Pendergrass: Affirming Robbery Convictions with Similar Modus Operandi

In United States v. Pendergrass, No. 19-13681 (Mar. 24, 2021) (Rosenbaum, Luck, Anderson), the Court affirmed the defendant's convictions for Hobbs Act robbery and for carrying a firearm in furtherance of those robberies.

This case stems from a string of five robberies, all of which involved certain commonalities: a black-and-silver pistol held by a left-handed man; that same man dressed in a red hooded shirt under a long-sleeved black shirt with a distinctive white pattern on it; a single strap cross-body backpack; a phone number ending in 1011 that pinged off of cell towers that covered the areas of the robberies; bullets recovered from the scenes of the robberies that had cycled through the same firearm.

Prior to trial, defendant moved to suppress evidence from a phone recovered from his car searched for "handguns, long guns, drugs, bullets, blood and/or DNA" in an unrelated incident.  On the phone, officers found pictures and videos incriminating the defendant in the robberies.  The district court granted the motion to suppress the phone and its contents. The district court, however, denied defendant's motion to exclude Google geo-location data showing his whereabouts during the robberies.  The district court also denied defendant's motion to continue the trial on account of his newly appointed attorney, as well as his motion to dismiss a juror for cause because she was a probation officer.

Defendant raised six challenges to his convictions.  First, he argued that he was prejudiced by the district court's denial of his motion to continue trial.  The Court held that the district court did not abuse its discretion in denying defendant a continuance because defendant had two years to prepare for his trial, did not point to any evidence that would have been presented had the continuance been granted, his new counsel was prepared, and the evidence presented at trial was not voluminous or complicated.   

Second, defendant challenged the district court's failure to dismiss for cause the juror who was a probation officer.  The Court held that the district court did not abuse its discretion in declining to dismiss the juror because those who engage in community supervision are not covered by 28 U.S.C. 1863, which provides that members of the fire and police departments are barred from jury service.  The Court's holding was in line with the Tenth Circuit.  

Third, the Court held that any error in admitting the Google geo-location data was harmless beyond a reasonable doubt because the evidence introduced against the defendant was "crushing."  The Court so held without deciding whether the Google geo-location data should have been excluded as fruit of the poisonous tree.  

Fourth, the Court held that evidence sufficiently supported defendant's convictions on all five robberies because, when viewed all together, the evidence established a modus operandi and a pattern.  In so holding, the Court included a chart of the robberies and their shared similarities.  The Court also noted that when modus operandi evidence supports an inference that the same person committed multiple crimes, a jury can consider identity evidence from other robberies.

Fifth, the Court, reviewing challenges to the case agent's testimony for plain error, found no error.     

Sixth, the Court held that even assuming error, cumulative error did not warrant vacatur of the convictions.  Defendant failed to show that his substantial rights were affected by the aggregation of the alleged errors.  

Mayweather: Reversing Convictions for Hobbs Act Extortion and Remanding for New Trial

In United States v. Mayweather, No. 17-13547 (Mar. 17, 2021) (Branch, Tjoflat, Ed Carnes), the Court reversed convictions for Hobbs Act extortion and remanded for a new trial.  

The case stems from a large-scale FBI sting operation in response to concerns that there were Georgia Department of Corrections ("GDC") officers accepting bribes to smuggle contraband into prison.  The FBI arranged for an undercover informant to set up fake drug deals with uniformed corrections officers outside of the prison walls.  The corrections officers were instructed to wear their GDC uniforms as they transported the drugs with the expectation that police officers would not stop or detain them as a professional courtesy.  As a result, the defendants in this case were charged with, among other charges, Hobbs Act extortion.  

Defendants sought to present the jury with an entrapment instruction, which the district court denied.  The defendants also asked that the court provide the jury with the pattern Hobbs Act jury instruction updated post-McDonnell v. United States, 136 S. Ct. 2355 (2016), and to provide the jury with a definition of "official act," which the court also denied.  This appeal followed. 

The Court found that the district court erred on both its failure to give an entrapment jury instruction and to provide the jury with a definition of "official act."  As to the entrapment jury instruction, the Court clarified that to determine whether a defendant has produced enough evidence to merit an entrapment defense and jury instruction, a court need look only at whether there was sufficient evidence produced to raise the issue of government inducement, and not at whether the defendants were actually entrapped, which is a jury question.  With that in mind, the Court found that two of the four defendants had met their burden of production as to inducement, and therefore were entitled to an entrapment defense jury instruction.  The district court's failure to give the instruction resulted in reversible error, not harmless error.  The Court also rejected the government's contention that the defendants, having been recruited by other codefendants rather than a government agent, could at most claim only derivative entrapment, which the Eleventh Circuit does not recognize.    

