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.