Fey: Affirming Convictions for Drug Distribution and Killing a Witness

In United States v. Fey, No. 22-11373 (Dec. 28, 2023) (William Pryor, Rosenbaum, Abudu), the Court affirmed the defendants’ convictions for distributing meth and for conspiring to and actually killing a cooperating witness by administering a lethal amount of meth and fentanyl.

First, the Court found no reversible Rule 404(b) error. At trial, the government introduced testimony that, years after the murder, one of the defendants solicited someone to murder someone else who witnessed the murder. The Court held that this evidence was extrinsic (not intrinsic) and thus fell under Rule 404(b), as that conversation occurred years after the murder conspiracy was completed. And the Court held that the government failed to provide the requisite notice of this testimony before trial under Rule 404(b). However, the Court determined that this error was harmless because the government’s pretrial brief and jury instructions, filed months in advance of trial, put the defense on notice of this testimony. In addition, the evidence was supported by sufficient evidence and did not violate Rule 403 because, although testimony that Fey sought to have a witness killed was “not flattering,” it was not prejudicial than probative.

Second, the Court did not commit plain error by failing to instruct the jury on spoliation of evidence. The district court declined to instruct the jury that officers negligently allowed the victim’s tissue samples to be destroyed before they could be examined. The Court found it unnecessary to decide whether a spoliation instruction may ever be given in a criminal (as opposed to a civil) case because, even if it could, it was required only where the spoliation was based on bad faith, not mere negligence. And there was no binding precedent on this point, which was required to satisfy plain error.

Finally, at trial the defense objected to an officer’s testimony that another individual died from a drug overdose. The Court held that, even if eliciting that testimony was improper, it was harmless because there was no suggestion that the defendants played a role in the individual’s overdose death.

Hurtado: Affirming MDLEA Convictions Over Jurisdiction, Fourth Amendment, and Delay Challenges

In United States v. Hurtado, No. 21-12702 (Dec. 20, 2023) (Grant, Tjoflat, and Ed Carnes), the Court affirmed the defendants’ MDLEA convictions. Judge Tjoflat wrote the opinion for the Court, with the exception of one point, which the other two panel members rejected in a concurrence.

First, the Court held that there was jurisdiction over the vessel because Cameroon properly consented to U.S. jurisdiction, which was proven conclusively by the certificate of the Secretary of State. In addition, Cameroon subsequently waived jurisdiction after the indictment, which was not too late. And even though Cameroon had deleted the vessel from its registry by the time it consented, that would render the vessel stateless and subject to U.S. jurisdiction anyway.

Second, the Court upheld the denial of a motion to suppress. As an initial matter, there was the question whether the Fourth Amendment applies to a foreign national in international waters. Although the Supreme Court’s decision in Verdugo-Urquidez and the Eleventh Circuit’s decision in Cabezas-Montano held that it did not, Judge Tjoflat interpreted the Eleventh Circuit’s decision in Tinoco to hold that it did, and he believed that holding was binding. Judge Carnes and Grant disagreed with that interpretation of Tinoco. Nonetheless, the panel agreed that there was no Fourth Amendment violation anyway because there was reasonable suspicion to believe that the vessel was engaged in illegal activity. Reasonable suspicion is based on the totality of the circumstances and can exist even if each circumstance is independently innocuous.

Finally, the Court rejected an unnecessary delay argument under due process, as well as Rules 5 and 48. There was no due process violation because the defendant could not show that any delay was a deliberate act by the government to obtain a tactical advantage. And there was no violation of the Rules either because all of the factors but one cut against him, and the delay had nothing to do with extracting a confession. Finally, the Court found no outrageous government conduct. (“Acosta Hurtado has not found Sasquatch, or—more appropriately here—the Kraken.”).

Judge Carnes, joined by Judge Grant, concurred to explain that, contrary to Judge Tjoflat’s opinion, the Eleventh Circuit’s decision in Tinoco had not held that the Fourth Amendment applies to foreign nations outside the U.S., a holding that would be contrary to Supreme Court precedent. At best, it assumed without deciding that the Fourth Amendment applied, and so that assumption was dicta. Judge Carnes catalogued many of the Court’s cases distinguishing between holding and dicta. (“Our circuit law is rock-solid and clear as a mountain stream that the only statements in, or parts of, an opinion that are holdings are those that are necessary to the result of the decision that the opinion accompanies.”)

Sotis: Affirming Convictions and Sentence for Illegal Exporting Scuba Equipment to Libya

In United States v. Sotis, No. 22-10256 (Dec. 20, 2023) (William Pryor, Marcus, Mizelle (M.D. Fla.)), the Court affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

First, the Court held that the evidence was sufficient that he acted willfully and that he acted in conspiracy with another person. The Court also held that, even if the evidence at trial varied from the facts alleged in the indictment about the type of equipment exported, there was no prejudice because he conceded at trial that the equipment required a license to export and no license was obtained.

Second, the Court rejected the argument that an expert witness and a lay witness invaded the province of the jury by opining on the ultimate issue. The expert’s testimony that the equipment required a license did not violate Rule 704(b) because it did not opine on the defendant’s mental statute, and the defendant conceded that point. The lay witness’s testimony that he had never seen a case with this level of willfulness was improper because it went to the defendant’s state of mind, but it did not affect the defendant’s substantial rights given the overwhelming evidence of willfulness.

Finally, the Court affirmed the 57-month sentence. The Court agreed with the defendant that the district incorrectly used U.S.S.G. 2M5.2(a)(1) rather than 2M5.1(a)(1) to calculate the offense level. However, that error was harmless because it resulted in an identical guideline range. And the Court rejected the defendant’s argument that his sentence was substantively unreasonable on the ground that it was disparate from other cases, as the defendants in those cases were not similarly situated (e.g., some pled guilty, received a longer sentence, or were sentenced under an older version of the Guidelines).

McCoy: Affirming Section 404 Denial Based on Pre-Apprendi Drug-Quantity Findings

In United States v. McCoy, No. 21-13838 (Dec. 14, 2023) (Jordan, Newsom, Grimberg (N.D. Ala.)), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

The Court re-affirmed its prior precedent holding that a defendant is bound by pre-Apprendi, judge-made drug-quantity findings for purposes of Section 404. The Court further rejected the defendant’s argument that this precedent violated due process on the theory that, at the time of his sentencing, he had no notice that he needed to object to the drug-quantity finding beyond 50 grams of crack. The Court explained that due process did not require defendants to receive notice about hypothetical, future ameliorative legislation that is then unknown.

Judge Grimberg concurred, sympathizing with the defendant’s due process argument and wondering if defendants must now preserve arguments based on future legislation.

Kincherlow: Affirming Enticement Conviction under 2422(b)

In United States v. Kincherlow, No. 22-11980 (Dec. 13, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed the defendant’s conviction for enticing a minor under 18 U.S.C. 2422(b).

First, the Court held that the evidence was sufficient. The Court rejected the defendant’s argument that he did not persuade, induce, coerce, or entice the minor to engage in prostitution on the theory that she was already engaged in prostitution. And his conduct went beyond merely offering her an opportunity to engage in prostitution because he facilitated and instructed her how to do so.

Second, the Court held that binding precedent foreclosed the argument that the district court erred by instructing the jury that “induce” meant to “cause.”

Finally, the Court held that any variance between the indictment and proof at trial did not affect his substantial rights because the statute and proposed/pattern instructions listed all of the verbs (persuade, induce, entice, coerce) in the disjunctive, affording him sufficient notice of the charges. And, in any event, even where the indictment charges verbs in the conjunctive, the government may still prove one or more of them in the disjunctive where the statute lists them in the disjunctive.

Judge Carnes issued a concurrence adding that, in addition to the statute and jury instructions, circuit precedent put the defendant on notice that he could be convicted by proof of any of the disjunctive means.

Duldulao: Applying Ruan and Vacating 21 U.S.C. § 841 Convictions

In United States v. Duldulao, No. 20-13973 (Nov. 29, 2023) (Jordan, Jill Pryor, Tjoflat), the Court affirmed in part, vacated in part, and remanded in part for a new trial. 

This appeal was on remand from the United States Supreme Court in light of Ruan v. United States, 142 S. Ct. 2370 (2022).   It concerns the criminal convictions of two doctors--Duldulao and Santos--who allegedly participated in a "pill mill"--a pain management clinic that prescribed controlled substances regardless of medical need.  Both doctors served as medical directors of a clinic in Tampa, Florida, and were convicted of conspiracy to distribute and dispense controlled substances not for a legitimate medical purpose and not in the usual course of professional practice, in violation of 21 U.S.C. § 846.  Santos was also convicted of multiple substantive counts of distributing controlled substances not for a legitimate medical purpose and outside the usual course of professional practice, in violation of 21 U.S.C. § 841.     

In Ruan, the Supreme Court held that the scienter provision of 21 U.S.C. § 841(a) (“knowingly or intentionally”) applies to both prongs of the authorization exception--not for a legitimate medical purpose and outside the usual course of professional practice. So, to establish criminal liability under § 841 post-Ruan, it is not enough for the government to prove that a defendant acted outside the usual course of professional practice by violating an objective standard of care.  Instead, the government must now prove that the defendant subjectively knew he was acting outside the usual course of professional practice or intended to.   

