a)(2)’s “prior official authorization” component was unconstitutionally vague.

 Second, the Court found that the evidence was sufficient to support the defendants' convictions for both aiding and abetting alien smuggling and conspiracy to commit alien smuggling.

Third, the Court found no abuse of discretion in five evidentiary rulings.  Two witnesses were permitted to give lay (as opposed to expert) testimony about government unblocking licenses and visas.  The court did not improperly limit the defendants’ ability to cross examine those two government witnesses about whether they acted in good faith to comply with government regulations.  The court properly admitted evidence of uncharged violence and extortion because it was intrinsic evidence necessary to complete the story of the crimes.  The court properly admitted hearsay under the co-conspirator exception.  Finally, the court did not err by refusing to strike a government witness’ testimony because the court allowed the defendant to  put on evidence showing that the witness had lied, and his credibility was a matter for the jury.

Carter: Two Prior Drug Offenses Were Committed Separately Because Only One Received Location-Based Enhancement

 In United States v. Carter, No. 18-14806 (Aug. 12, 2020) (Grant, William Pryor, Antoon), the Court upheld the defendant’s ACCA sentence.

 The issue was whether two prior Alabama drug offenses were committed on separate occasions.  Based on a review of the indictment and plea admissions, the Court held that they were more likely than not committed separately, because only one of the two offenses received a location-based enhancement under state law.

McKathan: Probationer was "Compelled" For Fifth Amendment Purposes to Truthfully Answer Probation Officer's Questions

 In McKathan v. United States, No. 17-13358 (Aug. 12, 2020) (Rosenbaum, Branch, Dubina), the Court vacated the denial of a 2255 motion asserting ineffective assistance of counsel for failing to file a motion to suppress statements that he made to a probation officer while he was on supervised release.

 The question was whether the movant would have established a violation of his privilege against self-incrimination.  Because he never invoked the privilege, he had to show that he was compelled to make the incriminating statements.  Resolving that question affirmatively, the Court concluded that, in light of binding precedent, he was faced with a “classic penalty situation” because he could reasonably believe that his supervised release would be revoked if he did not truthfully answer the probation officer’s questions.  The Court remanded for the district court to determine if the statements would been admissible based on the inevitable discovery doctrine.

 Judge Branch dissented, opining that it was unreasonable for the movant to believe he faced a “classic penalty situation.”

Green: RICO Conspiracy Is Not a Crime of Violence Under 924(c)

In United States v. Green, No. 17-10346 (Aug. 11, 2020) (Wilson, Grant, Hinkle), the Court affirmed in part and vacated in part. 

First, the Court held that RICO conspiracy is not a “crime of violence” under the elements clause in 924(c)(3)(A).  The Court reasoned that, like Hobbs Act conspiracy, RICO conspiracy was premised on a mere agreement to participate in unlawful activity and does not require an overt act. 

Second, the Court held that one of the defendant’s 120-year sentence was procedurally unreasonable because the district court failed to adequately clarify the applicable guideline range, which was determined to be 210-262 months at the initial sentencing hearing.  The district court also clearly erred by finding that the defendant participated in a murder, which stipulated cell phone records made physically impossible.

 Third, the Court upheld the denial of a motion to suppress cell-site data acquired pursuant to state court orders consistent with section 2703(d) of the Stored Communications Act.  For one defendant, the Court found that he abandoned any interest in his cell phone by failing to recover the phone during the course of four years in the government’s possession.  For other defendants, the Court found that the good-faith exception to the exclusionary rule applied: with respect to cell-site data because the government reasonably relied on the state court orders, which were issued five years before Carpenter; and with respect to real-time tracking data, the legality of which remains open today.

 Fourth, the Court found no abuse of discretion in denying a peremptory strike because it violated the voir dire procedure, under which he agreed to jointly exercise peremptory strikes with the other defendants.

 Fifth, the Court found that the district court erroneously admitted testimony concerning street rumors that one of the defendants committed murder.  That testimony was not admissible under 801(d)(2)€ because the witness did not hear it from co-conspirators, only through street rumors.  However, the Court found the error to be harmless given other substantial evidence involving that defendant’s involvement in the murder.

