Watts: Upholding Armed Bank Robbery and Obstruction Enhancements Following Pro Se Trial

In United States v. Watts, No. 17-12066 (July 24, 2018) (Branch, Martin, Jill Pryor), the Court affirmed the defendant's convictions for armed bank robbery and brandishing a firearm during a crime of violence.

First, the Court concluded that the evidence was sufficient to support the convictions because there were eyewitness accounts, clothing found in his car matched that worn by the robber, and he possessed the same caliber ammunition as would be used in the weapon that the robber brandished.

Second, the Court concluded that the district court did not violate his constitutional right to testify on his own behalf.  Although the pro se defendant repeatedly requested to testify, he changed his mind after having off-the-record conversations with his advisory counsel.  The record did not rebut the presumption that the defendant made his decision not to testify knowingly and voluntarily, even if he later had second thoughts.  And it did not indicate that he had a mistaken belief about his ability to testify.

Third, the Court upheld the imposition of a sentencing enhancement for obstruction of justice--namely, for destroying or concealing material evidence.  The Court found that the defendant did far more trying to avoid arrest; rather, he tried to alter his distinctive identifying tattoos that the investigators were looking for, thus destroying material evidence.

Hylor: Florida Attempted First-Degree Murder is a Violent Felony under the ACCA's Elements Clause

In Hylor v. United States, No. 17-10856 (July 18, 2018) (William Pryor, Jill Pryor, Restani), the Court held that Florida attempted first-degree murder was a "violent felony" under the elements clause of the Armed Career Criminal Act.

Relying on circuit precedent, the Court rejected the defendant's argument that murder by surreptitious poisoning would not satisfy the elements clause, because it is "capable" of causing pain or injury.  It was irrelevant that the offense was committed with indirect, rather than direct, force.  Also relying on circuit precedent, the Court found that attempting to commit murder had an attempted use of force as an element.  The Court also reiterated that, under circuit precedent, Florida aggravated assault and robbery were violent felonies.

Judge Jill Pryor concurred in the result.  Although bound by circuit precedent, she opined that the attempted murder offense should not satisfy the elements clause.  She disagreed with circuit precedent conflating an attempt to commit a violent felony with attempt to use physical force, arguing that this conflation rested on faulty logic: one could attempt to commit a violent crime without attempting to use physical force.

Guevara: Evidence Sufficient to Support Conviction for Causing Business to File False FinCEN Form, but Obstruction Sentencing Enhancement Not Sufficiently Supported

In United States v. Guevara, No. 15-14146 (July 11, 2018) (Robreno (E.D. Pa.), Tjoflat, Wilson), the Court upheld the defendant's conviction for causing or attempting to cause a sports car business to file a false FinCEN form with the IRS, but it remanded for reconsideration of whether a two-level sentencing enhancement for obstruction of justice was warranted.

The Court found that the evidence was sufficient to support the conviction.  Although the defendant never tried to persuade, influence, coax, or encourage the business to file a form containing misstatements, he knowingly caused the business to do so.  The defendant negotiated and paid for the vehicles with cash; he knew that the business would be required to complete a form as a result; he solicited his friend to act as a straw owner; and, as a result, the forms contained material misstatements about the identity of the owner.

The defendant also argued, for the first time on appeal, that the evidence was insufficient because the government failed to introduce either the original or certified copy of form submitted to the IRS, but instead introduced an IRS-prepared document summarizing the transactions.  The Court agreed that the failure to admit the IRS form was error under the best evidence rule in Federal Rule of Evidence 1002.  However, applying plain error, the Court concluded that this error did not affect the defendant's substantial rights or the fairness, integrity, or public reputation of the proceedings because, even without any evidence of a form containing the misstatements, the defendant still could have been convicted of attempting to cause the business to file a false form.

The Court, however, remanded for re-sentencing because the district court failed to make sufficient factual findings about how the defendant obstructed or impeded the investigation.  Instead, it made only vague and equivocal statements about his tax returns filed years before the offense, his use of a straw buyer, and his false statements that did not actually impede the investigation.  And the record did not clearly reflect how those statements supported the obstruction enhancement.  Accordingly, the Court vacated the sentence and remanded to allow the district court reconsider the obstruction enhancement and support it with factual findings.

