tag:blogger.com,1999:blog-92401812024-03-17T22:59:51.232-04:00Defense Newsletter BlogDecisions in Criminal Cases by the Court of Appeals for the Eleventh CircuitAndy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comBlogger1697125tag:blogger.com,1999:blog-9240181.post-55033477010910682052024-03-05T17:29:00.000-05:002024-03-05T17:29:27.707-05:00Dubois: "Controlled Substance Offense" Under the Sentencing Guidelines Refers to Substances Regulated by State Law at the Time of the State Conviction, Not the Time of Federal Sentencing <p>In <i><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210829.pdf">United
States v. Dubois</a></i>, No. 22-10829 (Mar. 5, 2024) (<u>William Pryor</u>,
Rosenbaum, Abudu), the Court affirmed Mr. Dubois’s convictions and sentence for
attempting to smuggle firearms out of the United States, delivering firearms to
a common carrier for shipment without written notice, and possessing a firearm
as a felon.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">The Court denied Mr. Dubois’s motion to stay pending the
Supreme Court’s decisions in <i>United
States v. Rahimi</i>, No. 22-915, and <i>Jackson
v. United States</i>, No. 22-6640. It then rejected each of Mr. Dubois’s five
claims:</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">First, the Court held that its precedent foreclosed argument
that the federal felon-in-possession statute violates the Second Amendment. It
otherwise refused to accept that <i>New York
State Rifle & Pistol Association v. Bruen</i>, 142 S. Ct. 2111 (2022),
abrogated that precedent without “clearer instruction from the Supreme Court”
-- particularly given that <i>Bruen</i>
makes clear that its holding is in keeping with <i>District of Columbia v. Heller</i>, 554 U.S. 570 (2008), and the <i>Bruen</i> majority mentioned neither felons
nor the felon-in-possession statute.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Second, and contrary to Mr. Dubois’s sufficiency-of-evidence
argument, the Court held that the record contained ample circumstantial proof that
Mr. Dubois knew his shipment contained firearms.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Third, the Court rejected argument that Mr. Dubois’s prior
marijuana conviction in Georgia could not establish a “controlled substance
offense” under U.S.S.G. § 2K2.1(a)(4)(A). In reaching this decision, the
Court joined circuits that have held that, for prior state convictions,
“controlled substance” refers to drugs on the state’s drug schedules, rather than
those regulated by federal law. It then adopted the rule of the Third, Sixth,
and Eighth Circuits that “controlled substance” also refers to a substance that
was regulated by state law at the time the defendant was convicted of the state
drug offense, not the time of federal sentencing. This is so, the Court
reasoned, because the guideline’s phrase “subsequent to” supports a
backward-looking approach. Additionally, the Supreme Court’s reasons for
adopting a time-of-state-conviction approach when it interpreted ACCA’s similar
provision, <i>see</i> <i>McNeil v. United States</i>, 563 U.S. 816 (2011), compel the same
approach under the guideline.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Fourth, the Court held that its precedent also foreclosed
argument that Mr. Dubois’s stolen-gun sentence enhancement, without proof of
knowledge that the gun was stolen, violated the Fifth Amendment.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Fifth, applying the plain-error standard, the Court held
that undisputed record evidence supported the district court’s determination
that Mr. Dubois could pay his $25,000 fine.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Judge Rosenbaum, with Judge Abudu joining, concurred. This
concurrence separately expressed, among other things, why the Supreme Court’s
impending decisions in <i>Jackson</i> and <i>Brown v. United States</i>, No. 22-6389, are
unlikely to affect Mr. Dubois’s § 2K2.1(a)(4)(A) claim. The concurrence