On remand from the Supreme Court, both Duldulao and Santos challenged the jury instructions as to both the § 846 and § 841 counts.  As to the § 846 jury instruction challenge, the Court found itself bound by its previous opinion in Ruan when it was remanded by the Supreme Court.  On remand in Ruan, the Court reviewed a district court's § 846 instruction and held that the conspiracy instructions conveyed the adequate mens rea because they already required the jury to find that the defendant acted with subjective knowledge.  The Court found the same to be true of the instructions here, and therefore, affirmed the § 846 convictions.   

As to the § 841 jury instruction, the Court refused the government's invitation to find invited error, and instead found plain error in the instruction because it inadequately conveyed the required mens rea to authorize conviction under § 841(a).  The Court also held that the error affected Santos's substantial rights because the jury could have rested its convictions on an impermissible theory of liability.  Finally, the Court held that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.  As a result, the Court vacated Santos's § 841 convictions and his sentence.     

Duldulao and Santos also challenged the sufficiency of the evidence with regard to the § 846 conviction, which the Court again rejected.  The Court also rejected Santos's challenge to the expert medical testimony presented by the government.     

Steiger: Granting Rehearing En Banc

In United States v. Steiger, No. 22-10742 (Nov. 27, 2023), the Court sua sponte ordered that the appeal be reheard en banc.  

The panel, in vacating Mr. Steiger's sentence, found itself bound by United States v. Parks, 823 F.3d 990 (11th Cir. 2016).  Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider Parks, which requires a per se rule of reversal for  § 3553(c)(2) errors even when a defendant fails to object to the explanation of his sentence before the district court.  In his view,  § 3553(c) challenges should be treated like all other procedural sentencing challenges, which are reviewed for plain error when a defendant fails to object in the district court.  

Perez: While § 3147-enhanced Sentence Can Exceed Statutory Maximum for Underlying Offense, Issue of Whether Felony Offense Committed While on Pretrial Release Must be Submitted to Jury

In United States v. Perez, No. 22-10267 (Nov. 14, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed Mr. Perez's sentence.  

While on bond pending trial, Mr. Perez was convicted of two felonies--violating 18 U.S.C. §§ 922(n) and 922(j).  The government informed him that, pursuant to § 18 U.S.C. § 3147, it was going to seek a ten-year consecutive sentence.  In relevant part, § 3147 provides that, if a person commits a felony offense while on pretrial release, he “shall be sentenced, in addition to the sentence prescribed for the offense, to . . . a term of imprisonment of not more than ten years,” with the additional term to be “consecutive to any other sentence of imprisonment.”  

Here, the § 922(n) conviction carried a statutory maximum sentence of 5 years in prison, while the § 922(j) conviction carried a statutory maximum sentence of 10 years in prison.  Run consecutively, that resulted in a total maximum sentence of 15 years, notwithstanding the consecutive 10 years' tacked on pursuant to § 3147.  Mr. Perez objected to the 10-year consecutive sentence, asserting that there was an Apprendi error because (a) the 10-year sentence exceeded the maximum sentences permitted for his underlying offenses of conviction, and (b) the jury never found beyond a reasonable doubt that he committed a felony offense while on pretrial release (the necessary fact for the § 3147 consecutive sentence).  In his view, § 3147 only allows a court to increase (i.e., enhance) a sentence within the statutory maximum for the underlying offense(s) of conviction.  

The Court held that a sentence imposed pursuant to § 3147 can exceed the maximum term prescribed for the underlying offense(s) of conviction.  But in such a circumstance the issue of whether the person committed a felony offense while on pretrial release must be submitted to a jury and proven beyond a reasonable doubt pursuant to Apprendi and its progeny.  In so holding, the Court joined the Third and Second Circuits.  

The Court, however, affirmed Mr. Perez's sentence, noting that an Apprendi violation does not automatically lead to reversal.  Here, the error was harmless beyond a reasonable doubt because, on numerous occasions throughout the trial and appeal, Mr. Perez did not dispute that he was on pretrial release at the time of the §§ 922(n) and (j) offenses.     

McCall: Officers Relied Upon iCloud Search Warrant in Good Faith

In United States v. McCall, No. 21-13092 (Oct. 27, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the denial of Mr. McCall's motion to suppress.  

The Court considered how the exclusionary rule's good faith exception applies to the search of a cloud storage account.  The warrant in question--for Mr. McCall's iCloud account--permitted a search of almost all of the account's data, with no time limitation.  In affirming the denial of the suppression motion, the Court noted that although Fourth Amendment standards are largely settled, their application to developing areas of technology are not, and law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances.  Here, though the government conceded that the iCloud warrant fell short in certain respects, reasonable officers could have believed it to be valid.  

Of note, with regard to a warrant's particularity, the Court noted that the preferred method of limiting the scope of a search warrant for a cloud account will usually be time-based.  In the Court's view, by narrowing a search to the data created or uploaded during a relevant time connected to the crime being investigated, officers can particularize their searches to avoid general rummaging. As a result, cloud or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim that they are the internet-era version of a general warrant.

Judge Rosenbaum concurred, writing separately to comment on the panel opinion's conclusion that "in the mine run of cases, . . . a time-based limitation will be both practical and protective of privacy interests."  In her view, particularity's guiding principle requires a warrant to be as specific as possible when it comes to identifying things to be searched, and that can't be accomplished "if we artificially determine beforehand that a single criterion--say, the inclusion of a time period in a warrant--means the warrant satisfies the particularity requirement."  That is, including a time period doesn't relieve a warrant from otherwise having to particularly describe the things to be searched and seized to the extent possible.  With regard to electronic data, she believes warrants should also describe the categories or evidence sought--for instance, photographs, communications, and records--and should identify what subject matter those categories of evidence must pertain to.  

Johnson v. Nocco: Whether 4A Precludes LEO From Asking Passenger To Identify Himself

In Johnson v. Nocco, No. 21-10670 (Oct. 2, 2023) (Wilson, Branch, Tjoflat), the Court, in a  § 1983 action, held that the officers involved were entitled to qualified immunity. 

In so holding, the Court addressed whether the Fourth Amendment precluded a law enforcement officer—who had stopped a vehicle for a traffic violation—from asking a passenger in the vehicle to identify himself absent a reasonable suspicion that the passenger has committed, is committing, or is likely to commit a criminal offense.  Relying on officer safety, the Court answered in the negative. 

Judge Branch concurred only in the judgment of the majority, noting that she would have started and stopped at the "clearly established" prong of the qualified-immunity analysis.  She would not have addressed the first prong--whether the official violated a constitutional right--as Judge Tjoflat did in his majority opinion.  

Judge Wilson dissented.  He found it to be clearly established that law enforcement officers cannot require, by threat of arrest, that an individual identify himself absent reasonable suspicion of wrongdoing.  With regard to officer safety, he noted that while traffic stops indeed pose unique risks to police officers, and those risks in turn may justify negligibly burdensome precautions, those precautions may not detour from the officer's mission.  In Judge Wilson's view, although the Supreme Court has identified specific risks inherent in traffic stops and has crafted targeted procedural remedies to address them, it has required more to be shown if officers want to justify anything beyond temporarily controlling the physical movements of passengers.  He concludes by noting that he "would go no further than to hold that in the context of a routine traffic stop, it is clear that general safety concerns do not justify officers requiring the names of passengers who are not suspected of any criminality."  He would "leave for another panel and a different record the question of whether safety concerns at traffic stops can ever reasonably justify such an intrusion."

Pate: En Banc Court Holds Former Civil Servant Not "Officer or Employee of the United States" Within Meaning of 18 U.S.C. §§ 1114 and 1521

In United States v. Pate, No. 20-10545 (Oct. 11, 2023), the en banc Court--in an opinion authored by Judge Newsom--vacated Mr. Pate's § 1521 convictions and remanded for resentencing.  

Mr. Pate filed liens against property owned by a number of people he thought wronged him, including a former Commissioner of the IRS and a former Secretary of the Treasury.  He was then charged with and convicted of violating 18 U.S.C. §  1521, which criminalizes the filing of retaliatory liens against the property of "an individual described in" 18 U.S.C. § 1114, which, in turn, refers to "any officer or employee of the United States."

The en banc Court considered whether a former civil servant counts as an "officer or employee of the United States," and answered in the negative.  Considering the ordinary meaning of the phrase "any officer or employee of the United States," the en banc Court determined that the phrase would not be understood by the average speaker of American English to include former officers or employees of the United States.      

Judge Rosenbaum, joined by Chief Judge William Pryor and Judge Newsom, concurred.  She wrote separately to underscore the problems with the government's argument of appealing to statutory purpose to expand the textually clear scope of criminal liability under §§ 1114 and 1521.  She noted that relying solely on congressional purpose collides with bedrock principles of due process and the separation of powers.  

