Cabezas-Montano: Upholding MDLEA Convictions and Sentences Over Numerous Challenges

In United States v. Cabezas-Montano et al., No. 17-14294 (Jan. 30, 2019) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendants' title 46 convictions and sentences in an 80-page opinion.

First, the Court rejected, as foreclosed by precedent, the defendants' argument that the MDLEA was constitutional on various grounds.

Second, the Court concluded that the government met its burden to prove that the vessel was a stateless vessel subject to the jurisdiction of the United States.

Third, applying plain error, the Court rejected the argument that the government purposely delayed presenting the defendants the United States by 7 weeks.  Because this argument was raised for the first time on appeal, there was no evidence to support the assertion that the delay was purposeful or unnecessary.  The Court declined to apply a presume undue delay.  And the Court found that the 48-hour requirement for presentment did not apply in this context.

Fourth, the Court held that binding precedent foreclosed the defendant's argument that the Fifth Amendment prohibited the government from using his post-arrest, pre-Miranda silence as evidence of guilt.

Fifth, the Court found that the evidence was sufficient to support the convictions.

Sixth, the Court found no abuse of discretion in denying a motion for mistrial based on the failure to turn over Brady material because he could not show that the evidence was favorable rather than incriminating.

Seventh, the Court held, in accordance with circuit precedent, that the safety valve did not apply to the MDLEA (before the First Step Act) and that this did not violate equal protection.  The Court again left open whether the safety valve's truthful disclosure requirement violated the right against self-incrimination.

Eighth, the Court upheld the denial of a minor-role reduction to the defendants.  Because they did not identify other participants in the offense, the district court was not required to consider the relative culpability of unknown higher-level co-conspirators who recruited them and organized the offense.

Ninth, the Court found that the district court provided a sufficient explanation of the reasons for its sentence under 3553(c).

Tenth, the Court rejected the defendants' argument that the district court refused to vary downward because they exercised their right to go to trial.

Lastly, the Court found that the defendants' low-end sentences were not substantively unreasonable.

Bane: Affirming Denial of Coram Nobis Challenge to Forfeiture Order Due to Procedural Default

In United States v. Bane, No. 18-10232 (Jan. 24, 2020) (William Pryor, Martin, Sutton (6th)), the Court affirmed the denial of a writ of coram nobis.

After their convictions became final, the defendants petitioned for a writ of coram nobis, challenging their forfeiture judgment in light of the Supreme Court’s ruling in Honeycutt.  Initially, the Court found that the defendants had standing because they were challenging the preliminary (not final) forfeiture order.  As to the merits, the Court assumed, without deciding, that coram nobis could be used to challenge a forfeiture order and that Honeycutt applied retroactively.  The Court affirmed, however, because the defendants procedurally defaulted their claim by not raising it on direct appeal.  The Court found that a Honeycutt error is not jurisdictional because the indictment charged a federal offense; even if the forfeiture allegations were insufficient, that went only to the sentence.   The Court also found that the cause and prejudice exception to procedural default did not apply: they failed to show cause because their claim was not sufficiently novel just because Honeycutt had not yet been decided; and they failed to show prejudice either, as one defendant was responsible for all the proceeds, and the government could have obtained the same property against the other defendant through restitution.

Judge Martin concurred in part and dissented in part, opining that the error was jurisdictional as to one defendant in light of the Supreme Court’s decisions in Welch and Montgomery v. Louisiana.  She reasoned that, as to the one defendant, the forfeiture amount exceeded the statutory limits.

Mancilla-Ibarra: Probable Cause Supported Arrest, and Safety Valve Did Not Apply Based on Failure to Disclose All Truthful Information

In United States v. Mancilla-Ibarra, No. 17-13663 (Jan. 15, 2020) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's drug conviction and sentence.

First, the Court upheld the denial of a suppression motion, finding that probable cause supported the defendant's arrest based on information provided by an informant.  The Court found that, under the totality of the circumstances of that case, the informant's tip was shown to be veritable, reliable, and corroborated.

Second, the Court upheld the refusal to apply a two-level reduction under the safety-valve provision in 2D1.1(b)(17).  At issue was whether the defendant satisfied the fifth criteria for truthfully disclosing all information about the offense.  To show that the defendant failed to do so, the government relied on testimony by an agent with only second-hand information who had no personal knowledge about the defendant's interview.  That equivocal and uncorroborated account was not sufficiently reliable.  However, the defendant bore the burden to prove that he disclosed all truthful information, and the record undermined his assertion that he made only two drug deliveries.