emphasized that Mr. Dubois’s case arose under the Sentencing Guidelines, while <i>Jackson</i> and <i>Brown</i> arose under ACCA. This “makes all the difference,” it
explained, because ACCA defines “controlled substance” by express reference to
the federal Controlled Substances Act, or “CSA,” and therefore directs that a
“controlled substance” is what the CSA says it is, no matter how state law
defines it. Neither Congress nor the federal Sentencing Commission can amend
the CSA or, by extension, ACCA. And the guideline’s lack of statutory
cross-reference makes Mr. Dubois’s case and <i>McNeil</i>
indistinguishable.</p>Ta’Roncehttp://www.blogger.com/profile/16741886990849496963noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-1579083044279244172024-02-27T13:04:00.000-05:002024-02-27T13:04:50.096-05:00Kent: Affirming Admission at Trial as Non-Hearsay a LEO's Statement Recounting Witness Statements that Implicated Defendant<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202213068.pdf">United States v. Kent</a>, No. 22-13068 (Feb. 26, 2024 (Wilson, Jill Pryor, <u>Brasher</u>), the Court affirmed Mr. Kent's conviction. </p><p>Mr. Kent was charged with RICO conspiracy and five substantive crimes, including an attempted murder. The government alleged that the gang Mr. Kent was allegedly a member of murdered a former gang member--Rhodes--for cooperating with the police's investigation into the attempted murder of another individual--Muhammad. Specifically, the government’s theory was
that Mr. Kent and other alleged gang members believed that Rhodes told the
police that Mr. Kent had attempted to murder Muhammad and, then,
murdered Rhodes for that reason. To support this theory, the government introduced an investigator’s testimony from a preliminary hearing in a related case,
which identified Rhodes as cooperating with law enforcement to
implicate Mr. Kent in the attempted murder of Muhammad. By offering the testimony, the government sought to establish that other
gang members present at the hearing learned of Rhodes’s apparent
cooperation and murdered him because of it, i.e., the government
offered the out-of-court statements for the effect they had on the
listener. </p><p>Mr. Kent challenged the admission of the above testimony, arguing it was hearsay and admitted in violation of the Confrontation Clause. The Court disagreed, finding the testimony admissible as nonhearsay, offered for the effect it had on the listeners and not for the truth of the matter asserted. The Court further found the testimony relevant for a non-hearsay purpose, and found that the district court took sufficient steps to ensure that the jury did not consider the out-of-court statements as substantive evidence of guilt. </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-5779679977711276442024-02-27T12:20:00.000-05:002024-02-27T12:20:57.853-05:00Rudolph: Holding that § 2255 Motions are Vehicles for Attacking Sentences, Not Convictions In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202112828.pdf">Rudolph v. United States</a>, No. 21-12828 (Feb. 12, 2024) (Wilson, <u>Grant</u>, Brasher), the Court found Mr. Rudolph's attempts to collaterally attack his sentences barred by his plea agreement. <div><br /></div><div>In order to avoid the death penalty for setting off a series of bombs (some during the Olympics in Atlanta), Mr. Rudolph pleaded guilty to six federal arson charges and four counts of use of a destructive device during and in relation to a crime of violence. As part of his plea deal, he waived his right to appeal his conviction and sentence, as well as his right to collaterally attack his sentence in any post-conviction proceeding, including under 18 U.S.C. § 2255. His waiver specifically stated: "In consideration of the Government’s recommended
disposition, the defendant voluntarily and expressly
waives, to the maximum extent permitted by federal
law, the right to appeal his conviction and sentence in
this case, and the right to collaterally attack his
sentence in any post-conviction proceeding, including
motions brought under 28 U.S.C. § 2255 or 18 U.S.C.