Judge Brasher concurred in part, noting that the phrase "any officer of employee of the United States" may reasonably be interpreted--in the right context--to include former officers and employees.  

Judge Grant, joined by Judges Branch and Lagoa, dissented.  She wrote separately to emphasize the illogical consequences introduced by the majority's hypertechnical reading, and to put a finer point on why a comparison between this statute and two other provisions of Title 18 should not derail the Court from concluding that the best reading of § 1521 covers acts targeting both current and former federal officials.  

Judge Lagoa dissented, joined by Judges Branch and Grant.  In her view, a natural reading of § 1521, in full and in context, protects both current and former federal officers and employees who are retaliated against "on account of the performance of [their] official duties."  

 

Dunn: Affirming Denial of Motion to Dismiss Indictment

In United States v. Dunn, No. 22-11731 (Oct. 10, 2023) (Jordan, Rosenbaum, Hull), the Court affirmed the denial of Mr. Dunn's motion to dismiss his indictment.

Mr. Dunn was arrested on a criminal complaint at the start of the COVID-19 pandemic--on March 10, 2020--but was not formally indicted until December 1, 2020.  He argued that the district court erred in denying his motion to dismiss his indictment for failure to indict him within 30 days from his arrest--as required by the Speedy Trial Act.

The Court found that the pandemic-related continuances in 2020--that continued grand jury sessions five times in the ends of justice spanning March 26, 2020 to November 16, 2020--were not an abuse of discretion and were within the ends-of-justice exception to the Speedy Trial Act.    

Steiger: Vacating Sentence and Remanding for Resentencing

In United States v. Steiger, No. 22-10742 (Oct. 3, 2023) (William Pryor, Jill Pryor, Coogler (N.D. Ala.)), the Court vacated Mr. Steiger's sentence and remanded for resentencing. 

Mr. Steiger appealed his sentence of 20 years' imprisonment following the revocation of his probation.  The Guidelines recommended a sentence of 12 to 18 months imprisonment. 

The Court vacated and remanded for resentencing because the district court did not give any reason for why it was imposing an above-guideline sentence, as required by § 3553(c)(2) and United States v. Parks, 823 F.3d 990 (11th Cir. 2016).  The Court reiterated that it had adopted a per se rule of reversal for   §3553(c)(2) errors.  Thus, because the district court's statements at sentencing were not sufficiently specific to allow the Court to understand why it imposed an above-guideline sentence, the Court vacated and remanded.  The Court rejected the government's suggestion that it look at the context and record from the entire revocation proceeding to glean the reasoning for the sentence imposed.  

Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider Parks, which requires a per se rule of reversal for  § 3553(c)(2) errors even when a defendant fails to object to the explanation of his sentence before the district court.  In his view,  § 3553(c) challenges should be treated like all other procedural sentencing challenges, which are reviewed for plain error when a defendant fails to object in the district court.  

Robinson: Vacating Contempt Conviction for Violating a Civil Injunction

In United States v. Robinson, No. 22-10949 (Sept. 28, 2023) (Jordan, Rosenbaum, Newsom), the Court vacated the defendant’s contempt conviction for violating a civil injunction against a stun-gun company.

The Court concluded that the evidence was insufficient that the defendant was bound by the injunction under Federal Rule of Civil Procedure 65. Most notably, the Court declined to consider whether the defendant was liable under an aiding and abetting theory because the government failed to pursue that theory in the district court. And, relying on recent Supreme Court decisions in Percoco and Ciminelli, as well as fair-notice principles, the Court concluded that it could not affirm on a ground that the government did not advance in the district court, a rule that applied equally to bench trials as well as jury trials.

Jones: No Jurisdiction to Address Second 2255 Challenging 3559 Residual Clause Based on Johnson/Davis

In Jones v. United States, No. 20-13365 (Sept. 14, 2023) (Wilson, Luck, Lagoa), the Court directed the district court to dismiss a second 2255 motion for lack of jurisdiction.

Jones filed a 2255 motion to vacate his mandatory life sentence under 3559, arguing that its residual clause was unconstitutionally vague in light of the Supreme Court’s decisions in Johnson, Dimaya, and Davis. On appeal, the government agreed that 3559’s residual clause was unconstitutionally vague and that Jones was otherwise entitled to relief. Accordingly, the Eleventh Circuit appointed an amicus to defend the district court’s ruling. Although not even the amicus raised this argument, the Eleventh Circuit sua sponte concluded that the district court lacked jurisdiction because Jones could not satisfy the gatekeeping requirement in 2255(h)(2) for a second 2255 motion. The reason was that, although the Supreme Court had declared numerous other similar residual clauses unconstitutional, there was no Supreme Court decision specifically declaring 3559’s residual clause unconstitutional.

Judge Wilson dissented, arguing that Jones was relying on the same rule of law announced in Johnson, as well as Dimaya and Davis, since that rule was not limited to the specific residual clauses struck down in those cases. He said that the majority’s conclusion was “alarming” because, despite the Supreme Court’s clear guidance, prisoners like Jones serving mandatory life sentences will have no way to vindicate their rights unless the Supreme Court takes up a 3559 case, something that might not arise given the government’s agreement that 3559 is unconstitutional.

Graham: No Prejudice from Grand Jury Meeting in Separate Courthouses During COVID

In United States v. Graham, No. 22-11809 (Grant, Tjoflat, Ed Carnes) (Sept. 8, 2023), the Court affirmed the defendant’s conviction (and granted the government’s motion to publish this previously-unpublished opinion).

The defendant moved to dismiss the indictment because, pursuant to the Southern District of Georgia’s covid protocols in place during the summer of 2020, the grand jury met in three different courthouses and was connected by videoconference. The Eleventh Circuit held that, even if the grand jurors were required to be present in the same room (a question it did not decide), the defendant made no effort to show prejudice, which he was required to do.

The Court also held that the district court did not clearly err in finding that the affidavit in support of a wiretap adequately explained why alternative investigative procedures were insufficient.

Talley: Fugitive Status Does Not Toll Period of Supervised Release

In United States v. Talley, No. 22-13921 (Sept. 7, 2023) (Wilson, Grant, Brasher), the Court vacated the district court’s judgment revoking supervised release.

The defendant committed the supervised release violation after the term of supervision had lapsed but while he was a fugitive from justice. The Court held that the district court erred in tolling the period of supervised release based on his fugitive status for absconding from supervision. The Court reasoned that the fugitive tolling doctrine, which applies in the context of sentences of imprisonment, did not apply in the context of supervised release. And the Court reasoned that the statutory text contemplated only two circumstances where a term of supervision may be tolled, neither of which related to fugitive status. In so holding, the Court joined the First Circuit and parted ways with three other circuits.

Beach: Affirming Conviction for Tampering with a Witness

In United States v. Beach, No. 21-11342 (Aug. 30, 2023) (Luck, Lagoa, Tjoflat), the Court affirmed Mr. Beach's conviction.

Mr. Beach was convicted of tampering with a witness, in violation of 18 U.S.C. § 1512(a)(2)(A).  He appealed his conviction on the ground that the evidence was insufficient to convict him of the offense in 3 respects: (1) the alleged threat of physical force only related to a criminal investigation--a controlled drug purchase--and not an “official proceeding”; (2) the evidence failed to establish that he intended to prevent the witness from testifying in an official proceeding because he did not know about or foresee that there would be a grand jury or court proceeding; and (3) the evidence failed to establish that he was the person who threatened the witness because the government did not authenticate the jail calls or call the witness to testify that he was the person on the phone with her.  

As an initial matter, the Court reviewed Mr. Beach's first two issues for plain error only because they were not specifically raised in the district court.  That is, although Mr. Beach moved for a judgment of acquittal on the government's failure to prove "the essential elements of the charge," this failed to apprise the court of the particular grounds on which he would later seek appellate relief.  

With regard to the second issue, the Court held that § 1512(a)(2)(A) was subject to the same nexus requirement as other provisions of § 1512.  That is, a person can only be convicted if the government can prove a nexus between the accused's actions and the relevant judicial proceedings.  Here, the Court found sufficient evidence of Mr. Beach's intent to influence an official proceeding because his threats had a relationship in time, causation or logic with an upcoming grand jury proceeding and trial.  

With regard to the first and third issues, the Court found the evidence to be more than sufficient.   

Wiley: Affirming Convictions

In United States v. Wiley, No. 22-10179 (Aug. 29, 2023) (Jill Pryor, Grant, Maze (N.D. Ala.)), the Court affirmed Mr. Wiley's convictions.   

Mr. Wiley was charged with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); five counts of aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and five counts of aiding and abetting to use, carry, and brandish a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.  

On appeal, he first argued that the district court abused its discretion by striking a juror for cause because of her religious beliefs.  That juror told the court that she was a a Jehovah’s Witness and would have difficulty judging others because she did not “have a lot of faith in the legal—the justice system.”  The Court found no abuse of discretion because courts may exclude or remove jurors who make clear that they may not sit in judgment of others based on their religious beliefs.       