As to the Hobbs Act extortion instruction, the Court first noted that the government bears the burden of proving that defendants took or agreed to take an "official act" to meet their burden of proving Hobbs Act extortion.  The Court then held that the district court did not abuse its discretion by refusing to give the post-McDonnell pattern jury instruction because that instruction could have been misleading to the jury on the particular facts of this case.

The Court held, however, that the district court was required to define "official act" in the charge it provided the jury because the government's definition of "official act" was too expansive, and therefore made it difficult for ordinary people to understand what conduct is prohibited.  The district court's failure to do so was reversible error because a reasonable likelihood exists that the jury applied the instruction given in an improper manner.   

Granda: Affirming Denial of Davis-based Multiple Predicate § 2255 Motion as Procedurally Defaulted and on the Merits

In Granda v. United States, No. 17-15194 (Mar. 11, 2021) (William Pryor, Jordan, Marcus), the Court affirmed the district court's denial of Granda's second or successive § 2255 motion after United States v. Davis, 139 S. Ct. 2319 (2019), challenging his multiple predicate § 924(o) conviction.    

Granda's case involved a reverse sting operation, wherein Granda was charged with: (1) conspiracy to possess with intent to distribute cocaine; (2) attempting to possess with intent to distribute cocaine; (3) conspiracy to commit Hobbs Act robbery; (4) attempted Hobbs Act robbery; (5) attempted carjacking; (6) conspiracy to use and carry a firearm during and in relation to a crime of violence and drug-trafficking crime; and (7) possession of a firearm in furtherance of a crime of violence or drug trafficking crime.  

The Court affirmed the denial of Granda's § 2255 motion for two reasons: (1) he could not overcome procedural default, and (2) his claim failed on the merits.    

The Court sua sponte addressed its subject matter jurisdiction over Granda's § 2255 motion.  Granda sought and received leave to file a second or successive Johnson challenge--the Supreme Court had not yet decided Davis, so the Court did not (and could not then) certify that Granda's second motion contained the new rule of constitutional law Davis announced.  Nevertheless, the Court found that it did indeed have jurisdiction over Granda's motion because to resolve the Johnson claim the Court did authorize, the Court was obligated to apply the controlling Supreme Court law of Davis.      

First, the Court held that Granda's claim was procedurally defaulted, and that he could not establish cause, actual prejudice, or actual innocence.  As to cause, the Court found that Granda's claim was not sufficiently novel to establish cause.  As for actual prejudice, the Court stressed that actual prejudice means more than just the possibility of prejudice; it requires that the error worked to the movant's actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.  That is, movant had to show a substantial likelihood that the jury relied only on the constitutionally invalid predicate, because reliance on any of the other predicates would have provided a wholly independent, sufficient and legally valid basis to convict.  Here, after reviewing the evidence, the Court found that Granda could not make that showing because of the inextricably intertwined nature of his convictions.  That is, the crimes were so inextricably intertwined that no rational juror could have found that Granda carried a firearm in relation to one predicate but not the others.  Finally, the Court found that Granda could not establish that he was actually innocent.  The Court clarified that actual innocence means factual innocence, not mere legal innocence.  To demonstrate actual innocence of the § 924(o) offense, Granda would have had to show that no reasonable juror would have concluded that he conspired to possess a firearm in furtherance of any of the valid predicate offenses, which the Court held he could not--nor did he attempt to--do.  'The same shortcoming that prevents Granda from showing actual prejudice . . . makes it impossible for Granda to show that his § 924(o) conviction was in fact based on the conspiracy-to-rob predicate."  

Finally, the Court addressed the merits of Granda's claim.  The Court held that the inextricability of the alternative predicate crimes compelled the conclusion that the error Granda complained of--instructing the jury on a constitutionally invalid predicate as one of several potential alternative predicates--was harmless.  The Court clarified that on collateral review, the harmless-error standard mandates that relief is proper only if the court has grave doubt about whether a trial error of federal law has substantial and injurious effect or influence in determining the jury's verdict.  That is, in line with Brecht v. Abrahamson, 507 U.S. 619 (1993), a court may order relief only if the error resulted in actual prejudice.  On the record in Granda's case, the Court did not have "grave doubt" about whether Granda's § 924(o) conviction rested on an invalid ground.  In so holding, the Court declined to adopt Granda's arguments raising Stromberg v. California, 283 U.S. 359 (1931), or the categorical approach.     

Judge Jordan concurred in part and concurred in the judgment.  He noted that because Granda could not prevail on the merits, he would not have addressed the issue of procedural default.      

Rogers: Affirming 360-Month Sentence for Production and Distribution of Child Pornography

In United States v. Rogers, No. 18-13532 (Mar. 9, 2021) (Jordan, Jill Pryor, Branch), the Court affirmed defendant's sentence after he pleaded guilty to two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  

Defendant raised various challenges to his 360-month sentence: (1) the district court improperly attributed a four-level enhancement under U.S.S.G. § 2G2.2(b)(4) for sadism/masochism; (2) application of both U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5 was arbitrary and constituted impermissible double counting; (3) the district court improperly applied a two level enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a computer; (4) the district court erred in excluding certain evidence at his sentencing hearing; and (5) his sentence was substantively unreasonable. 