§ 3771, on any ground."</div><div><br /></div><div>Post-<i>Davis</i>, however, Mr. Rudolph filed a § 2255 motion to vacate his § 924(c) convictions and sentences because his arson offenses no longer qualified as crimes of violence. The district court denied the motion, finding it barred by the plea agreement because "it is not possible to
collaterally attack only a conviction under 28 U.S.C. § 2255, which
provides an avenue to attack the defendant’s <i>sentence</i>."</div><div><br /></div><div>On appeal, this Court agreed with the district court, holding that § 2255
is a vehicle for attacking <i>sentences, not convictions</i>, and therefore finding Mr. Rudolph's motion barred by his plea agreement. The Court noted: "Section 2255 fundamentally remains a
procedure for prisoners to challenge their sentences. That is no less
true when the method of attack is to show that a conviction was
illegal. Even then, a motion under § 2255 is a collateral attack on
the proceeding or process of detention." </div><div><br /></div><div>The Court also refused to adopt a miscarriage-of-justice exception to the general rule that appeal waivers are enforceable, splitting from the First and Eighth Circuits. And even so, the Court noted that Mr. Rudolph was not "actually innocent" of the § 924(c) convictions because actual innocence means factual innocence--that is, it is more likely than not that no reasonable juror would have convicted him. </div><div><br /></div><div>Finally, the Court obliquely hinted that there may be other mechanisms by which Mr. Rudolph could collaterally challenge his convictions--such as maybe remedies available at common law--but failed to specifically delineate what those mechanisms were. </div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-80203646644395160732024-02-27T11:03:00.001-05:002024-02-27T11:03:44.210-05:00Sanfilippo: Dismissing Appeal Raising Potentially Viable SOL Defense as Waived by Guilty Plea<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202211175.pdf">United States v. Sanfilippo</a>, No. 22-11175 (Feb. 8, 2024) (Jordan, <u>Lagoa</u>, Marcus), the Court dismissed Mr. Sanfilippo's appeal.</p><p>Mr. Sanfilippo appealed his conviction for wire fraud pursuant to a guilty plea. He argued that the district court erred in denying his motion to dismiss the indictment against him because it was issued after the expiration of the federal statute of limitations
under 18 U.S.C. § 3282. More specifically, he argued that the district court
misinterpreted § 3282(a), and thus incorrectly concluded that the
government indicted him within the statute of limitations by filing an information. His argument specifically relied on a case that was pending before this Court at the time of his plea--<i>United States v. B.G.G.</i> At the change of plea hearing, the government noted that if it turned out that the government was in error by filing an information within the statute of limitations, Mr. Sanfilippo "would be exonerated at that point, just as a matter of fundamental fairness." The government further noted that what it would do was "allow [Sanfilippo] to withdraw
his guilty plea, and then [the government] would have to dismiss
the charges, because the statute of limitations had run. Sanfilippo
would be able to file a motion to dismiss based on the statute of
limitations again, in which case it would be granted at that point." </p><p>The Court held, however, that it could not resolve the statute of limitations issue raised because Mr. Sanfilippo entered an unconditional guilty plea and, therefore, waived his ability to appeal the district court's denial of his motion to dismiss the indictment. The Court reiterated that a defendant’s unconditional plea
of guilty, made knowingly, voluntarily, and with the benefit of
competent counsel, waives all non-jurisdictional defects in that defendant’s court proceedings. As such, if Mr. Sanfilippo wished to preserve appellate review of the district court's denial of his motion to dismiss the indictment while pleading guilty, he should have entered into a conditional plea in accordance with Fed. R. Crim. P. 11(a)(2). The government's statements at the change of plea hearing were insufficient to demonstrate its (and the court's) direct assent to a conditional plea. </p><p>Judge Jordan concurred in full, but wrote separately to alert the parties that their agreement to allow Mr. Sanfilippo to withdraw his guilty plea if the Court ultimately
rules against the government on the statute of limitations issue—
something the district court seemed to countenance—will require
traversing some tricky jurisdictional terrain. This is so because a district court has limited jurisdiction to set aside or modify a defendant's conviction or sentence, and it does not possess inherent authority to take such action. Judge Jordan expressed confusion over how it is that the parties believed that they would be able, months or years from now, to go back to the district court and request that Mr. Sanfilippo be allowed to withdraw his guilty plea in a closed case. He noted the possibility of Mr. Sanfilippo seeking collateral relief, which has its own limitations period. </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-18770785407025150432024-02-27T10:05:00.000-05:002024-02-27T10:05:31.862-05:00Daniels: Affirming Hobbs Act Robbery Convictions and Sentence, With One Judge Noting Pattern Instruction on Identification Needs Updating<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210408.pdf">United States v. Daniels</a>, No. 22-10408 (Jan. 24, 2024) (Jordan, <u>Lagoa</u>, Marcus), the Court affirmed Mr. Daniels's convictions and sentence. </p><p>Mr. Daniels was convicted of ten counts of Hobbs Act robbery and sentenced to 180 months' imprisonment. </p><p>On appeal, he first argued that the district court erred by rejecting his proposed jury instruction on eyewitness identifications, taken from the Third Circuit's model instructions. The Court disagreed, finding that the instructions given substantially covered Mr. Daniels's proposed instruction on eyewitness identifications. </p><p>He next argued that cumulative evidentiary errors prejudiced his right to a fair trial. Applying plain error review to the claims of evidentiary error, the Court disagreed.