He next argued that the district court plainly erred by allowing law enforcement officers to give lay opinion testimony identifying Mr. Wiley in the surveillance footage presented at trial when the officers did not become familiar with Mr. Wiley until after his arrest.  The Court noted that even assuming the district court erred by admitting the lay opinion identification testimony, Mr. Wiley had failed to show that his substantial rights were affected because the officers' identification testimony was not the only evidence linking him to the robberies.  

Finally, he argued that his § 924(c) convictions must be vacated because aiding and abetting Hobbs Act robbery is not a categorical crime of violence under § 924(c).  The Court found this argument foreclosed by its binding precedent in In re Colon, which the Court held remained viable and the law of the circuit even post-Taylor.      

Curtin: Affirming Convictions and Sentence

In United States v. Curtin, No. 22-10509 (Aug. 28, 2023) (Wilson, Newsom, Luck), the Court affirmed Mr. Curtin's convictions and 60-month sentence.  

Mr. Curtin was convicted of (1) mailing a threatening communication, in violation of 18 U.S.C. § 876(c), and (2) threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B). 

First, Mr. Curtin challenged the sufficiency of the evidence as to both counts.  With regard to the § 876(c) count--mailing a threatening communication--the Court found sufficient evidence to convict.  In so holding, the Court noted that the Supreme Court's holding in Counterman v. Colorado did not change its calculus because the record evidence sufficiently demonstrated that Mr. Curtin acted with a mens rea of at least knowledge, which surpasses the mens rea of recklessness that the Supreme Court found was required in order to satisfy any First Amendment concerns raised in Counterman.  With regard to the § 115(a)(1)(B) count--threatening a federal judge--the Court similarly found sufficient evidence to convict.  

Second, Mr. Curtin argued that the district court erred when it denied his motion to dismiss the indictment on the ground that it violated 18 U.S.C. § 4241(d), which states that a district court may commit a defendant to the “custody of the Attorney General” to be hospitalized for “treatment in a suitable facility” if the “court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent.”  The statute goes on to say that the defendant’s hospitalization is authorized only for “a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.”  Here, Mr. Curtin was arrested and detained on August 24, 2020, ordered hospitalized on November 24, 2020, and only arrived at the hospital for treatment on March 22, 2021.  On July 22, 2021, he requested a transfer back to the detention facility in Miami and moved to dismiss his indictment on the ground that he had been hospitalized for too long.

On appeal, Mr. Curtin raised three arguments: first, that he was hospitalized beyond the statute's 4-month deadline, and that the only proper remedy is dismissal; second, that the district court miscalculated the length of his hospitalization because it should have been deemed to have begun with the commitment order on November 24, 2020 rather than when he physically arrived at the hospital on March 22, 2021; and third, that the government doctors' reports detailing their competency findings should have been submitted within the 4-month period.  As to the second argument, the Court found Mr. Curtin invited any error because he agreed that the 4-month period began when he arrived at the hospital on March 22, 2021.  As to the third argument, the Court found that § 4241(d)'s text does not require that psychiatric findings be released or received within the 4-month period.  As to the first argument--that Mr. Curtin was hospitalized for longer than the 4 months § 4241(d) permits--though the government conceded error, it argued, and the Court agreed, that the appropriate remedy was not dismissal of the indictment.  The Court held that the appropriate remedy here was what Mr. Curtin received--release from hospitalization.  

Third, Mr. Curtin challenged the failure of the entire bench of the Southern District of Florida to recuse itself sua sponte from his case.  Reviewing this argument for plain error, the Court found none.  

Finally, Mr. Curtin challenged both the procedural and substantive reasonableness of his sentence.  The Court found no error in his sentence.  

Judge Newsom wrote a separate concurrence to "unmask the contradictions" in the Court's procedural-and-substantive-reasonableness precedents and "propose a better way of classifying and adjudicating sentencing-related challenges."  He focused his discussion on whether a judge's consideration of an impermissible factor implicates procedural reasonableness or substantive reasonableness.  In his view, a judge's consideration of an impermissible factor should be viewed as a procedural error.  He urged the en banc court to reconsider its precedents and "restore some order."  

Gladden: Vacating Conviction for Aggravated Identity Theft Post-Dubin, But Affirming All Others

In United States v. Gladden, No. 21-11621 (Aug. 17, 2023) (Wilson, Jill Pryor, Covington (M.D. Fla.)), the Court affirmed as to Ms. Linton, and affirmed in part, vacated in part, and remanded as to Mr. Gladden. 

Ms. Linton and Mr. Gladden were convicted of conspiracy to commit health care fraud and mail fraud, and the substantive offenses of health care fraud, mail fraud, and aggravated identity theft, for their roles in a multi-year scheme to defraud insurance companies.  It was alleged that they and several others at Global Compounding Pharmacy received inflated reimbursement payments by billing for medically unnecessary and fraudulent prescriptions.  

With regard to Ms. Linton, the Court found the evidence to be more than sufficient to support her convictions.  The Court disagreed that the Supreme Court's decision in Dubin required vacatur of her aggravated identity theft convictions.  It found that even under the circumscribed reading of Section 1028A set forth in Dubin, Ms. Linton's conduct fell within the statute's purview.  That is, unlike in Dubin, Ms. Linton did not provide a service to a client while merely misrepresenting how the service was performed to inflate the bill. Rather, Ms. Linton used the means of identification of former patients and prescribing doctors to overbill for certain products. Ms. Linton’s conduct thus falls squarely within the classic variety of identity theft left untouched by Dubin.    

With regard to Mr. Gladden, the Court affirmed his convictions for conspiracy, health care fraud, and mail fraud, but vacated his conviction for aggravated identity theft.  The Court held that Dubin required that it vacate his conviction for aggravated identity theft because Dubin made clear that the jury instruction for aggravated identity theft is erroneous at least in part because one sentence in the jury instruction—“[t]he means of identification at least must facilitate, or have the potential of facilitating, the crime alleged in the indictment”—suggests that mere facilitation of the predicate offense is sufficient to support a conviction.  The Court in Dubin rejected such a broad reading of Section 1028A, making clear that "being at the crux of the criminality requires more than . . . facilitation of the offense."  The Court found that the jury instruction error affected the outcome of the proceedings as to Mr. Gladden, requiring vacatur.  

Mr. Gladden also challenged restitution and forfeiture orders.  The Court affirmed both.  As to forfeiture, the Court clarified that a defendant's salary may be the proper measure of forfeiture where the fraud was pervasive and the company's operations could not have continued at all without the fraud.        

Bird: Affirming Convictions for Structuring

In United States v. Bird, No. 22-10947 (Aug. 17, 2023) (Wilson, Newsom, Lagoa), the Court affirmed Mr. Bird's convictions for structuring.

Mr. Bird was convicted of illegally structuring two separate land-sale contract payments of around $270,000 each.  On appeal, he challenged the sufficiency of the evidence to support his convictions as well as a jury instruction. 

The Court found the evidence more than sufficient to support Mr. Bird's structuring convictions.   He made 22 cash deposits below $10,000 over seven days to satisfy the first payment, and then made 38 cash deposits under $10,000 over the course of seven and a half months to satisfy the second payment.  The Court held that a jury could certainly look at this flurry of deposit activity and reasonably infer that Mr. Bird made these staccato payments for the purpose of evading reporting requirements.   

With regard to the Mr. Bird's challenge to the jury instructions, the Court found that he invited any error.  He proposed the jury instructions jointly with the government, and the court used them.  Thus, even if the instructions were plainly erroneous, the Court declined to review his challenge.  

 

Caldwell: Vacating One Conviction Post-Taylor But Affirming All Others in RICO Conspiracy Case

In Caldwell v. United States, No. 19-15024 (Aug. 16, 2023) (William Pryor, Jill Pryor, Coogler (N.D. Ala.), a consolidated appeal, the Court vacated one of Mr. Caldwell's convictions and his sentence due to an intervening precedent, but otherwise affirmed the convictions and sentences of the other defendants.

Defendants--alleged members of the Gangster Disciples gang--were charged with conspiring to conduct and participate directly and indirectly in the conduct of the Gangster Disciples through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(c).  The defendants were also charged with the enhanced sentencing provision of the Act, for allegedly joining and remaining in the conspiracy, knowing and agreeing that members of the enterprise engaged in acts involving murder, in violation of O.C.G. 16-5-1.  They raised a number of challenges on appeal. 

First, they challenged the district court's denial of their motion to show prospective jurors a video on unconscious bias prepared by the district court for the Western District of Washington as well as proposed voir dire questions regarding the same.  The Court found no abuse of discretion by the district court.   

Second, they challenged the district court's denial of their motion to admit the testimony of a professor of social work as an expert witness on the structure of the Gangster Disciples.  The court denied the motion as untimely and because the explanation of the proffered testimony was inadequate under Fed. R. Crim. P. 16(b)(1)(C).  The court again denied a renewed motion after the prosecution introduced nonexpert testimony about the structure of the Gangster Disciples.  The Court again found no abuse of discretion by the district court.  