As to application of the four-level enhancement under § 2G2.2(b)(4), the Court found its application appropriate because the image depicted the defendant's hands around the throat of the minor victim as she lay nude on the bed, appearing as though he was choking her, thereby, at a minimum, depicting violence.  In so finding, the Court construed the words from the guideline--"sadistic," "masochistic," and "depictions of violence"--according to their ordinary and natural meaning. 

The Court next considered whether application of both § 2G2.2(b)(5)--which provides for a five-level guidelines increase if the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor--and § 4B1.5--which provides for a five-level increase where the defendant's instant offense of conviction is a covered sex crime and the defendant engaged in a pattern of activity involving prohibited sexual conduct--was arbitrary and constituted impermissible double counting.  Reviewing for plain error, the Court held that the defendant had failed to establish plain error.  Reviewing the language of the guidelines, the Court found that their plain language established that the Sentencing Commission intended for the enhancements to apply cumulatively.  

As for defendant's challenge to the two-level enhancement under § 2G2.2(b)(6) for the use of a computer for the distribution of child pornography, the Court dismissed it as squarely foreclosed by United States v. Little, 864 F.3d 1283 (11th Cir. 2017).  

Next, the Court addressed the district court's exclusion of evidence at the sentencing hearing regarding two pending state statutory rape cases involving the victim.  The defendant argued that the district court violated his constitutional rights under the confrontation clause, his right to due process, and his right to present a defense when it prevented him from cross-examining the detective about the victim's involvement in two other pending statutory rape cases involving adult men, which he maintains was valuable impeachment and mitigation evidence.  The Court held that the district court's denial of defendant's request did not violate his constitutional rights as the confrontation clause and right to cross-examination do not extend to non-capital sentencing proceedings.  The Court also did not find any abuse of discretion in the district court's decision to disallow the defendant the cross-examination he sought.    

Finally, the Court held that defendant's within-guidelines 360-month sentence was substantively reasonable.  

Knights: Race Not A Factor in Seizure Inquiry

In United States v. Knights, No. 19-10083 (Mar. 10, 2021) (William Pryor, Rosenbaum, K. Michael Moore), the Court granted defendant's motion for panel rehearing, vacated its original opinion (published August 3, 2020), and substituted in its place a new opinion again affirming the district court's denial of defendant's motion to suppress.   

Two officers saw defendant and a friend around 1:00 a.m. in a car that was parked in the front yard of a home in a "high crime" area.  Suspecting that the men might be trying to steal the car, officers parked near the car, approached the car with a flashlight, and knocked on the driver's side window, where defendant was seated.  When the defendant opened the car door, officers smelled marijuana and searched the car, finding ammunition and firearms.  Defendant was charged with being a felon in possession.  

Defendant moved to suppress his admissions and the evidence found during the officers' search, arguing that they were fruits of an illegal seizure that occurred when--without reasonable suspicion--officers parked behind his car, or, at the latest, when they walked up to his car.  The district court found that the officers did not seize the defendant when they parked their patrol car and walked up to him because the encounter was consensual--the defendant was free to walk or drive away.  On appeal, the defendant argued that his perspective as a young black man was relevant to the question of whether a seizure occurred.  In its original opinion, the Court agreed that the age and race of a suspect may be relevant factors, but concluded that they were not decisive in defendant's appeal.  In defendant's petition for rehearing, he argued that the Court erred by not treating his identity as a factor that mattered, and that the correct inquiry was whether a reasonable young black man would have felt free to walk or drive away from the police.

Upon reconsideration, the Court once again concluded that the encounter was consensual, and that a reasonable person would have felt free to leave.  The officers did not activate their patrol-car lights or siren, display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Their use of a flashlight did not communicate a show of authority either.  The Court found persuasive the fact that the defendant's friend did, in fact, ignore the officers and walk away.  In response to defendant's argument that a reasonable person would not have walked away because doing so would have required abandoning his car in a high-crime area, the Court found that two officers were near the car and defendant could have easily returned as soon as they left. 

The Court went on to hold that, unlike age, the race of a suspect is never a factor in the threshold seizure inquiry (though it may be considered when determining the voluntariness of a seizure).  The existence of a seizure is an objective question, so the Court asks whether a reasonable person would have believed he was not free to leave in light of the totality of the circumstances.  The circumstances of the situation are the key to this inquiry.  A suspect's personal characteristics--such as age--are considered only insofar as they have an objectively discernable relationship to a reasonable person's understanding of his freedom of action.  The Court concluded that most personal characteristics, including race, do not lend themselves to objective conclusions.  The Court further noted that even if it were possible to derive uniform attitudes from a characteristic like race, there is no workable method to translate general attitudes towards the police into rigorous analysis of how a reasonable person would understand his freedom of action in a particular situation.  And finally, the Court noted that even if it could devise an objective way to consider race, it could not apply a race-conscious reasonable-person test without running afoul of the Equal Protection Clause.  