</p><p>He also argued that the jury lacked sufficient evidence to convict him under Count 7 of the superseding indictment. First, he argued that no reasonable jury
could find beyond a reasonable doubt that the robber in Count 7
threatened the victim with force or violence—a necessary condition for Hobbs Act robbery. Second, he argued that no reasonable
jury could find, beyond a reasonable doubt, that he committed the
robbery alleged in Count 7. The Court rejected both arguments. </p><p>Finally, he argued that his sentence was substantively unreasonable because the district court accounted for Mr. Daniels's Count 7 conviction. The Court found this argument failed because it rested only on the assumption that there was insufficient evidence to convict him
for the robbery alleged in Count 7.</p><p>Judge Jordan concurred in full, but wrote separately to urge the Eleventh Circuit Committee on Pattern Jury Instructions to revise the pattern instruction on identification to allow juries to consider, in appropriate cases, that the witness and the person identified are of different races. He noted that the Eleventh Circuit's pattern instruction on identification has not been substantively updated since 1985, almost 40 years ago. In his view, it is time for the Court to take account of the abundant literature on cross-racial identification and revise its instruction on eyewitness identification to permit juries to consider, in appropriate cases, that the
witness and the person identified were of different races. </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-66034969851966428862024-01-29T15:46:00.000-05:002024-01-29T15:46:48.999-05:00Pugh: Finding 18 U.S.C. § 231(a)(3) Facially Constitutional In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202113136.pdf">United States v. Pugh</a>, No. 21-13136 (Jan. 18, 2024) (Lagoa, <u>Brasher</u>, Boulee (N.D. Ga.)), the Court affirmed Ms. Pugh's conviction. <div><br /></div><div>The Court addressed an issue of first impression regarding the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce. It was alleged that during a protest in Mobile, Alabama, Ms. Pugh shattered the window of a police car that was blocking protestors from walking on the interstate. Ms. Pugh moved to dismiss the indictment, arguing that § 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress’s power
to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of speech and expressive conduct, activities protected by the First Amendment,
(3) is a content-based restriction of expressive activities in violation
of the First Amendment, and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment’s Due
Process Clause. </div><div><br /></div><div>With regard to Ms. Pugh's first argument--that § 231(a)(3) is unconstitutional because it exceeds Congress's power under the Commerce Clause--the Court disagreed because the statute's jurisdictional element--the requirement that the civil
disorder “in any way or degree obstruct[], delay[], or adversely affect[] commerce”--is enough to limit the statute’s scope to constitutional applications. If a criminal statute contains a jurisdictional element that limits the statute to constitutional applications, that jurisdictional element immunizes the statute from a facial constitutional attack. Ms. Pugh had argued that the criminal act committed was too removed from any connection to commerce, but the Court, while acknowledging that argument to be a strong one, found that the jurisdictional element of
interstate commerce need not link directly to the criminalized act
itself as long as the object of the criminal act is sufficiently connected to interstate commerce. </div><div><br /></div><div>With regard to Ms. Pugh's second argument--that §231(a)(3) violates the First
Amendment because it broadly prohibits protected speech and expressive conduct--the Court held that the statute does not affect must speech at all. That is, although “interfere,” by itself,
could include speech, it is best read in § 231(a)(3) alongside
“obstruct” and “impede” as prohibiting someone from hindering a
law enforcement officer or fireman with more than mere words. Here, it was merely hypothetical that § 231(a)(3) could be enforced against speech. And the mere
fact that one can conceive of some impermissible applications of a
statute is not sufficient to render it susceptible to an overbreadth
challenge. The Court note that it need not decide today whether the statute might prohibit certain kinds of
expressive activities that have the effect of blocking police officers