 Based on a review of the record, the Court rejected various evidentiary claims, found the evidence sufficient, and found no error with regard to inconsistent verdicts.

Walked: Reversing Denial of Government Motion for Forfeiture in Money Laundering Case

 In United States v. Walked, No. 18-11951 (Aug. 11, 2020) (Martin, Grant, Lagoa), the Court reversed the denial of the government’s forfeiture motion.

 The Court held that, if a defendant is convicted of a money laundering scheme that caused no financial harm to an innocently involved bank, a forfeiture order is still mandatory.  Applying the mandatory forfeiture statute in 18 U.S.C. 982(a)(1), the Court concluded that there was property “involved in” the scheme.  The Court rejected the defendant’s arguments that laundered money is not “property” under the statute, and that laundered money could not be used to calculate his forfeiture obligation because the money was returned to the bank as part of the scheme.  Finally, the Court held that the district court erred by holding that the Eighth Amendment imposed a $10,000 per transaction ceiling, and the Court remanded for the district court to consider whether a $10 million forfeiture award violated the Eighth Amendment.

 Judge Lagoa concurred in part and dissented in part.  She disagreed with a portion of the majority opinion suggesting that the government was entitled to substitute asset forfeiture under 21 U.S.C. 853(p), as the government had not sought forfeiture under that statute.  And because the district court had not yet made factual findings on the Eighth Amendment issue, she would not opine on whether a $10,000 per transaction maximum was excessive.

Henry: Downward Adjustment Under USSG 5G1.3(b) is Mandatory Notwithstanding Booker

 In United States v. Henry, No. 18-15251 (Aug. 7, 2020) (William Pryor, Grant, Antoon), the Court vacated the district court’s refusal to adjust the defendant’s sentence under USSG 5G1.3(b) based on time served on a related state case.

Although there was no dispute that the criteria for an adjustment under 5G1.3 were satisfied, the district court refused to apply it because it determined that the Guidelines were advisory.  Disagreeing with other circuits, the Eleventh Circuit reached the contrary conclusion, holding that an adjustment under 5G1.3 is mandatory, notwithstanding Booker.  The Court reasoned that Booker rendered advisory only the Guideline provisions that relate to the guideline range.  But 5G1.3 relates to the imposition of the sentence and comes in to play only after the guideline range has been determined.  And because its application can only reduce (not increase) the defendant’s sentence, treating it as mandatory does not violate the Sixth Amendment.

Knights: Encounter Between Officers and Defendant Was Consensual, Not a Seizure

In United States v. Knights, No. 19-10083 (Aug.  3, 2020) (William Pryor, Rosenbaum, Michael Moore), the Court upheld the denial of a motion to suppress.

Officers parked a patrol car close to the defendant’s car and then approached him.  The Court held that this was a consensual encounter that did not rise to the level of a seizure because a reasonable person would have felt free to leave.  In fact, the defendant’s companion ignored the officers and left, and the defendant could have also driven away.  The officers did not display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Nor did they activate their lights or siren.  The defendant was free to abandon his car in a high-crime area because two officers were there, and he could have returned when they left, and the officers’ use of a flashlight to did not communicate a show of authority.

Competa: No Additional Competency Hearings Required Before Trial and Sentencing

In United States v. Cometa, No. 19-11282 (Aug. 3, 2020) (William Pryor, Rosenbaum, Luck), the Court upheld the denial of additional competency hearings before trial and sentencing.

The Court found no abuse of discretion because an expert opined that he was competent before trial.  And the defendant’s continued understanding of the proceedings, ability to consult with counsel, and ability to assist with his defense established that there was no bona fide doubt about his competency after the district court initially found him competent.

Melgen: Upholding Medicare Fraud Convictions Over Multiple Challenges

In United States v. Melgen, No. 18-10991 (July 31, 2020) (Grant, Martin, Lagoa), the Court affirmed the defendant’s Medicare fraud convictions and sentence.