Morales: Consent to Search by a Co-Occupant Was Valid Where Co-Occupant Defendant Was Nearby and Failed to Object

In United States v. Morales, No. 16-16507 (June 29, 2018) (Ed Carnes, Marcus, Ross), the Court upheld the defendant's felon in possession conviction and sentence.

First, the Court upheld the denial of the defendant's motion to suppress a warrantless search of the home based on the consent of a co-occupant.  The Court determined that the consent was voluntary because the two officers did not threaten or intimidate her, she was not restrained, she fully cooperated, and they explained that she had the right to refuse consent.  The Court then rejected the defendant's argument that her consent was invalid because the officers intentionally declined to ask him, a physically present co-occupant, for consent.  The Court emphasized that the defendant did not object, even though he was not far away from the door, and there was no evidence that the officers intentionally removed him from the area so that he could not refuse consent.  And the officers were not required to ask him whether he objected where the co-occupant consented.

Second, the Court found that the evidence was sufficient to support the conviction.  The defendnat admitted that he found the guns, brought them into the home, and placed them in the bag where they were found.  The Court rejected the defendant's argument that his confession was not sufficiently corroborated by other evidence, including the guns, ammunition, bag, and testimony of the searching officer.

Third, and finally, the Court rejected the defendant's argument that his ACCA sentence violated the Eighth Amendment.  That argument was foreclosed by precedent, and the defendant's "out-of-the-blue" argument that the prior precedent rule does not apply to sentencing issues was "without any support in the law."

Henderson: Upholding False-Statement Convictions by VA Employee

In United States v. Henderson, No. 16-16984 (June 27, 2018) (Ripple, Rosenbaum, Jill Pryor), the Court upheld the convictions and sentence for making false statements by a VA employee in connection with the delivery and payment of healthcare services.

First, and reviewing for plain error, the Court rejected the defendant's argument that the government failed to prove that the false statements were "material."  The Court found that the statements, even if ambiguous, had a natural tendency of influencing the decision-making body, because they could have misled a medical professional about whether the health care services had actually be rendered by the VA contractor.  Second, the Court concluded that the government sufficiently established the defendant's statements were made knowingly and willfully because, despite claiming to be informed that the patients had actually received medical services, the government presented evidence at trial to refute that claim.  Similarly, the government presented sufficient evidence to refute his claim that he lacked the requisite mens rea by closing consults only from earlier fiscal years.

Second, the Court upheld the defendant's conviction for making false statements to federal investigators during an interview.  The Court found the evidence sufficient with regard to his mens rea because the statement he made to investigators was inconsistent with other evidence.  And the Court found the evidence sufficient with regard to the materiality of his statement because, regardless of whether the agents already knew the truth or were actually misled, it had the tendency of influencing the government's investigation.

Third, and finally, the Court upheld the application of the enhancement in USSG 2B1.1(b)(15)(A) for the "conscious or reckless risk of death or serious bodily injury."  The government presented evidence showing that the false statements could have delayed and influenced patient care, and the government did not need to show actual evidence of death or serious bodily injury.  Moreover, the fact that the defendant initially refused to participate in the project, coupled with his eventual acquiescence, demonstrated his awareness of the risks posed by his conduct.  Moreover, one of the defendant's arguments was made in a Rule 35 proceeding after the notice of appeal had been filed, and the Court lacked jurisdiction to consider it because he did not amend his notice of appeal.  Finally, it was irrelevant that the probation officer disagreed with applying the enhancement.

Suarez: Upholding ISIS-Related Material Support Convictions and LWOP Sentence

In United States v. Suarez, No. 17-11906 (June 27, 2018) (Wilson, Ed Carnes, Jordan), the Court affirmed both the defendant's convictions for attempting to use a WMD and to provide material support to ISIS, and his life without parole sentence.