Third, the defendants challenged the district court's order that they be secured with ankle restraints throughout the trial.  The Court found no violation of the defendant's rights because the restraints were not visible to the jury and no defendant alleged that he lacked access to counsel.   

Fourth, the defendants challenged the district court's order allowing the prosecution to bring firearms to court as evidence and store them in boxes next to counsel table.  Defendants had requested that the boxes be stored outside the jury's sight in order to maintain their presumption of innocence.  The Court found no abuse of discretion by the district court.   

Fifth, defendants challenged the district court's questioning of a prosecution witness to determine whether DeKalb County was located within the Northern District of Georgia.  Defendants argued that such questioning by the judge deprived them of a fair trial by a neutral arbiter.  The Court disagreed.  

Sixth, the defendants challenged the district court's denial of a motion to suppress the fruits of the extension of the wiretap on one of the Gangster Disciples member's phones.  Defendants argued that the extension was unlawful because the underlying supporting affidavit was incomplete and the application did not provide the court with statutorily mandated information.  More specifically, defendants argued that law enforcement failed to provide the required “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous," because his extension application did not discuss the seven human sources mentioned in the initial application.  The Court affirmed the district court, finding that it properly applied Franks and the good-faith exception to the motion to suppress.       

Seventh, the defendants challenged the verdict form.  The verdict form asked whether each defendant was guilty of “Count One of the indictment charging RICO conspiracy” and whether “the RICO conspiracy involve[d] murder.”  Defendants argued that the verdict form should have specified that “to find the Enhanced sentence for murder,” the jury must find beyond a reasonable doubt that “the Defendants joined and remained in the RICO conspiracy charged in Count One knowing and agreeing that members of the enterprise engaged in acts involving murder.”  The Court reviewed this challenge for plain error because it was not preserved at trial, and found none.  

Eighth, and relatedly, the defendants objected to the recommendation in the PSI that they receive enhanced sentences under RICO, which provides for a maximum sentence of life imprisonment instead of only 20 years if “the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.” The defendants argued that the verdict form question whether “the RICO conspiracy involve[d] murder” asked the jury whether the conspiracy involved either actual murder or inchoate versions of that offense. Because the jury verdict did not distinguish between actual murder, which can support a life sentence under Georgia law, and inchoate forms of murder, which cannot, they argued that their sentences could not exceed 20 years.  They styled their objection as an argument that a sentence based on the finding of actual Georgia-law murder would violate the Sixth Amendment, citing to Apprendi.  

The Court found no violation of Apprendi.  It reasoned that the defendants' argument involved an unpreserved objection to the verdict form and jury instructions masquerading as an Apprendi challenge.  In the Court's view, the defendants' argument that the district court misread the jury verdict and then applied the wrong statutory punishment based on that mistake, did not implicate Apprendi.  The district court correctly concluded that the jury found that the conspiracy involved actual murder, as required for the enhanced sentencing provision.  

Ninth, the individual defendants raised various challenges to their individual sentences and to the sufficiency of the evidence supporting their convictions, which the Court denied.  

Finally, the Court vacated Mr. Caldwell's conviction for using a firearm during and in relation to a crime of violence because it was based upon attempted Hobbs Act robbery.  Applying Taylor, the Court concluded that said conviction must be vacated.  The Court remanded for the district court to resentence Mr. Caldwell for his remaining counts of conviction.    

  

  

Moore: Affirming Felon-in Possession Conviction and Sentence

In United States v. Moore, No. 21-12291 (Aug. 11, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed Mr. Moore's conviction and sentence. 

Mr. Moore was charged with one count of being a felon in possession of a firearm.  He proceeded to trial and asserted a justification defense.  He was found guilty and sentenced to 80 months imprisonment.

Mr. Moore first challenged the district court's denial of his motion for a judgment of acquittal or new trial based on his justification defense. The Court rejected his challenge, and affirmed his conviction.  In so doing, the Court clarified the different standards that apply for granting a judgment of acquittal versus a new trial.  For a Rule 29(a) motion for a judgment for acquittal, the evidence is viewed in the light most favorable to the prosecution and all reasonable inferences and credibility choices are drawn in its favor.  For a Rule 33(a) motion for a new trial, the district court may weigh the evidence and consider the credibility of the witnesses, but reversal of a jury's verdict is reserved for really exceptional cases in which evidence of guilt, although legally sufficient, is thin and marked by uncertainties and discrepancies.  That is, a new trial is justified "if, but only if, the evidence preponderates so heavily against the jury’s verdict that it would be a miscarriage of justice to let the verdict stand." 

The Court next rejected Mr. Moore's challenge to the district court's allowing the government to question him about two prior convictions that were more than 10 years old--one from 2005 and another from 2006.  In analyzing Fed. R. Evid. 609(b)'s ten-year line, the Court joined the Fifth, Seventh, and Eighth Circuits in holding that the ten-year stale-by measurement under the rule begins to run at the witness's release from any physical confinement (and is not delayed by a period of probation, as the district court had erroneously found).  But, any error in the admission of the prior convictions was harmless.  

Third, the Court held that the district court acted within its discretion when it allowed the government to refresh the girlfriend's recollection by showing her, before she was questioned about it, a copy of her written statement to the police.  

Fourth, the Court held that the district court acted within its discretion when it admitted evidence of Mr. Moore's domestic abuse of his girlfriend.  The Court rejected Mr. Moore's arguments that the domestic incidents were too remote in time and too unrelated to the later altercations to be relevant to his justification defense.  

Fifth, the Court held that the district court acted within its discretion when it refused to allow defense counsel to ask the girlfriend if she had told Mr. Moore that one of the individuals he believed was breaking into the home had a juvenile conviction in Texas for murder. Mr. Moore argued that his knowledge of the prior violent act was important to his justification defense, but the Court disagreed.  

Sixth, the Court held that the district court acted within its discretion when it answered a question from the jury.

Finally, the Court affirmed Mr. Moore's sentence.  It found no clear error in the district court's denial of a two-point reduction for acceptance of responsibility, and no clear error in the district court's application of an enhancement to Mr. Moore's base offense level on the ground that his possession of the firearm was in connection with another felony offense.   

Lopez: Finding §§ 1956(a)(1)(B)(i) and (ii) are Different Means of Committing the Same Offense, Not Separate Offenses

In United States v. Lopez, No. 21-12709 (Aug. 7, 2023) (William Pryor, Jill Pryor, Grant), the Court, in the immigration context, held that a violation of 18 U.S.C. § 1956(a)(1)(B) is not categorically a crime of moral turpitude. 

In so holding, the Court applied the categorical approach.  It noted that when an individual has been convicted of a conspiracy crime--like Ms. Lopez, who was convicted of conspiracy to launder money under 18 U.S.C. § 1956(h)--the categorical approach demands that courts determine whether the underlying substantive offense is divisible if it would otherwise be overbroad.  Here, the Court found § 1956(h) to be divisible by the underlying crimes a defendant could be convicted of conspiring to commit because it prohibits "conspir[ing] to commit any offense defined in [section 1956] or section 1957" of Title 18.

Here, Shepard documents clarified that Ms. Lopez was charged under § 1956(h) with conspiring to launder money in violation of sections 1956(a)(1)(B)(i) and 1957.  The Court found § 1957 to be indivisible.  As to § 1956(a)(1)(B), the Court cited to the Second Circuit in holding that §§ 1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii) outline two means of committing the same knowing-concealment crime.  That is, they are different means of committing the same offense, not two separate offenses.  In so reasoning, the Court noted that it was "express[ing] no opinion as to whether section 1956(a)(1)(A) and section 1956(a)(1)(B) outline separate offenses."     

The Court then noted that the least culpable conduct prohibited by § 1956(a)(1)(B) is structuring a transaction that involves proceeds of unlawful activity to avoid a reporting requirement.  With that in mind, it held that neither § 1957 nor the least culpable conduct proscribed by § 1956(a)(1)(B) were crimes categorically involving moral turpitude.

Judge Grant "respectfully, if reluctantly" concurred, expressing frustration with the categorical approach.  In her view, it "flouts the intent of Congress, requires an inordinate amount of judicial energy, and defies common sense."        

Rodriguez: Vacating Conditions of Supervised Release and Remanding for Resentencing

In United States v. Rodriguez, No. 20-13534 (Aug. 1, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed in part and vacated in part Mr. Rodriguez's sentence, and remanded for a limited resentencing.

Mr. Rodriguez appealed his sentence for possession with intent to distribute 100 grams or more of heroin and 50 grams or more of methamphetamine.

The Court agreed that Mr. Rodriguez was entitled to a limited resentencing because the district court erred by imposing conditions of supervised release in the written judgment that were not orally pronounced at the sentencing hearing.  The Court held that a district court must pronounce at the defendant’s sentencing hearing any discretionary conditions of supervised release—that is, any condition of supervised release other than those mandatory conditions set forth in 18 U.S.C. § 3583(d).  The Court noted that a district court may do so by expressly incorporating a written list detailing the conditions, and does not need to individually pronounce each discretionary condition at sentencing.    