First, the Court rejected the defendant’s argument that the district court erred by giving the pattern instruction on materiality.  The Court rejected the defendant’s reliance on a Supreme Court case addressing the False Claims Act.

Second, the Court found no error in the introduction of summary charts comparing the defendant’s billing to peer physicians.  The charts were admissible under Rule 1006.  The Confrontation Clause did not permit the defendant to cross examine decision-makers about the criteria used to make the charts (namely, the prosecutors).  And no expert witness was required to admit the charts.

Third, the Court rejected five errors about his trial.  First, the district court did not err in admitting evidence of multi-dosing, since it was probative of his profit motive.  Second, no mistrial was required due  to a witness’ false testimony because the court immediately issued a thorough curative instruction.  Third, the court’s refusal to instruct the jury that a sample of patient files was not statistically random did not require a mistrial, because the court instructed the jury to disregard any statements concerning statistical confidence.  Fourth, the district court did not commit plain error by giving the jury unredacted copies of the indictment because the court told the jury that it was not evidence of guilt and there was no potential prejudice.  Finally, no mistrial was required by contact between the government and defense witnesses after the court conducted a hearing and determined that the contact had not been prejudicial or altered any testimony.

Fourth, the Court concluded that sufficient evidence supported the convictions, as the defendant’s argument went to the weight of the evidence.

Fifth, the Court upheld the denial of a motion for new trial based on a Brady violation, which was based on medical testimony by a government witness at sentencing.  This testimony was neither new nor likely to change the outcome of the trial.  And it was merely impeachment evidence, and so not the basis of a new trial under Rule 33. 

Finally, as to the sentence, the Court found no clear error in the loss amount, as the government presented enough evidence that the sample patient group was representative of the defendant’s patient population.  And his below-guideline sentence was not substantively unreasonable.

Smith: Upholding Hobbs Act Robbery Conviction Against Individual Victims and Holding that Section 403 of the First Step Act Does Not Apply Retroactively

In United States v. Smith, No. 18-13969 (July 30, 2020) (Ed Carnes, Luck, Marcus), the Court affirmed the defendant’s Hobbs Act robbery and 924(c) convictions.

First, the Court held that the district court’s finding that a photographic lineup was not unduly suggestive was not clearly erroneous.  And the Court held that admission of the defendant’s rap video at trial did not violate the First Amendment or Rule 403, as it had significant probative value for contested issues of identity and display of a firearm.

Second, as to one Hobbs Act robbery conviction, the Court held that the defendant’s proposed jury instruction about how to satisfy interstate commerce element in the context of an individual (as opposed to a business) was incorrect, because it changed illustrative examples to exclusive examples.  The Court also held that the evidence was sufficient to show that his robbery affected interstate commerce because he stole a thumb drive containing software that the victim used for her business, and that business was engaged in interstate commerce.

Third, and joining other circuits, the Court held that Section 403 of the First Step Act, limiting the stacking of 924(c) convictions, applies only to cases where a sentence has not yet been “imposed.”  And a sentence is “imposed” when the district court enters a final judgment, not when the sentence becomes final on appeal.

Finally, the Court rejected the defendant’s challenges to his 92-year sentence.  It found no Eighth Amendment violation because he robbed four people at gunpoint and caused severe injury to one, and the sentence was below the statutory maximum.  The sentence was also not substantively unreasonable because all but 121 months were mandated by statute, and the court did not abuse its discretion in considering the 3553(a) factors.

Carmichael: Upholding Denial of 2255 Motion Based on IAC

In Carmichael v. United States, No. 17-13822 (July 22, 2020) (Proctor (ND Ala), Wilson, Newsom), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.

The government conceded, and the Court agreed, that counsel performed deficiently by failing to communicate Carmichael’s total 40-year sentence, seek a negotiated plea as requested, or relay 10-year and 20-year plea offers.  However, the Court concluded that Carmichael could not show prejudice because he could not show that he would have accepted the plea offer had it been communicated to him.  The offers were conditioned on his substantial assistance and “super-cooperation,” and Carmichael did not show that he was willing or able to do so before he went to trial and was convicted, or that the government would have deemed his cooperation satisfactory.