from quieting a riot—such as directing others to riot. </div><div><br /></div><div>With regard to Ms. Pugh's third argument--that the statute on its face is a content-based restriction of activities protected by the First Amendment--the Court held that § 231(a)(3) is not a content-based regulation of speech. If it affects speech at all, § 231(a)(3) is content-neutral. Because it applies to “any act to obstruct, impede, or interfere with any fireman
or law enforcement officer” performing official duties “incident to
and during the commission of a civil disorder” affecting commerce
or a federally protected function, it does not draw distinctions based on the message conveyed by the relevant act. </div><div><br /></div><div>Finally, with regard to Ms. Pugh's fourth argument--that § 231(a)(3) violates the Fifth
Amendment’s Due Process Clause because it is vague on its face--the Court disagreed. Here, because Ms. Pugh allegedly engaged in conduct clearly proscribed by the statute, she cannot complain of the vagueness of the law as applied to the conduct of others. </div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-40912931384291282752024-01-17T11:47:00.002-05:002024-01-17T13:58:00.520-05:00Gatlin: Reversing Witness Tampering Conviction<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/201914969.pdf">United States v. Gatlin</a>, No. 20-14149 (Jan. 5, 2024) (Jordan, Luck, <u>Lagoa</u>), the Court reversed Mr. Gatlin's conviction and sentence as to witness tampering, but affirmed his sex trafficking of a minor and production of child pornography convictions and sentences, as well as the restitution order. </p><p>Mr. Gatlin appealed his convictions and sentences for sex trafficking of a minor (Count 1), production of child pornography (Count 2), and witness tampering (Count 3). </p><p>On appeal, Mr. Gatlin argued first that the evidence was insufficient as to all counts. The Court disagreed with regard to Count 1, finding the evidence sufficient. With regard to Count 2--production of child pornography--the Court disagreed with Mr. Gatlin's argument that § 2251 requires a specific intent to produce child pornography and that child pornography produced incidentally to a sexual
encounter is insufficient. The Court held that specific intent does not require that the defendant be single-minded in his purpose--it was enough for the government to show that making explicit photographs was <u>a</u> purpose for engaging in sexual activity with the victim. With regard to Count 3--witness tampering--the Court agreed with Mr. Gatlin that the evidence was insufficient as to intent because he asked the victim to lie only to his public defender, not a federal officer. The Court concluded that the evidence presented by the government established only a remote, outlandish, or simply
hypothetical possibility that the victim's recantation statements would reach federal officers. As such, no rational trier of fact could have found the federal nexus element to be met. </p><p>Mr. Gatlin next argued that the court's direction to the jury to continue deliberating after returning a verdict as to Count 1 was improper. With regard to Count 1, the court instructed the jurors that to find Mr. Gatlin guilty of sex trafficking, they had to find that he either acted (1) by means of force, threats of force, or coercion; or (2) in reckless disregard of the fact that the victim was a minor. The jury received a general verdict form a well as an interrogatory verdict form, which first asked if Mr. Gatlin was guilty and, if so, whether it was by use of force or by reckless disregard for the fact that the victim was a minor. The jury selected "guilty," but did not find either of the conditions necessary to trigger liability. As a result, defense counsel asked the district court to direct a verdict of not guilty as to Count 1, which the court declined. Instead, reasoning that the jury had returned an inconsistent verdict and the verdict had not been discharged, the district court clarified the instructions for the jury and directed them
to continue deliberating. After further deliberations, the jury
found Mr. Gatlin guilty under the second condition.</p><p>The Court disagreed with Mr. Gatlin's arguments. First, the Court held that the district court's actions did not run afoul of the Supreme Court's precedent on inconsistent verdicts in <i>United States v. Powell</i>, finding that the issue here was distinct because the inconsistency existed as to just one count (not between counts). Instead, the Court analogized to a situation addressed by then-Judge Gorsuch in <i>United States v. Shippley</i>, noting that directing the jury to continue deliberations under these circumstances was not error. Here, the district court had not accepted the jury's verdict and, as a result, the verdict was not final. Additionally, asking the court to enter a directed verdict of not guilty would have required the court to overlook the jury's unanimous finding of guilt as to Count 1 on the general verdict form. And the inverse--simply accepting the jury's general finding of guilt--was equally untenable. It was metaphysically impossible to give effect to the jury's verdict. The Court noted in a footnote, however, that it was not faced with a situation where the district court accepted an internally inconsistent verdict, which, according to the Court's sister circuits, would have triggered jeopardy and required a judgment of acquittal. </p><p>Second, the Court found that the district court's decision was not plainly erroneous under the 5th (due process and double jeopardy) and 6th Amendments (right to a fair trial). The Court found no plain error relating to double jeopardy because the verdict was not final. The Court also found no plain error in the district court's giving of further instruction to the jury, finding them not to be impermissibly coercive.</p><p>Finally, the Court affirmed Mr. Gatlin's sentence. Mr. Gatlin first challenged the custody, care, or supervisory control enhancement. The Court found the enhancement appropriate, finding “custody, care, or supervisory control" to be plain,
