Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, May 04, 2021

Foster: Affirming Denial of Davis-Based, Multiple Predicate § 2255 Motion

In Foster v. United States, No. 19-14771 (May 4, 2021) (Jordan, Marcus, Ginsburg), the Court affirmed the district court's denial of Foster's Davis-based, multiple-predicate § 2255 motion.

This case involves a reverse sting operation wherein Foster was charged with conspiring with others to commit armed robbery of a house he believed held a Colombian cartel's drug stash.  Foster was charged with: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg of cocaine; (3) attempt to possess with intent to distribute at least 5 kg or more of cocaine; (4) conspiracy to use and carry a firearm during and in relation to the crimes alleged in Counts 1, 2, and 3; (5) using and carrying a firearm during and in relation to the crime alleged in Counts 1, 2, and 3; and (6) possessing a firearm as a convicted felon.  At trial, the jury was instructed that it could find Foster guilty of Counts 4 and 5 if it found he carried or possessed a firearm to commit the crimes charged in Count 1 or Counts 2 or 3.  As to Count 5, the court instructed the jury that it had to unanimously agree upon the way in which Foster committed the violation.  No such unanimity instruction was given with respect to Count 4.  The jury returned a general verdict finding Foster guilty on all six counts.  After the Supreme Court's opinion in Davis, Foster was granted leave to file a second or successive § 2255 motion, which the district court denied.         

On appeal, the Court first addressed the government's procedural default argument, raised for the first time on appeal.  The Court found, "[u]nder the peculiar circumstances of this case," that the government waived the affirmative defense of procedural default.  

Moving on to the merits of Foster's claim, the Court held that he could not prevail because the Hobbs Act conspiracy was inextricably intertwined with the conspiracy and attempt to possess with intent to distribute cocaine.  Any inclusion of an invalid predicate offense in the indictment and jury instructions was harmless.  In so holding, the Court heavily relied on its previous opinion in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021).