Hall: Upholding 40-Year Child Pornography Sentence

In United States v. Hall, No. 18-14145 (July 21, 2020) (Ed Carnes, Rosenbaum, Vinson (ND Fla)), the Court affirmed the defendant’s 40-year sentence for receiving child pornography, an upward variance from a guideline range of 15 years.

First, the Court rejected the defendant’s argument that the sentencing court improperly relied on unreliable hearsay evidence from an earlier sexual abuse case.  The Court concluded that the defendant did “not even come close” to meeting his burden to prove that the evidence was unreliable.

Second, the defendant argued that the district court failed to give notice required by Rule 32(h) before imposing an upward departure.  The Court rejected that argument because the district court expressly imposed an upward variance (not a departure), for which no notice is required.  And the reasons for the sentence above the guideline range were based on the 3553(a) factors, not a departure provision in the Guidelines.  It did not matter that those reasons might have also fit under a departure provision.

Third, the Court concluded that the sentence was not substantively unreasonable.  The Court emphasized that the defendant had engaged in repeated acts of sexual abuse of children over two decades, even after he went to prison for it and was released; he blamed the victims rather than showed remorse; and he inflicted substantial and long-lasting harm to the victims.

Deason: Upholding Enticement and Obscene Transfer Convictions

In United States v. Deason, No. 17-12218 (July 17, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the defendant’s convictions for enticement of a minor and attempted transfer of obscene material.

First, the Court upheld the denial of a motion to suppress statements made by the defendant in his home without receiving Miranda warnings.  The Court concluded that the defendant was not “in custody” based on the totality of the circumstances.

Second, the Court found the evidence sufficient to convict on one of the obscene transfer counts.  The Court rejected the defendant’s argument that the government did not put all of the underlying videos as a whole into evidence, and instead admitted only screenshots from each video and had an agent testify about the contents.  The Court concluded that the evidence admitted was sufficient to establish that the material was obscene; the entire videos were not required.

Third, the Court concluded that the defendant invited any error with respect to the sufficiency of the indictment because the government superseded the indictment in response to the defendant’s specificity objection, and the defendant indicated that the problem had been cured.

Finally, the Court rejected three evidentiary claims under plain error.  First, the defendant argued that various rules of evidence were violated when the government admitted screenshots and testimony rather than the videos themselves, but the Court concluded that the defendant could not show than any error affected his substantial rights because, had he objected, the government would have simply admitted the videos.  Second, the Court concluded that, even if the obscene transfer charges were duplicitous for including multiple obscene images/videos in each count, any error did not affect his substantial rights because the jury would have unanimously agreed that at least one image in each count was obscene.  Lastly, the Court concluded that, for the same reason, the defendant could not show any effect on his substantial rights in failing to give an instruction to cure the duplicity problem.  

Gumbs: Upholding Convictions for Forcibly Assault Federal Officers with a Vehicle

In United States v. Gumbs, No. 18-13182 (July 15, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed the defendant’s convictions for using a deadly weapon to forcibly assault a federal officer.

First, the Court found no abuse of discretion in refusing to give the defendant’s proposed jury instructions.  With regard to the term “forcibly,” the court’s instruction tracked the language of the federal assault statute, which had a generally understood meaning using basic grade-school grammar.  With regard to “use of a deadly weapon,” the defendant’s proposed instruction relating to a car as a deadly weapon was substantially covered by the court’s instruction, and the court was not required to separately define the word “use” because it has a common meaning.  With regard to the court’s failure to give an instruction on the lesser included offense of simple assault, the Court concluded that there was no way the jury could have found him guilty of assault without finding him guilty of forcible assault.

Second, the Court found no abuse of discretion in the district court’s response to the jury’s question relating to the use of a car as a deadly weapon.  The court repeated the relevant portion of its earlier instruction, which was a correct statement of the law.