i.e., the plain meaning of stating that a child is in a person’s care is simply to say the person is responsible for looking after the child’s
wellbeing. Here, Mr. Gatlin occupied a guardian-like position over the victim. Mr. Gatlin next challenged the repeat-offender enhancement. The Court disagreed. Third, the Court found Mr. Gatlin's life sentence to be reasonable. Fourth, the Court upheld the restitution order, finding that it did not violate Mr. Gatlin's 6th Amendment rights. </p><p>Judge Jordan concurred in part and dissented in part. With regard to the inconsistent jury verdict issue, Judge Jordan emphasized that due to the district court’s non-acceptance of the inconsistent jury verdict on
Count 1 the Court was not faced with a situation where a final jury verdict
contains answers to special interrogatories that preclude a general
finding of guilt. Had the district court accepted the jury’s inconsistent verdict, he does not think Mr. Gatlin’s conviction on Count 1
could stand.</p><p>With regard to the production count, Judge Jordan dissented, believing the evidence to be insufficient to support a guilty verdict. In his view, the evidence showed only that Mr. Gatlin took a single "live" photo during sexual intercourse with the victim, not that he had sexual intercourse with her for the purpose of producing child pornography. He expressed a concern that in so affirming the conviction here, the Court was coming close to making § 2251(a) a strict
liability statute. </p><p>Judge Luck also concurred in part and dissented in part. He would have affirmed Mr. Gatlin's witness tampering conviction, finding the evidence sufficient. </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-39196069825138018752023-12-29T07:48:00.000-05:002023-12-29T07:48:34.163-05:00Fey: Affirming Convictions for Drug Distribution and Killing a Witness<p>In <u><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202211373.pdf">United States v. Fey</a></u>, No. 22-11373 (Dec. 28, 2023)
(<u>William Pryor</u>, 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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-53920355996800394362023-12-20T12:46:00.001-05:002023-12-20T12:46:31.780-05:00Hurtado: Affirming MDLEA Convictions Over Jurisdiction, Fourth Amendment, and Delay Challenges<p>In <u><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202112702.pdf">United States v. Hurtado</a></u>, 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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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 <u>Verdugo-Urquidez</u> and the Eleventh Circuit’s decision in <u>Cabezas-Montano</u>
held that it did not, Judge Tjoflat interpreted the Eleventh Circuit’s decision
in <u>Tinoco</u> to hold that it did, and he believed that holding was binding.
Judge Carnes and Grant disagreed with that interpretation of <u>Tinoco</u>.
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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.”).</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Judge Carnes, joined by Judge Grant, concurred to explain
that, contrary to Judge Tjoflat’s opinion, the Eleventh Circuit’s decision in <u>Tinoco</u>
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.”)</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-28778536789547736622023-12-20T10:42:00.000-05:002023-12-20T10:42:22.328-05:00Sotis: Affirming Convictions and Sentence for Illegal Exporting Scuba Equipment to Libya<p><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210256.pdf" name="_MailAutoSig">In <u>United States v. Sotis</u>, No.
22-10256 (Dec. 20, 2023) (William Pryor, Marcus, <u>Mizelle</u> (M.D. Fla.)),
the Court affirmed the defendant’s convictions for illegally exporting scuba
diving equipment to Libya.</a></p>
<span style="mso-bookmark: _MailAutoSig;"></span>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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).</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-78855742976774994112023-12-14T12:26:00.000-05:002023-12-14T12:26:07.267-05:00McCoy: Affirming Section 404 Denial Based on Pre-Apprendi Drug-Quantity Findings<p><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202113838.pdf" name="_MailAutoSig">In <u>United States v. McCoy</u>, No.
21-13838 (Dec. 14, 2023) (<u>Jordan</u>, 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.</a></p>
<p class="MsoNormal">The Court
re-affirmed its prior precedent holding that a defendant is bound by pre-<u>Apprendi</u>,
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.</p>
<span style="mso-bookmark: _MailAutoSig;"></span>
<p class="MsoNormal">Judge Grimberg concurred, sympathizing with the defendant’s
due process argument and wondering if defendants must now preserve arguments
based on future legislation.</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-10871906598471170582023-12-13T11:49:00.001-05:002023-12-13T11:49:43.140-05:00Kincherlow: Affirming Enticement Conviction under 2422(b)<p>In <u><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202211980.pdf">United States v. Kincherlow</a></u>, No. 22-11980 (Dec.