Judge Rosenbaum, concurring in the judgment only, wrote separately to "emphasize the perils that ambiguous police interactions can cause and to respectfully suggest that the Supreme Court consider adopting a bright-line rule requiring officers to clearly advise citizens of their right to end a so-called consensual police encounter."   

Goldstein: Affirming Convictions for Conspiracy and Mail, Wire, and Securities Fraud

In United States v. Goldstein, No. 18-13321 (Feb. 26, 2021) (Wilson, Branch, Julie Carnes), the Court  affirmed defendants' convictions and sentences for conspiracy, mail fraud, wire fraud, and securities fraud. 

Defendants' convictions arose from two fraud schemes: (1) a "pump and dump" market-manipulation operation where defendants artificially inflated the price of MCGI stock before selling it off for a profit; (2) a plan to sell shares of a privately-traded company, Find.com, via misleading and fraudulent representations.  The defendants proceeded to trial and were found guilty of two counts of conspiracy, two counts of mail fraud, seven counts of wire fraud, and one count of securities fraud.  Defendants were sentenced to 10 years in prison, and each ordered to pay restitution in the amount of $1.5 million.  The district court also imposed a forfeiture order against each defendant for the total amount of the proceeds: approximately $1.9 million.  The court specified, however, that the government could not recover more than the total of $1.9 million from defendants under the forfeiture order.  

First, defendants jointly challenged the admission of wiretap evidence as violative of the Fourth Amendment.  They argued that the agent's affidavit in support of the wiretap application did not establish probable cause (because any probable cause that had existed was stale) or satisfy the necessity requirement.  The Court disagreed on both fronts, and in any case, found that the good faith exception to the exclusionary rule applied.         

Second, defendants challenged the validity of the wiretap orders issued under Franks v. Delaware, which requires an evidentiary hearing when a defendant makes a substantial preliminary showing that statements or omissions made in an affidavit supporting a wiretap are deliberately false or made with reckless disregard for the truth.  The Court affirmed the district court's denial of  Franks hearing.    

Third, defendants argued that there was a material variance between the indictment's allegations concerning the Find.com scheme and the evidence the government presented at trial to prove the scheme.  The Court held that the defendants had not established a material variance, much less that any deviation between the facts alleged in the indictment and those proved at trial warranted reversal.  The Court noted that a fatal variance exists only where the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts which, although not specifically mentioned in the indictment, are entirely consistent with its allegations.  

Fourth, defendant Bercoon argued that the government engaged in prosecutorial misconduct during its closing argument by suggesting that the jury could infer his intent to commit fraud from the fact that, rather than contacting law enforcement, he had pursued another pump-and-dump scheme with a co-conspirator the day after learning that the FBI was investigating him for market manipulation.  Defendant's argument was subject to plain error review, and failed. 

Fifth, defendant Goldstein challenged the district court's denial of his motion to suppress statements he made to an SEC attorney during a preliminary, informal telephone interview.  He argued that the SEC attorney's promise of confidentiality rendered his statements involuntary.  The Court affirmed the lower court's denial of the motion to suppress because the SEC attorney testified that it was her practice to read the SEC's Privacy Act script at the beginning of every interview, which informs the witness that the SEC routinely shares information obtained from witnesses with other authorities for investigative and enforcement purposes.  

Sixth, defendant Goldstein challenged the district court's denial of his request for an evidentiary hearing to determine whether the SEC's civil investigation and the US Attorney's criminal investigations improperly merged, depriving him of his due process rights.  The Court held that the district court did not abuse its discretion in denying Goldstein's request.   

Seventh, defendants argued that the district court's $1.9 million forfeiture order improperly held them jointly and severally liable, in violation of the Supreme Court's decision in Honeycutt v. United States, 137 S. Ct. 1626, 1632 (2017).  The Court assumed, without deciding, that Honeycutt's reasoning applied to the forfeiture statute at issue here.  The Court further held that any argument that Honeycutt per se prohibits ordering joint and several forfeiture has no basis in the Supreme Court's decision.  Here, the district court did not err because it limited the forfeiture to the total amount of proceeds each defendant personally acquired.  

Finally, defendant Bercoon filed a pro se motion to dismiss his indictment, alleging prosecutorial misconduct based on what he characterized as numerous instances of the FBI agent's offering false testimony before the grand jury.  The Court found no merit in defendant's arguments.