Third, the Court found sufficient evidence to support one of his convictions.  The Court rejected the defendant’s argument that he did not direct force against officers next to his car, because he stepped on the gas pedal as officers were reaching inside the car to arrest him.

Martinez: Upholding Guideline Enhancement for Possessing Gun In Connection With Another Felony

In United States v. Martinez, No. 18-12950 (July 14, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed an enhancement under USSG 2K2.1(b)(6)(B) for unlawfully possessing a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony.

The issue on appeal was whether the enhancement applied where the defendant plans to trade a gun for drugs in the future.  The Court held that it does where the  defendant “knew, intended, or had reason to believe (rather than hoped, wished, or dreamed) the gun was going to be used to buy drugs, and the sale would have (rather than may or might have) happened but for the defendant’s arrest or something else getting in the way.”  Because the district court in this case found that the defendant to trade his gun for a pound of drugs that he planned to sell, and that finding was not clearly erroneous, the Court upheld the enhancement.

Chalker: Upholding Healthcare Fraud Convictions Over Various Challenges

In United States v. Chalker, No. 18-15102 (July 13, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant pharmacist’s healthcare fraud convictions and sentence.

First, the Court found that the evidence was sufficient to support convictions for conspiracy to commit healthcare fraud and substantive healthcare fraud.

Second, the Court found that the indictment tracked the language of the statute and otherwise sufficiently informed the defendant of the charges.

Third, the Court found no error in permitting an FBI forensic accountant to testify as a lay witness because he never gave expert testimony, but rather merely summarized bank/wage records.  The Court also found no error in admitting expert testimony where the government disclosed the substance of the testimony before trial, but swapped out a new expert for the original expert, as there was no showing of prejudice.

Fourth, the Court found no abuse of discretion in denying the defendant’s motion to continue the trial based on defense counsel’s time to prepare and the expert swap.  The Court concluded that there was not enough to show prejudice.

Fifth, the Court found no clear error at sentencing in the loss calculation.  The defendant arguably waived that issue at sentencing.  And, in any event, the trial testimony supported the finding.

Stein: Upholding Restitution Order and Deeming Other Challenges Barred by the Mandate Rule/Law of Case

In United States v. Stein, No. 18-13762 (July 13, 2020) (Marcus, Luck, Ed Carnes), the Court re-affirmed the defendant’s fraud convictions and affirmed an award of restitution.

In a previous appeal, the Eleventh Circuit remanded for the district court consider to reconsider its loss finding with respect to restitution.   The Court held that, on remand, the district court relied on sufficient evidence to establish causation, and the court was permitted to rely on the government’s expert witness.

The Court declined to consider the defendant’s Brady/Giglio challenges to this convictions, or his challenges to the forfeiture order, because those challenges were outside the scope of the limited remand and could have been raised in the initial appeal.  The Court found no exception to either the mandate rule or the law of the case doctrine.  As for the convictions, the Court found that the evidence was neither newly discovered nor material.  As for the forfeiture order, the Court concluded that the defendant was not entitled to raise a new argument just because the judgment was amended for unrelated restitution purposes, and the Supreme Court’s intervening decision in Honeycutt dealt with a distinguishable forfeiture statute.

Ruan: Rejecting Numerous Challenges to Physicians' Convictions for Distributing Opioids

In United States v. Ruan, No. 17-12653 (July 10, 2020) (Coogler (ND Ala.), Wilson, Newsom)), the Court, in a 137-page opinion, affirmed all but one the defendant doctors’ numerous health-care/opioid related convictions.

The Court found sufficient evidence to support convictions for unlawfully prescribing opioids, health care fraud conspiracy, conspiracy to receive kickbacks, mail/fraud wire fraud conspiracy, and RICO conspiracy.  The government’s main expert witness for some of the counts revealed after testifying that he was suffering from early-onset dementia, but the defense could not show plain error because the defense did not ask for that to be disclosed to the jury and the expert was cross examined.  The Court found insufficient evidence for one count of conspiracy to receive kickbacks because the government failed to prove the existence of a “federal health care program” being defrauded.

