Eleventh Circuit Court of Appeals - Published Opinions

Thursday, October 22, 2020

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.