The Court concluded that the evidence was sufficient to support his convictions.  As for attempting to use a WMD, the Court rejected the defendant's argument that the government was required to prove a "substantial effect" on interstate commerce.  Instead, the Court concluded that, because this element went only to jurisdiction, the government was required to prove only a minimal effect on interstate commerce.  And the government met that low bar because a witness testified about how a terrorist attack would have affected tourism.  As for attempting to provide material support to ISIS, the Court found the evidence sufficient even though the defendant coordinated only with government informants and undercover officers, because he had the requisite intent to coordinate with and direct his services to ISIS, and he took substantial steps to do so.

As for the sentence, the Court first found no plain Eighth Amendment error.  The defendant was 24 years old, not a juvenile, and attempted to kill as many people as possible by detonating a bomb.  The Court next found no plain error with respect to the guideline calculations, rejecting the defendant's double-counting argument.  The fact that the base offense level and a "terrorism" enhancement were triggered by the same conduct did not constitute double-counting, because the two guidelines served different sentencing considerations and harms: one addressed the attempted use of dangerous materials with intent to injure the US or to aid a foreign entity, while the other addressed actions intended to influence or affect the government through intimidation or coercion.  Finally, the Court found the guideline sentence of life to be substantively reasonable, emphasizing that the district court properly considered what would have happened had the attempt offenses been completed.

Noel: Upholding Convictions for Extraterritorial Hostage Taking of an American Citizen

In United States v. Noel, No. 17-10529 (June 26, 2018) (Anderson, Marcus, Hull), the Court upheld convictions for hostage taking of an American citizen by a Haitian national in Haiti.

First, the Court held that the government was not required to prove that the defendant knew that the victim was an American citizen.  The Court reasoned that the victim's citizenship status was purely jurisdictional, and no mens rea is necessary for jurisdictional facts where the statute is otherwise silent.

Second, the Court rejected the defendant's argument that the statute was limited to crimes of terrorism.  The Court concluded that the plain language of the statute encompassed the defendant's conduct because he seized, detained, threatened to kill, and demanded ransom for the release of the hostage, who was an American citizen.  While the statute was focused primarily on terrorism and crimes involving governmental organizations, the plain language encompassed kidnapping and ransom demands with regard to private parties.  The Court joined every other circuit to address that issue.

Third, and finally, the Court rejected the defendant's argument that the extraterritorial application of the statute to his case violated due process.  Congress expressly provided that the statute would apply extraterritorially where the hostage is an American.  The Court rejected the defendant's argument that Congress lacked the constitutional authority to criminalize non-terrorism conduct committed by a Haitian national entirely in Haiti.  The Court's precedent had previously held that, regardless of whether the statute could be justified by the offenses clause (incorporating the law of nations) or the commerce clause, it implemented an international treaty and was therefore justified by the necessary and proper clause.  Finally, the Court concluded that application of the statute in this case was not arbitrary or fundamentally unfair, because the treaty, signed both by the U.S. and Haiti, provided global notice that such conduct could be prosecuted in a U.S. court.  And, even assuming that something more than the treaty was required, the victim's U.S. citizenship reflected a significant national interest of the U.S. in protecting Americans abroad.

Cozzi: Officer Lacked Even Arguable Probable Cause to Arrest Where He Ignored Easily Verifiable Exculpatory Evidence

Although a civil rights case, the Court's Fourth Amendment probable cause analysis should apply in criminal cases.  The Court emphasized that the officer unreasonably disregarded easily verifiable exculpatory evidence before arresting the plaintiff--specifically, the officer was told that the perpetrator had multiple tattoos, but the officer did not check to see if the plaintiff had matching tattoos before arresting him.  In addition, the evidence connecting him to the crime was otherwise very weak.  The officer received two tips that the plaintiff resembled the perpetrator, but one was anonymous, the officer knew that there was at least one other person who resembled the perpetrator, and the fact that one of the tipster's accurately identified the plaintiff's address and vehicle showed only that the tipster knew the plaintiff, not that he committed the crime.  Furthermore, while the officer found a plastic bag of pills on the plaintiff, that evidence did not match the items that the perpetrator stole, the officer did not conduct further investigation of that evidence, and the officer' search did not reveal any evidence linking the plaintiff to the crime.  The Court found that it did not need to decide whether the weak evidence possessed by the officer was alone sufficient because, by failing to verify the exculpatory information (the tattoos) before arresting him, the officer lacked even arguable probable cause under the totality of the circumstances.