The Court rejected the defendants’ evidentiary challenges.  The Court found that the admission of information from a state prescription drug database was not hearsay (but rather an opposing party’s statement and business records), and was not testimonial for purposes of the Confrontation Clause.  The Court next found that the exclusion of certain categories of evidence did not violate the defendants’ constitutional right to present a complete defense, despite improper (yet harmless) prosecutorial remarks about one of them.  The Court also found no error in qualifying a government expert and, although the court violated the Confrontation Clause by preventing the defense from eliciting the scope of the expert’s work for the government in the past, that error was harmless.

The Court found no error in refusing to give the defendants’ proposed jury instructions relating to a physician’s conduct under the Controlled Substances Act.  It found that the defendants’ proposed “good-faith” and “drug pusher” instructions were incorrect statements of law.  And it found that the defendants’ proposed negligence-is-not-enough instruction was correct, but its absence did not prevent them from presenting their defense.

As to the defendants’ sentences, the Court first rejected the government’s argument that the purported guideline errors were harmless because, although the court said it would impose the same sentence, it did not sufficiently justify an upward variance from 57-71 months (which would have been the correct range) all the way up to 252 months, and so that sentence would have been substantively unreasonable.  Thus, the Court proceeded to address the guideline issues, but found: no clear error in the drug quantity calculation based on a finding that 10% of the prescriptions were illegal; no clear error in an obstruction enhancement based on false testimony at trial; and, although the court erroneously applied a two-level rather than one-level money laundering conviction enhancement, that error was harmless because it did not affect the guideline range.  As to restitution, the Court found no clear error in awarding a certain percentage of payments that insurers made for the prescriptions.

In re Price: Denying SOS Application Based on Davis and Rehaif

In In re Price, No. 20-12133 (July 7, 2020) (Ed Carnes, Luck, Lagoa), the Court denied a pro se application for leave to file a second or successive 2255 motion based on both Davis and Rehaif.

As for the Davis claim, the applicant challenged his 924(c) convictions predicated on both bank robbery and conspiracy to commit bank robbery.  Although the jury returned a general verdict, and although the Court had not yet determined whether the latter offense remained a “crime of violence” after Davis, it was certain that the jury relied on the former offense, which did remain a “crime of violence” after Davis.  The Court was certain because the district court instructed the jury that it could find him guilty of the 924(c) offense only if it found him guilty of the corresponding bank robbery offense.

As for the Rehaif claim, that decision did not announce a new rule of constitutional law made retroactive by the Supreme Court.  It therefore failed to satisfy the gatekeeping criteria in 2255(h)(2) to file a second or successive 2255 motion.

Harris: Above Guideline Range Sentence in 922(g) Case Was Not Unreasonable

In United States v. Harris, No. 18-15055 (July 1, 2020) (Grant, William Pryor, Jung (MD Fla.), the Court held that the defendant’s sentence above the guideline range was not procedurally or substantively unreasonable.

For the 922(g) offense, the district court accepted the parties’ joint view that the guideline range was 33-41 months, rejecting the probation officer’s view that it was 92-115 months.  However, the court varied upward to 92 months.  On appeal, the Eleventh Circuit held that the district court adequately justified the variance, emphasizing the defendant's criminal history and that the defendant’s firearm possession ultimately led to someone’s death.  The district court also considered the defendant’s salutary post-offense conduct.  No more explanation was required.  The Eleventh Circuit also concluded that the 92-month sentence was not substantively unreasonable because the sentencing court did not abuse its discretion by giving great weight to the seriousness of the offense and criminal history, but less weight to his post-offense conduct.

Cuya: No Right to Discovery Before 2255 Motion is Filed

In Cuya v. United States, No. 18-14380 (July 1, 2020) (Marcus, Wilson, Thapar), the Court affirmed the denial of preliminary discovery motions filed in anticipation of a forthcoming 2255 motion.  Relying on former Fifth Circuit cases, the Court held that the denial of these motions was proper, because a defendant who has not yet filed a 2255 motion is not entitled to discovery.  Only after the 2255 motion is filed may a movant seek discovery based on a showing of good cause.