The Court rejected Mr. Rodriguez's other challenges to his sentence, finding no clear error in the district court's imposition of a two-level enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance, under U.S.S.G. § 2D1.1(b)(12); finding the sentence to be procedurally and substantively reasonable; and finding that his 6th Amendment right to counsel during a critical stage was not violated when his attorney experienced technical difficulties during his Zoom sentencing hearing.  

   

Miles: Florida Conviction for Unlawful Possession of a List Chemical Not an ACCA "Serious Drug Offense"

In United States v. Miles, No. 21-12609 (Lagoa, Brasher, Boulee), the Court vacated the defendant’s ACCA sentence.

The Court held that a prior Florida conviction for unlawful possession of a listed chemical under Fla. Stat. 893.149 is not a “serious drug offense” under ACCA. The elements of that offense requires one to possess the chemical with reasonable cause to believe that some person will use it to manufacture a controlled substance. However, that conduct does not itself involve (i.e., necessarily entail) “manufacturing” or “possessing with intent to manufacture” a controlled substance, as required by ACCA’s “serious drug offense” definition.

Gary: Florida Aggravated Assault is a "Violent Felony" under ACCA

In United States v. Gary, No. 21-13249 (July 21, 2023) (Wilson, Luck, Hull) (per curiam), the Court held upheld the defendant’s ACCA sentence.

The Court held that Florida aggravated assault qualified as a “violent felony” under the ACCA’s elements clause. The Court relied on its decision in Somers, which reached that same conclusion after the Florida Supreme Court held that simple assault could not be committed recklessly. Therefore, the offense remained a qualifying predicate notwithstanding the Supreme Court’s decision in Borden.

Ahmed: Affirming Convictions Over Numerous Challenges, Including Those Related to the Pandemic

In United States v. Ahmed, No. 20-14264 (July 13, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the defendant’s convictions for healthcare fraud, wire fraud, and money laundering.

First, the Court found no Sixth Amendment violation due to counsel’s failure to visit the defendant during an overnight recess out of concerns about the pandemic. Any lack of communication was not due to the government or the court but rather the lawyer’s concern for his own health. There is no indication he would have otherwise visited the client during that recess. And the district court otherwise went to great lengths to facilitate communication. The Court also declined to address an ineffective assistance of counsel claim on direct appeal because the record was not sufficiently developed. Finally, the Court rejected a series of pandemic-related complaints—i.e., that the defendant was not provided Adderall during trial, he sustained a slip and fall injury in jail, the jail confiscated his legal materials, he was shackled during trial, and the jury was unengaged—because the district court remedied these issues, the jury did not see him shackled, and there was no indication that the jury was unengaged.

Second, the Court rejected a claim of prosecutorial misconduct arising from the government’s insinuation during cross examination that a defense witness illegally prescribed medication under Florida law. The Court held that, even if that was correct, the defense did not hinge on that issue and there was no prejudice.

Third, the Court rejected three evidentiary claims. First, the district court excluded the defendant’s expert after she invoked her Fifth Amendment privilege. The Court upheld that exclusion because the district court conducted a particularized inquiry, the witness had a basis for invoking the privilege, and the expert’s unwillingness to answer certain questions prevented the district court and the government from challenging her qualifications and probing her credibility. Second, the Court upheld the exclusion of certain documentary evidence because they were hearsay and, although a close question, there was no abuse of discretion in finding that they were not business records. Finally,  the Court upheld the exclusion of testimony by the defendant’s former attorney about the defendant’s conduct because such character evidence was barred by Rule 404(a).

Garrison: Affirming Denial of 2255 Motion Challenging 924(c) Conviction Based on Davis

In Garrison v. United States, No. 20-13260 (July 13, 2023) (Branch, Luck, Antoon), the Court affirmed the denial of a 2255 motion challenging a 924(c) conviction based on Davis.

The 924(c) conviction in this stash house robbery case was based on two drug trafficking offenses and Hobbs Act conspiracy, the latter of which is no longer a predicate “crime of violence” post-Davis. At trial, the court instructed the jury that it could rely on any of the three predicates (including the now-invalid Hobbs Act conspiracy) to convict for the 924(c) count, and the jury returned a general verdict. While the Eleventh Circuit held that this scenario violated the Supreme Court’s decision in Stromberg, it concluded that the error was harmless because the predicate offenses were inextricably intertwined.  Thus, there was no possibility that the jury relied on the now-invalid Hobbs Act conspiracy predicate. The Court rejected the movant’s argument that it was precluded from looking beyond the jury instructions and the verdict to determine whether the 924(c) conviction rested on the invalid predicate.

Walker: Affirming Sex Trafficking by Coercion Convictions

In United States v. Walker, No. 22-10164 (July 13, 2023) (William Pryor, Luck, Hull), the Court affirmed the defendant’s sex trafficking convictions.

First, the evidence was sufficient to support a conviction of sex trafficking by coercion because a reasonable jury could have found that the defendant had a scheme, plan, or pattern intended to cause the woman to believe that failure to engage in prostitution would resulted in serious harm—namely, not having a place to stay and going hungry in a city hundreds of miles away from her home and family.

Second, and applying plain error, the government’s alleged failure to disclose its expert testimony before trial did not affect the defendant’s substantial rights because defense counsel anticipated the testimony and there was ample additional evidence of guilt apart from the expert’s testimony.

Perkins: Affirming 2255 Based on Claims of Alleged Incompetency at Sentencing

In Perkins v. United States, No. 20-14781 (July 10, 2023) (Branch, Grant, Schlesinger), the Court affirmed the denial of a 2255 motion.

First, the Court affirmed the denial of a substantive competency/due process claim. The district court did not clearly err in finding that the movant was competent at the time of sentencing and in rejecting the contrary determination by the movant’s expert.  The district court properly relied on jailhouse calls showing his knowledge of the proceedings. And the movant’s expert evaluated him six years after sentencing, and her testimony conflicted with other expert testimony.

Second, the Court affirmed the denial of an ineffective assistance of counsel claim based on counsel’s failure to investigate his mental health. The Court determined that counsel’s performance was not deficient because he took action after first learning about the movant’s mental health issues. In any event, any deficient performance was not prejudicial because there was no evidence that he would have been deemed incompetent at the time of sentencing had he been evaluated around that time.

Jews: Alabama Youthful Offender Conviction was not an Adult Conviction Under the Guidelines

In United States v. Jews, No. 22-10502 (July 6, 2023) (Wilson, Newsom, Lagoa), the Court vacated the defendant’s sentence.

The Court held that the defendant’s Alabama youthful-offender adjudication was not an “adult” conviction under U.S.S.G. 2K2.1 or 4A1.2. The Court reached that conclusion after applying four factors from circuit precedent. First, state law did not deem the prior to be a conviction at all, let alone an adult conviction. Second, the nature of the proceedings was, under state law, different in various substantive and procedural ways than an adult criminal proceeding. Third, he received a three-year sentence, a factor that cut in favor of an “adult” conviction but was not decisive. Fourth, and finally, the record did not reveal the amount of time he actually served. On balance, then, the Court concluded that the first two factors meant that the conviction was not “adult” under the Guidelines.

Gonzalez: Reaffirming That SR Sentences May Be Reduced Under Section 404 of the First Step Act, But Again Affirming the District Court's Denial of Relief Post-Concepcion

In United States v. Gonzalez, No. 19-14381 (June 21, 2023) (Jordan, Newsom, Tjoflat), the Court revised its earlier panel opinion from August 2021 in light of the Supreme Court's decision in Concepcion.  It again affirmed the denial of Mr. Gonzalez's motion under § 404(b) of the First Step Act.   

The Court reaffirmed its conclusion that Mr. Gonzalez's revocation of supervised release sentence was eligible for a reduction under the First Step Act because the underlying offense was a covered offense under § 404(b).  

The Court noted, however, that eligibility "is not the end of the matter," because though § 404(b) authorizes district courts to reduce sentences of defendants with covered offenses, it does not require them to do so.  In his post-Concepcion briefing, Mr. Gonzalez urged the Court to hold that district courts must always calculate and consider a defendant's new range under the Sentencing Guidelines before exercising its discretion under § 404(b), as the Seventh Circuit held in United States v. Corner, 967 F.3d 662, 666 (7th Cir. 2020), but the Court declined.  The Court disagreed with Mr. Gonzalez's argument that because the district court never made any determination as to his applicable penalty, it failed to demonstrate that it "reasoned through [his] arguments," as required by Concepcion.  That is, here, the district court did not abuse its discretion in denying Mr. Gonzalez's motion because it provided a brief statement of reasons that was clear and supported by the record.  As a result, the district court's explanation of its refusal to reduce Mr. Gonzalez's sentence did not violate Concepcion.     

Laines: Affirming Convictions and ACCA-Enhanced Sentence

In United States v. Laines, No. 21-11535 (June 6, 2023) (Bill Pryor, Rosenbaum, Marcus), the Court affirmed Mr. Laines's drug- and firearm-related convictions as well as his ACCA sentence, which was based upon a prior Florida cocaine conviction.  