13, 2023) (Jordan, <u>Lagoa</u>, Ed Carnes), the Court affirmed the defendant’s conviction for enticing a minor under 18 U.S.C. 2422(b).</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Second, the Court held that binding precedent foreclosed the
argument that the district court erred by instructing the jury that “induce”
meant to “cause.”</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-60772261907943966012023-12-08T19:45:00.000-05:002023-12-08T19:45:33.937-05:00Duldulao: Applying Ruan and Vacating 21 U.S.C. § 841 Convictions <p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202013973.op2.pdf">United States v. Duldulao</a>, No. 20-13973 (Nov. 29, 2023) (Jordan, <u>Jill Pryor</u>, Tjoflat), the Court affirmed in part, vacated in part, and remanded in part for a new trial. </p><p>This appeal was on remand from the United States Supreme Court in light of <i>Ruan v. United States</i>, 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. </p><p>In <i>Ruan</i>, 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-<i>Ruan</i>, 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. </p><p>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 <i>Ruan </i>when it was remanded by the Supreme Court. On remand in <i>Ruan</i>, 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. </p><p>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. </p><p>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. </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-58023087992767523952023-11-28T09:35:00.000-05:002023-11-28T09:35:38.406-05:00Steiger: Granting Rehearing En Banc<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210742.1.pdf">United States v. Steiger</a>, No. 22-10742 (Nov. 27, 2023), the Court sua sponte ordered that the appeal be reheard en banc. </p><p>The panel, in vacating Mr. Steiger's sentence, found itself bound by <span style="font-family: inherit;"><i style="background-color: white; color: #333333;">United States v. Parks</i><span style="background-color: white; color: #333333;">, 823 F.3d 990 (11th Cir. 2016). </span></span><span style="background-color: white; color: #333333; font-family: inherit;">Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider </span><i style="background-color: white; color: #333333; font-family: inherit;">Parks</i><span style="background-color: white; color: #333333; font-family: inherit;">, 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. </span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-2173433874355478152023-11-16T18:25:00.000-05:002023-11-16T18:25:02.093-05:00Perez: 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 JuryIn <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210267.pdf">United States v. Perez</a>, No. 22-10267 (Nov. 14, 2023) (<u>Jordan</u>, Lagoa, Ed Carnes), the Court affirmed Mr. Perez's sentence. <div><br /></div><div>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.” </div><div><br /></div><div>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 <i>Apprendi </i>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. </div><div><br /></div><div>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 <i>Apprendi </i>and its
progeny. In so holding, the Court joined the Third and Second Circuits. </div><div><br /></div><div>The Court, however, affirmed Mr. Perez's sentence, noting that an <i>Apprendi </i>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. </div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-69707074101917268182023-11-16T17:46:00.001-05:002023-11-16T17:53:49.860-05:00McCall: Officers Relied Upon iCloud Search Warrant in Good Faith<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202113092.pdf">United States v. McCall</a>, No. 21-13092 (Oct. 27, 2023) (Rosenbaum, Branch, <u>Brasher</u>), the Court affirmed the denial of Mr. McCall's motion to suppress. </p><p>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. </p><p>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.</p><p>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. </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-84078541526855323082023-10-12T15:23:00.001-04:002023-10-12T15:23:30.129-04:00Johnson v. Nocco: Whether 4A Precludes LEO From Asking Passenger To Identify Himself<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202110670.pdf">Johnson v. Nocco</a>, No. 21-10670 (Oct. 2, 2023) (Wilson, Branch, <u>Tjoflat</u>), the Court, in a § 1983 action, held that the officers involved were entitled to qualified immunity. </p><p>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. </p><p>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. </p><p>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."</p><p><br /></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-48211905877614672032023-10-12T10:10:00.000-04:002023-10-12T10:10:08.851-04:00Pate: 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<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202010545.enb.pdf">United States v. Pate</a>, 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. </p><p>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."