Clotaire: Upholding Identity Theft Convictions Over Various Evidentiary Challenges, Including Admission of Mug Shot

In United States v. Clotaire, No. 17-15287 (June 30, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s identity theft convictions. 

First, the Court upheld the admissibility of surveillance video images used to identify the defendant.  It found that the still images were self-authenticating business records because there was no dispute that the video was a business record.  The Court rejected the defendant’s argument that he had the right to confront the person who pulled the still images from the video, as the still images were not testimonial statements.  And it also held that business record certifications are not testimonial.

Second, the Court rejected the defendant’s argument that he was denied the ability to present a complete defense.  It found that he was able to sufficiently cross examine government witnesses about its initial identification of someone else in the images.  It also found that two emails were properly excluded as hearsay, and the defense failed to try and use them for impeachment, nor did it subpoena the author of one of the emails.

Third, the government conceded that an officer’s testimony about camera distortion was expert testimony, but the Court found no plain error because the witness had specialized knowledge in that area and connected it to his testimony.  And the government was not required to provide advance notice of expert testimony because the defense never asked for it.

Fourth, the Court rejected the defendant’s argument that there was no proper foundation for a government witness’ identification testimony.  It was irrelevant that the witness met with the prosecutors before testifying.  And the defense had an opportunity to cross examine her about that contact.

Fifth, the Court, after a lengthy discussion of precedent, upheld the admission of the defendant’s mug shot so that the jury could compare it to the surveillance video images.  Despite skepticism about the use of mug shots in criminal trials, the Court found that the mug shot was central to the government’s case, which turned on whether the defendant was the one pictured in the surveillance images.  In addition, the parties stipulated that the mug shot was taken on the date of arrest in the instant offense, removing any inference that it was taken from a prior arrest.  Although the photo may have shown him in prison garb and the height markers, the photo did not show a rogue gallery of criminals, it showed the defendant only from the front (not profile), and it removed other administrative prison markings.  Finally, the debate about its admissibility took place outside the jury’s presence, and the government took steps to mitigate the potential prejudice.

Pon: Any Error in Limiting Defense Sur-Rebuttal Case Was Harmless

In United States v. Pon, No. 17-11455 (Ed Carnes, Martin, Rogers (CA6)), the Court affirmed the ophthalmologist defendant’s Medicare fraud convictions.

First, the Court found no abuse of discretion under Daubert when the district court found that the defense expert’s specific medical treatment theory was unreliable, and it therefore limited the expert to testifying about general concepts relating to eye diseases.  The Court concluded that three of the four Daubert factors weighed against the reliability of the expert’s theory.

Second, the defendant argued that the district court erred by allowing the government to present rebuttal evidence showing that he billed Medicare for providing certain services to one patient, and then limiting the defense’s surrebuttal evidence about that treatment of that patient.  After a lengthy discussion of preservation rules and the importance of harmless error, the Court held that, even if the district court erroneously limited the scope of the defense’s surrebuttal case, and that error violated his Sixth Amendment right to present a complete defense, that error was harmless given the overwhelming evidence of guilt that was unrelated to the error.  In response to the dissent, the Court emphasized that there were numerous Supreme Court and Eleventh Circuit precedents finding harmless error in the face of overwhelming evidence.

Third, as to sentencing, the Court concluded that the district court based its loss amount finding on specific and reliable evidence, including a spreadsheet showing the claims paid and extensive testimony by a special agent about Medicare data.  However, the Court vacated the sentences because the district court imposed concurrent 121-month sentences on all counts, the low end of the guideline range, but the statutory maximum was 120 months.  The Court remanded so that the district court could modify the sentence structure.

Judge Martin concurred in part and dissented in part.  In her view, the limitation of the surrebuttal defense violated the defendant’s right to present a complete defense.  And, in her view, that error was not harmless.  She emphasized that the Court should be cautious about using harmless error, particularly when based on overwhelming evidence.