Mr. Laines first argued that the evidence was insufficient to support two of his convictions--possession with intent to distribute and a related firearms offense--because there was no evidence that he had the intention to distribute the drugs he possessed.  The Court disagreed, finding that his intent to distribute had been proven circumstantially.  

He next argued that he was entitled to a new trial based on Brady and Giglio.  More specifically, he argued he was entitled to a new trial both because the police had unconstitutionally searched his phone upon his arrest and failed to disclose said search to the defense, and because the government failed to disclose prior to trial that one of its witnesses--one of the arresting officers in the case--had committed misconduct and was the subject of multiple internal investigations.  The Court disagreed, finding no reasonable probability of a different trial outcome.  

Finally, Mr. Laines argued that he was not ACCA because his prior Florida cocaine conviction was not a "serious drug offense" because its definition of cocaine is more expansive than the federal definition.  The Court, reviewing for plain error, found none, relying on its prior panel precedents in Travis Smith and Xavier Smith.  The Court expressly refused to find that its opinion in Chamu had abrogated its precedents about a prior conviction under Fla. Stat. § 893.13(1) qualifying as a "serious drug offense" under the ACCA.  The Court also clarified that Mr. Laines, as the appellant, bore the burden of establishing that the district court had plainly erred.  

Judge Rosenbaum dissented in part.  She believed that the sentence should be vacated and the case remanded for the government to establish that Mr. Laines was in fact ACCA.  That is, in light of Chamu, the government bore the burden of demonstrating that Mr. Laines's prior Florida cocaine conviction still qualified as a "serious drug offense."  More specifically, she noted that unlike in Chamu--which was an immigration case--here, in the criminal-sentencing environment, the government bears the burden of proving any sentencing enhancement--including an ACCA enhancement--applies.  

She also clarified that Mr. Laines's argument regarding the overbreadth of his Florida cocaine conviction was not precluded by prior panel precedent.  In her view, Chamu expressly explained that there are three categories of stereoisomers: optical isomers, geometric isomers, and nongeometric diastereomers.  So if nongeometric diastereomers of cocaine exist, then Florida’s definition of the substance is categorically overbroad in comparison to the federal definition.  She would have remanded for the government to show that there are no nongeometric diastereomers of cocaine.  

Finally, she also noted that a defendant's failure to object to the ACCA classification cannot relieve the government of its burden to establish the enhancement, nor can the defendant's failure to object to allegations of fact in the PSI.  This is so because, whether a cocaine-related conviction under section 893.13(a)(1) qualifies as a “serious drug offense” is a legal question, the answer to which is the same in every case for every defendant with such a conviction.  In her view, it would be "quite a stretch to characterize it as the type of 'allegation[] of fact' that we deem admitted in a PSI if a defendant fails to object."                  

Ware: Affirming Convictions and Sentence

In United States v. Ware, No. 21-10539 (June 1, 2023) (Newsom, Luck, Tjoflat), the Court affirmed Mr. Ware's convictions and sentence.

Mr. Ware was convicted of thirteen counts of Hobbs Act robbery and associated firearm offenses, and sentenced to life in prison.  On appeal, he raised three challenges to his convictions and one challenge to his sentence.   

Mr. Ware first contended the district court erred by not holding a formal Daubert hearing before admitting expert fingerprint evidence.  Mr. Ware relied on a 2009 United States National Resource Counsel ("NRC") report and subsequent 2016 President's Counsel of Advisors on Science and Technology ("PCAST") to argue that because fingerprint analysis involves individual human judgement, the resulting fingerprint comparison conclusion can be influenced by cognitive bias, rendering it unreliable.  The Court noted that a Daubert hearing is not always required and found that the district court had not abused its discretion in not holding a hearing.  The district court considered the reports and arguments presented and found that fingerprint evidence was reliable enough as a general matter to be presented to the jury.  Many of the critiques of fingerprint evidence found in the PCAST report go to the weight that ought to be given fingerprint analysis, not to the legitimacy of the practice as a whole.  Therefore, it was properly admitted and properly subject to cross-examination.      

He next contended that the district court erred by admitting lay identification testimony by two FBI case agents who met with Mr. Ware upon his arrest.  The court allowed the agents to identify Mr. Ware as one of the perpetrators of the robberies after viewing cellphone photos and surveillance footage and confirming his identification based upon their interactions with him after his arrest.  The Court found no abuse of discretion because the agents had first-hand knowledge of Mr. Ware's appearance outside the courtroom setting, and had contact with him for a combined 5 hours.  They also familiarized themselves with him less than two weeks after the last robbery, whereas the jury--though also capable of comparing Mr. Ware in the courtroom with the surveillance footage and photos found in a cellphone--would have been doing so by looking at Mr. Ware almost two years later.    

Finally, Mr. Ware contended the district court erred by instructing the jury on flight and concealment.  The Court found that the district court did not abuse its discretion in giving the instruction because the government presented evidence of concealment--Mr. Ware was hiding under a bed when law enforcement arrived to arrest him.      

Mr. Ware also challenged his sentence--more specifically, the application of the bodily restraint sentencing enhancement to three of the nine robberies.  Section 2B3.1(b)(4)(B) provides an enhancement for robberies where a victim was physically restrained by being tied, bound, or locked up.  But the enhancement also applies where the defendant's conduct ensured the victims’ compliance and effectively prevented them from leaving a location.  Here, the Court found the enhancement properly applied.  

Verdeza: Upholding Healthcare Fraud Convictions/Sentence Over Numerous Challenges

In United States v. Verdeza, No. 21-10461 (May 31, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s healthcare fraud convictions and sentence.

First, the Court held that the evidence was sufficient to support the convictions under an aiding and abetting theory.

Second, the district court did not commit plain error by allowing an FBI agent to give “summary” testimony because there was no precedent holding that such testimony is, in itself, is improper. The district court did not abuse its discretion by admitting evidence under Rule 404(b) because no notice was required under the pre-2020 version of the Rule and the evidence was not impermissible propensity evidence. And any error by allowing the government to ask two leading questions was harmless given the overwhelming evidence of guilt.

Third, evidence at trial supported the district court’s decision to give a deliberate ignorance instruction, and any error was harmless given the evidence of the defendant’s actual knowledge.

Fourth, as to sentencing, there was no precedent supporting the defendant’s argument that the definition of “loss” in the commentary was ambiguous post-Dupree, and so there was no plain error in calculating the amount based on the defendant’s intended loss. There was no clear error in declining to apply the minor-role reduction. There was no error in the restitution award because the statute permits courts to order members of a fraud to jointly repay the victims. And the 48 month sentence, which fell below the guideline range, was not substantively unreasonable.

Gruezo: Upholding MDLEA Conviction Over Various Statutory and Constitutional Challenges

In United States v. Gruezo, No. 22-11342 (May 5, 2023) (Newsom, Grant, Hull) (per curiam), the Court affirmed the defendant’s MDLEA convictions. After previously issuing this unpublished opinion without oral argument, the Court granted the government’s motion to publish the opinion.

First, the Court held that there was jurisdiction under the MDLEA. The defendant stipulated that the vessel had no indicia of nationality visible, and that the master had no claim of nationality when asked. That was enough, the Court held, to support jurisdiction. The Court went to explain that the statute did not require the Coast Guard to ask the master to make a claim of both nationality and registry because the statute is written in the disjunctive.

Second, the Court upheld the constitutionality of the MDLEA. The statute was not vague because it gave notice that, without a claim or nationality or registry, the vessel will be considered stateless.  The statute did not violate Miranda by failing to inform the master of the consequences for failing to make such a claim; an as-applied challenge was waived by the guilty plea, and a facial challenge was foreclosed by precedent. Finally, the statute did not violent due process for failing to require a minimum nexus to the United States, as that argument was foreclosed by precedent.

Third, the Court upheld the denial of a minor-role reduction. The defendant, a crewman for a short period of time, could not prevail by pointing to a broader criminal scheme, and his involvement was still serious and important because he knowingly participated in transporting a large quantity of cocaine, and he played an important role.

Hamilton: 3553(c)(1)'s Statement of Reasons Requirement Applies to Supervised Release

In United States v. Hamilton, No. 21-14266 (May 2, 2023) (Rosenbaum, Jill Pryor, Tjoflat), the Court—without oral argument—affirmed the defendant’s 40-year sentence and lifetime term of supervised release after pleading guilty to enticing a minor, sending interstate extortionist threats, and producing child pornography.

As to the term of imprisonment, the defendant argued that the district court erred by applying a four-level enhancement under U.S.S.G. 2G2.1(b)(4). However, the Court found it unnecessary to address that argument because his total offense level would have remained unchanged under the grouping rules in 3D1.4. Thus, any error was harmless.

As to supervised release, the defendant argued that the district court failed to state its reasons. The Court clarified that the requirement in 18 U.S.C. 3553(c)(1)—that the court state the reasons for a guideline-range sentence—applied to supervised release. And it re-affirmed that it reviews that issue de novo, even where a defendant does not object. However, the district court need not make two separate explanations—one for imprisonment and one for supervised release--because most of the 3553(a) factors are the same. In this case, the district court did not separately address the 3553(a) factors in connection with supervised release, but it did address several of those factors in connection with the term of imprisonment, and that explanation applied equally. And the defendant could always seek to modify his term of supervision in the future.