Justos: Naturalization Form Containing Adjudicator's Notes Was Admissible and Did Not Violate Confrontation Clause

In United States v. Santos, No. 18-14529 (Jan. 9, 2020) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendant's convictions for naturalization fraud.

The Court rejected the defendant's argument that it was error for the court to admit a naturalization application form containing written notations made by the interviewing immigration officer who did not testify at trial.  The Court first found that the form was admissible non-hearsay as an adopted admission by an opposing party, because the applicant adopted the form by signing it at the end of the interview.  The Court also found that the form was admissible under the public records exception to hearsay because it was part of the A-file, immigration officers routinely complete the form during non-adversarial interviews with applicants, and the primary purpose of the form is to administrate the naturalization process, not criminal prosecution.  The Court also rejected the defendant's Confrontation Clause challenge because the application form was not testimonial.  It was a public record produced as a matter of administrative routine for the primary purpose of determination eligibility for naturalization, not for the purpose of criminal prosecution.

The Court also found no abuse of discretion by permitting the government to elicit testimony about the inculpatory portion of a post-Miranda statement but prohibiting the defendant from eliciting further testimony about the exculpatory portion.  The rule of completeness did not apply because the exculpatory part of the statement did not explain or clarify the inculpatory part of the statement.

Finally, the Court found that there was sufficient evidence to support his conviction for unlawfully procuring naturalization, finding that his false statements were knowingly made and material to procuring naturalization.   

Brown: Upholding Dismissal of Juror Based on Religious Beliefs

In United States v. Brown, 17-15470 (Jan. 9, 2020) (Rosenbaum, William Pryor, Conway), the Court affirmed the defendant's convictions.

The main issue was whether the district court abused its discretion by dismissing a juror who told other jurors that the Holy Spirit told him that the defendant was not guilty.  In a lengthy opinion, the Court concluded that there was no abuse of discretion because the district court made a finding that the juror meant that the Holy Spirit told him to acquit regardless of the evidence, not that the Holy Spirit would guide him in his review of the evidence.  The Court also rejected the defendant's arguments that the district court lacked a sufficient basis to inquire into the juror's statements, that the court's inquiry violated Rule 606(b), and that the court's dismissal violated the Religious Freedom Restoration Act, the juror's First Amendment rights, and the Sixth Amendment right to a unanimous verdict.

Judge Conway concurred but wrote separately to emphasize that the majority opinion did not mean that a juror could not use religious beliefs to seek guidance when applying the law to the evidence in the case.  Rather, the Court held only that the district court did not abuse its discretion by finding that the juror was not following the court's direction to consider the evidence.

Judge Pryor issued a 60-page dissent, criticizing the majority for mischaracterizing the juror's comments and for making it too easy to disqualify jurors who hold religious beliefs.

Oliver: Georgia's Terrorist Threats Offense Is Not a Violent Felony Under the ACCA

In United States v. Oliver, No. 17-15565 (Jan. 6, 2020) (Wilson, Jill Pryor, Tallman (9th)), the Court held that a Georgia offense for making terroristic threats is not a violent felony under the ACCA's elements clause.

The Court concluded that the Georgia statute was indivisible under Mathis because the statute, state case law, pattern jury instruction, and record of conviction did not make clear whether the alternatives were means or elements.  Therefore, the Court resolved the inquiry in favor of indivisibility.  And the Court concluded that the statute was categorically overbroad because it could be committed by threatening or burning property, which did not have as an element the threatened use of force against a person.

Judge Tallman dissented.  He agreed that threatening to burn a building did not satisfy the elements clause, but he opined that the statute was divisible based on its structure, state court decisions reflecting charging practices, and the indictment in the defendant's case (which was not in the record but was quoted by the government and PSI).  And he opined that threatening to commit a crime of violence with the purpose of terrorizing another, the section under which the defendant was charged, satisfied the elements clause because it necessarily required a threat against a person.

Hill: Exclusionary Rule Inapplicable in Revocation Proceedings

In United States v. Hill, No. 19-10647 (William Pryor, Jill Pryor, Marcus) (per curiam), the Court held--without oral argument--that the exclusionary rule does not apply in supervised release revocation proceedings.

In so holding, the Court joined six other circuits that have reached that conclusion.  The Court relied primarily on a Supreme Court decision declining to extend the exclusionary rule to state parole revocation proceedings.  The defendant failed to present any argument on appeal for why that decision did not apply equally to the supervised release context.