</p><p>The en banc Court considered whether a <i>former </i>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 <i>former </i>officers or employees of the United States. </p><p>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. </p><p>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. </p><p>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. </p><p>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." </p><p> </p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-60595950325871993672023-10-10T17:32:00.001-04:002023-10-10T17:32:44.812-04:00Dunn: Affirming Denial of Motion to Dismiss IndictmentIn <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202211731.pdf">United States v. Dunn</a>, No. 22-11731 (Oct. 10, 2023) (Jordan, Rosenbaum, <u>Hull</u>), the Court affirmed the denial of Mr. Dunn's motion to dismiss his indictment.<div><br /></div><div>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.</div><div><br /></div><div>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. </div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-49214543007231501092023-10-10T16:20:00.001-04:002023-10-10T16:20:24.374-04:00Steiger: Vacating Sentence and Remanding for ResentencingIn <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210742.pdf">United States v. Steiger</a>, No. 22-10742 (Oct. 3, 2023) (William Pryor, Jill Pryor, <u>Coogler </u>(N.D. Ala.)), the Court vacated Mr. Steiger's sentence and remanded for resentencing. <div><br /></div><div>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. </div><div><br /></div><div>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 <i>United States v. Parks</i>, 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. </div><div><br /></div><div>Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider <i>Parks</i>, 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. </div><div><br /></div><div><br /></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-9240181.post-77575947987299312322023-09-28T13:26:00.000-04:002023-09-28T13:26:57.234-04:00Robinson: Vacating Contempt Conviction for Violating a Civil Injunction<p><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202210949.pdf" name="_MailAutoSig">In <u>United States v. Robinson</u>,
No. 22-10949 (Sept. 28, 2023) (Jordan, <u>Rosenbaum</u>, Newsom), the Court
vacated the defendant’s contempt conviction for violating a civil injunction
against a stun-gun company.</a></p>
<span style="mso-bookmark: _MailAutoSig;"></span>
<p class="MsoNormal">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 <u>Percoco</u> and <u>Ciminelli</u>, 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.</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-25253495421945221122023-09-15T08:20:00.000-04:002023-09-15T08:20:10.651-04:00Jones: No Jurisdiction to Address Second 2255 Challenging 3559 Residual Clause Based on Johnson/Davis<p><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202013365.pdf" name="_MailAutoSig">In <u>Jones v. United States</u>, No.
20-13365 (Sept. 14, 2023) (Wilson, <u>Luck</u>, Lagoa), the Court directed the
district court to dismiss a second 2255 motion for lack of jurisdiction.</a></p>
<p class="MsoNormal">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 <u>Johnson</u>, <u>Dimaya</u>, and <u>Davis</u>. 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 <u>sua sponte</u> 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.</p>
<p class="MsoNormal">Judge Wilson
dissented, arguing that Jones was relying on the same rule of law announced in <u>Johnson</u>,
as well as <u>Dimaya</u> and <u>Davis</u>, 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.</p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-34763538645003768292023-09-08T11:32:00.003-04:002023-09-08T11:32:37.745-04:00Graham: No Prejudice from Grand Jury Meeting in Separate Courthouses During COVID<p>In <u><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202211809.op2.pdf">United States v. Graham</a></u>, No. 22-11809 (<u>Grant</u>,
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).</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.</p><p class="MsoNormal"><o:p></o:p></p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-68447608380184603992023-09-07T15:40:00.002-04:002023-09-07T15:40:19.909-04:00Talley: Fugitive Status Does Not Toll Period of Supervised Release<p><a href="https://media.ca11.uscourts.gov/opinions/pub/files/202213921.pdf" name="_MailAutoSig">In <u>United States v. Talley</u>,
No. 22-13921 (Sept. 7, 2023) (Wilson, Grant, <u>Brasher</u>), the Court vacated
the district court’s judgment revoking supervised release.</a></p>
<p class="MsoNormal">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.</p>Andy Adlerhttp://www.blogger.com/profile/01649092754947974719noreply@blogger.comtag:blogger.com,1999:blog-9240181.post-43662899505357965352023-08-31T16:28:00.003-04:002023-08-31T16:28:58.780-04:00Beach: Affirming Conviction for Tampering with a Witness<p>In <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202111342.pdf">United States v. Beach</a>, No. 21-11342 (Aug. 30, 2023) (Luck, Lagoa, <u>Tjoflat</u>), the Court affirmed Mr. Beach's conviction.</p><p>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. </p><p>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. </p><p>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. </p><p>With regard to the first and third issues, the Court found the evidence to be more than sufficient. </p>Unknownnoreply@blogger.com