Somers: FL Agg Assault a "violent felony" under ACCA

In Somers v. United States, No. 19-11484 (Apr. 25, 2023) (Jill Pryor, Anderson, Marcus), the Court affirmed Mr. Somers's ACCA-enhanced sentence. 

Mr. Somers argued that his prior conviction for Florida aggravated assault with a deadly weapon could not serve as an ACCA predicate because it can be committed with a mens rea of recklessness.  

The Court disagreed, and held that, because aggravated assault under Florida law requires a mens rea of at least knowing conduct, it qualifies as an ACCA predicate offense under Borden.

In so holding, the Court relied on guidance from the Florida Supreme Court, which held that the first element of the assault statute, section 784.011(1), requires not just the general intent to volitionally take the action of threatening to do violence, but also that the actor directs the threat at a target, namely another person.  That is, the Florida Supreme Court held that the Florida assault statute demands the specific intent to direct a threat at another person and therefore cannot be violated by a reckless act.   

Rolle: Holding § 1324(a) Has Extraterritorial Reach

In United States v. Rolle, No. 19-11354 (Apr. 14, 2023) (Wilson, Jordan, Brasher), the Court affirmed the district court's denial of Mr. Rolle's motion to dismiss the indictment. 

Mr. Rolle was charged with one count of conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); 16 counts of encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); and one count of conspiracy to allow, procure, and permit aliens to enter the United States, in violation of 8 U.S.C. § 1327.  

Mr. Rolle moved to dismiss the indictment, arguing that it failed to state a crime because his conduct occurred outside the United States.  The Court disagreed, and, as a matter of first impression, held that §§ 1324(a)(1)(A)(iv), (1)(A)(v)(I), and 2(B)(ii), apply extraterritorially.  Its holding is in line with the holdings of the  1st, 5th, 9th, and D.C. Circuits.   

In so holding, the Court affirmed the continued vitality of United States v. Bowman, 260 U.S. 94 (1922), which held the presumption against extraterritoriality does not apply “to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated . . . .”  The Court reasoned that § 1324(a)'s scope  and usefulness would be greatly limited if the statute were restricted to the territorial United States.  That is, given the nature of illegal immigration, much of the conduct under the statute is likely to occur beyond, at, or near our borders, and as a result, strongly suggests that Congress intended the statute to apply to extraterritorial conduct.

The Court also noted that its holding comported with international law because the protective principle supported the United States' exercise of jurisdiction.  

    

Burnette: Affirming Bribery-Based Convictions

In United States v. Burnette, No. 21-13990 (Apr. 11, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed Mr. Burnette's bribery-based convictions. 

Mr. Burnette, a real estate developer in Tallahassee, was accused of soliciting bribes from two undercover agents posing as property developers in order to sway a Tallahassee city commissioner's vote.  He was found guilty of Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); honest-services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346; using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and making a material false statement to the FBI, in violation of 18 U.S.C. § 1001(a)(2).  

On appeal, Mr. Burnette's main challenge  turned on the Supreme Court's interpretation of the definition of "bribery"--as found in 18 U.S.C. § 201--in McDonnell v. United States, 579 U.S. 550 (2016).  In McDonnell, the Supreme Court narrowed the meaning of the term "official act," and clarified that in order to implicate the bribery statute's prohibition, a public official must either engage or agree to engage in (1) a sufficiently serious act--such as casting a vote (2) concerning a sufficiently serious and concrete matter.  

His challenge was, however, denied on the reasoning that some errors were invited, and others unpreserved, and Mr. Burnette could not meet the showing required for plain error--that the error affected his substantial rights.   

Mr. Burnette's other challenges--sufficiency of the evidence and evidentiary challenges--were also denied.  

The panel filed a separate concurrence to opine further on McDonnell and stress the importance of not "overread[ing]" the Supreme Court's opinion there.  The Court stressed that as an "inferior court," it and its sister courts "would do well to tread lightly and await further direction from [their] bosses before concluding that McDonnell revolutionized bribery laws as we have long known it."    

Dawson: Affirming Convictions for Sexual Exploitation of a Minor

In United States v. Dawson, No. 21-11425 (Apr. 5, 2023) (Wilson, Branch, Lagoa), the Court affirmed Mr. Dawson's convictions.  

The Court considered, as an issue of first impression, whether an adult who films himself exposing his genitals and masturbating in the presence of a child where the child is the object of the sexual desire in the film "uses" that child to engage in sexually explicit conduct for purposes of 18 U.S.C. § 2251(a), and held that such conduct fits squarely within the language of the statute. 

On appeal, Mr. Dawson argued that he did not violate § 2251(a) because the videos underlying his convictions depicted an adult engaging in solo, adult-only, sexually explicit conduct near a fully clothed minor who was neither the focal point of the images, depicted as a sexual object, nor otherwise involved in the sexual act.  He argued that his conduct did not constitute "uses" as that term is defined.  The Court disagreed, agreeing instead with the government's reading of § 2251(a)--that it covered passive use of a child in sexually explicit conduct.  That is, under § 2251(a), a minor must be involved in the offender's sexually explicit conduct, but need not necessarily be actively engaging in his or her own sexually explicit conduct.  

The Court noted, contrary to the Seventh Circuit in Howard, that its interpretation of "uses" in § 2251(a) did not pose a slippery slope problem because the statute ultimately requires fact-specific determinations.  As such, its passive interpretation of the term "uses" did not make the statute too broad.        

The Court also declined Mr. Dawson's invitation to rule in his favor by applying the rule of lenity because the Court found that the traditional tools of statutory interpretation provided sufficient clarity on the meaning of § 2251(a).  In so finding, the Court acknowledged that its application of the rule of lenity conflicted with those of the Third, Seventh, and Eighth Circuits.  Of note, the Court declined to hold--as the government argued--that Mr. Dawson's rule of lenity argument should have been reviewed for plain error because he failed to raise it below.  Instead, the Court clarified that a party cannot waive lenity--parties cannot waive the application of the correct law or stipulate to an incorrect legal test.   

Hall: Vacating Sentence and Remanding

In United States v. Hall, No. 22-10230 (Apr. 5, 2023) (Branch, Brasher, Ed Carnes), the Court held, as a matter of first impression, that a district court may not sentence a defendant to home confinement for violating the terms of his supervised release where the district court has also sentenced the defendant to the statutory maximum period of imprisonment for that violation.  The Court vacated Mr. Hall's sentence to the extent it imposed a term of home confinement and remanded for resentencing.  

Mr. Hall, a class C felon, violated the conditions of his supervised release.  After revoking his supervised release, the district court sentenced Mr. Hall to the statutory maximum two years' imprisonment and added one year of home confinement with location monitoring.  

The Court held that such a sentence is inconsistent with the limitation that a district court may impose home confinement "only as an alternative to incarceration."  As such, the district court lacked the authority to impose an additional year of home confinement on top of the statutory maximum sentence of incarceration.  In so holding, the Court joined the Fifth Circuit in United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004), which reasoned that a court cannot impose the maximum term of incarceration under 18 U.S.C. § 3583(e)(3) and also impose a period of home confinement under (e)(4).       

Penn: Affirming ACCA Sentence Based on Florida Cocaine Sale Convictions

In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions.

In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue.

Batmasian: No Ancillary Jurisdiction Over Pardoned Defendant's Motion to Expunge Conviction

In United States v. Batmasian, No. 21-12800 (Mar. 24, 2023) (Branch, Luck, Antoon), the Court held that the district court lacked jurisdiction to consider the pardoned defendant’s motion to expunge his conviction.

The defendant filed his expungement motion in the district court that convicted him. But the Eleventh Circuit rejected the defendant’s reliance on the doctrine of ancillary jurisdiction. No court had ever expressly embraced such jurisdiction for a constitutional expungement request. And the Court declined to do so because the alleged constitutional violation—a purported denial of his First Amendment right to donate to charities—was the natural result of an otherwise valid arrest or conviction.

Files: Section 404 Does not Permit Sentence Reduction for Non-Covered Offenses, Admits Lengthy Discussion about Holding/Dicta

In United States v. Files, No. 21-12859 (Mar. 24, 2023) (Newsom, Luck, Tjoflat), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The question in the case was whether the district court had authority to reduce the defendant’s sentence for a non-covered offense in addition to a covered offense. In Denson, the Court had previously stated that district courts could reduce a sentence only for a covered offense.  Here, the Court concluded that this statement in Denson was part of the holding of the case. And, it concluded, the Supreme Court’s decision in Concepcion did not abrogate that holding. The Court engaged in a lengthy discussion (which Judge Luck did not join) about when a statement is “necessary” to the result and thus forms part of the holding rather than dicta.

Judge Newsom, joined by Judge Tjoflat, concurred to explain why he believed it is a bad idea for appellate courts to issue alternative holdings.