Perry: Affirming Drug Distribution Convictions and Sentences Based in Large Part Upon DEA Task Officer Expert Testimony

In United States v. Perry, No. 16-11358 (Sept. 29, 2021) (Grant, Marcus, Axon (N.D. Ala.)), the Court affirmed the defendants' convictions and sentences.  

Defendants were indicted on numerous charges related to their involvement in a multi-year, multi-state drug distribution organization--namely, conspiracy to possess with intent to distribute in excess of 5kg of cocaine and in excess of 280g of cocaine base.  They proceeded to trial and were found guilty.  Defendant Perry was sentenced to 240 months in prison while Defendant Ragin was sentenced to 180 months in prison. 

On appeal, Defendant Perry argued that the district court erroneously admitted the testimony of DEA task force officer Lee because Lee was not properly qualified as an expert, and because his opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury.  Lee was qualified as an expert "in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine," and testified extensively as to the meaning of certain words and phrases used in numerous intercepted phone calls that were introduced at trial.  

The Court first found that Lee was properly qualified as an expert in interpreting code words for drugs--he had over 19 years of experience in law enforcement and formed his opinions using reliable methods and based on experience, general knowledge, and familiarity with the intercepted communications and their context.  As to Perry's second objection to Lee's testimony--that it invaded the province of the jury--the Court, reviewing for plain error, found that while portions of Lee's testimony were improper--where he crossed the line from interpreting drug language to opining about plain language, speculating, summarizing the evidence, or telling the jury what inferences to draw from the conversation--Perry failed to establish any plain error that affected his substantial rights.  The Court did note, however, that the trial court and prosecutor "should have taken greater care to cabin the case agent's expert testimony to his areas of expertise and to make clear to the jury in what capacity he was testifying."  But, the Court also cautioned that "it remains the duty of litigators to object contemporaneously when offending testimony is offered so that the trial court will have the opportunity to exercise its critical gatekeeping function when it matters most."    

Defendant Perry next objected to the admission of a recording of a cell phone call, which included out-of-court statements made by third parties who were not called to testify at trial.  The Court found no abuse of discretion in the admission of this call.  

Defendant Perry also objected to 50 additional conversations for the first time on appeal, arguing that it was not necessary for defense counsel to make the same objection over and over again during trial because the trial court had already made its ruling about one of the calls.  The Court disagreed, noting that a defendant is required to raise specific objections to specific questions and specific answers as they were offered.       

Defendant Perry also objected to the government's introduction of Rule 404(b) evidence involving events that fell outside of the charged conspiracy--specifically, the factual basis surrounding Perry's earlier federal conviction for the distribution of crack cocaine.  The district court allowed the evidence, but to limit its prejudicial impact, directed the parties to omit any reference to Perry having been convicted or having entered a guilty plea.  The Court found no error in the admission of this evidence because, by pleading not guilty, Perry made intent a material issue. 

Defendant Ragin argued that the district court should not have considered the drugs and firearms found in his residence when officers arrested him as "relevant conduct" during sentencing because his arrest fell outside the timeline of the conspiracy, and because the details of his arrest were admitted only as 404(b) evidence at trial.  The district court used the drugs and firearms found during Ragin's arrest to calculate his total offense level.  The Court found no error in the district court's consideration of the drugs and firearms found in Ragin's residence because the district court found that the drugs and firearms were part of a single course of conduct and were not an isolated, unrelated event.      

Defendant Ragin also argued that the district court erred by not sua sponte granting him a two-level minor-role reduction.  Reviewing for plain error, the Court found no error because it is insufficient to point to the broader criminal scheme when the district court determines a sentence by zeroing in on a defendant's actual conduct alone.  

Of note, the Court only considered the sentencing issues raised in Ragin's brief, finding his adoption of the arguments raised in his co-defendants' brief to be inadequate--it did not comply with the requirements of 11th Cir. R. 28-1(f).  

Somers: Certifying Questions on Florida's Assault Statutes to the Florida Supreme Court

In Somers v. United States, No. 19-11484 (Sept. 28, 2021) (Jill Pryor, Anderson, and Marcus), the Court granted the petition for rehearing, vacated its previous opinion and judgment, substituted this opinion in its place, and certified to the Florida Supreme Court the following two questions about the nature of Florida's assault statutes:

1. Does the first element of assault as defined in Fla. Stat. § 784.011(1) -- "an intentional, unlawful threat by  word or act to do violence to the person of another" -- require specific intent?

2. If not, what is the mens rea required to prove that element of the statute?

The Court reconsidered its opinion after the Supreme Court's decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In supplemental briefing, movant argued that Borden abrogated Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2021)--wherein the Court held that a Florida conviction for aggravated assault categorically qualified as a violent felony under the ACCA's elements clause--because Florida aggravated assault is not a specific-intent crime.  In response, the government argued that the specific intent to threaten another is an element of Florida aggravated assault.  Because the Florida Supreme Court has not answered the question of whether Florida aggravated assault requires specific intent, or something just like it, and Florida's lower courts are split on the mens rea required by the Florida assault statutes, the Court certified the above questions to Florida's Supreme Court for its consideration.    

Tinker: No Particular Order of Analysis Required for 3582(c)(1)(A) Motions

In United States v. Tinker, No. 20-14474 (Sept. 28, 2021) (Wilson, Newsom, Branch) (per curiam), the Court held that a district court does not procedurally err when it denies a request for compassionate release based on the 18 U.S.C. 3553(a) sentencing factors (or U.S.S.G. 1B1.13's policy statement) without first explicitly determining whether the defendant could present "extraordinary and compelling reasons."  

The Court noted that nothing on the face of 18 U.S.C. 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order.  Therefore, nothing requires a court to first find "extraordinary and compelling reasons" for release before considering the 18 U.S.C. 3553(a) factors or U.S.S.G. 1B1.13's policy statement.  Under 3582(c)(1)(A), the court must find that all necessary conditions are satisfied before it grants a reduction--i.e., support in the 3553(a) factors, extraordinary and compelling reasons, and adherence to 1B1.13's policy statement.  The absence of even one would foreclose a sentence reduction.  Therefore, a district court does not err where, as occurred  in this case, it assumes that "extraordinary and compelling reasons" exist in the 3582(c)(1)(A) context.         

The Court further found no error in the district court's analysis of the 3553(a) factors.  

Watkins: Reversing Order Granting Suppression and Remanding With Instructions

In United States v. Watkins, No. 18-14336 (Sept. 16, 2021) (Luck, Ed Carnes, Marcus), on remand from the en banc Court, the Court reversed and remanded to the district court for further proceedings.  

The Court originally reversed the district court's order granting the defendant's motion to suppress on the government's interlocutory appeal.  Though the government conceded that it violated the Fourth Amendment when GPS tracking devices placed inside an intercepted package re-activated inside the defendant's home, the Court held that 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 case was then reconsidered en banc.  The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of the evidence, not a "reasonable probability."  The en banc Court remanded the case back to the original panel for further proceedings consistent with its holding.  

On remand, the Court, applying the preponderance of the evidence standard--whether the evidence more likely than not would have been discovered--concluded that it would have been.  In so holding, the Court found that the district court clearly erred when it disregarded the magistrate judge's credibility findings without holding a new hearing.  

The Court reversed the district court's order granting suppression and remanded the case to give the district court an opportunity to decide whether to conduct a de novo evidentiary hearing or to accept the fact findings of the magistrate judge.  The Court noted that, if accepted, those finding compel the end finding that it is more likely than not that the challenged evidence ultimately would have been discovered, without the constitutional violation, through lawful means.