Cobena Duenas: Evidence was Sufficient to Support Knowledge of Counterfeit Currency

In United States v. Cobena Duenas, No. 17-10509 (June 11, 2018) (Marcus, Ed Carnes, Ebel), the Court affirmed the defendant's counterfeit currency convictions.

On appeal, the sole issue was whether there was sufficient evidence to establish that the defendant knew that the transaction involved counterfeit currency.  Viewing the evidence in the light most favorable to the government, the Court found the evidence sufficient.   The Court emphasized that the defendant had substantial contacts with the organizer of the transaction and thus had ample opportunity to discover the object of the transaction; the defendant knew that the transaction was unlawful in nature; the defendant was instrumental to the success of the transaction, since he was responsible for the exchange; and, under the "prudent smuggler" doctrine, a jury could infer that the organizer would not have entrusted the defendant to close a deal for over $600,000 in counterfeit currency without telling him the details.  The Court distinguished five of its earlier sufficiency cases upon which the defendant relied, emphasizing again that he played a critical role in the actual exchange (as opposed to being merely present), had substantial contact and conversations with the organizer of the transaction, and was vested with substantial trust by the organizer.  Because the defendant was not a mere bystander or peripheral player, the Court found that the evidence was sufficient.

McLean: Immigration Judges are "U.S. Judges" for purposes of Criminal Statute Prohibiting Interference with Federal Officials

In United States v. McLean, No. 17-10741 (June 8, 2018) (Jordan, Wilson, Higginbotham), the Court upheld the defendant's conviction for threatening to assault an immigration judge with the intent to interfere with that judge's performance of official duties.

The Court rejected the defendant's argument that an immigration judge was not a "United States judge" within the meaning of the statute of conviction.  Because the statute defined that term to include U.S. Magistrate Judges, that foreclosed the defendant's argument that it was limited to Article III judges.  And the Court rejected his additional argument that immigration judges did not qualify because they are appointed by the Attorney General and serve within the Executive branch, emphasizing that they function as "judicial officers."

Man: Upholding Arms Export Conspiracy Conviction/Sentence Over Multiple Challenges

In United States v. Man, No. 16-15635 (June 6, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed a conviction and sentence for conspiracy to export defense articles without approval, in violation of the Arms Control Export Act. 

First, the Court found the evidence was sufficient to support the conviction.  Sufficient evidence established that she entered into an unlawful agreement with a co-conspirator, and so it did not matter that a third-party rejected their export proposals.  Sufficient evidence established that the defendant and her co-conspirator willfully violated the Act because, although the government was required to prove that the defendants knew their actions violated a known legal duty rather prove a mere awareness that their actions were generally unlawful, the government met that heightened mens rea standard in this case.  And because sufficient evidence showed showed that she was predisposed to commit the offense, the Court rejected the defendant's argument that she was entrapped.

Second, the Court found no abuse of discretion in admitting evidence of conspirators' communications.  A transcript of a conversation among her co-conspirators was admissible under the hearsay exception for statements offered against the defendant made by her co-conspirator during and in furtherance of the conspiracy.  Emails sent to the defendant by an unidentified third party were also admissible under that same hearsay exception.  And communications between the defendant her co-conspirator were intrinsic to the charged conspiracy and thus were not barred by Rule 404(b).

Third, the Court found that the defendant's sentence was procedurally and substantively reasonable.  As to the former, the Court concluded that the district court did not clearly err by declining to award her a minor role reduction under USSG 3B1.2(a), because she played an essential role in the conspiracy as the sole intermediary, by helping plan and organize the crime, she understood the scope and structure of the activity, she stood to benefit from its success, and her reliance on her mental status was governed by a different guideline and unpersuasive in any event given her persistent, deliberate, and sophisticated communications with the co-conspirators.  Her 50-month sentence was not substantively unreasonable because, contrary to the defendant's argument, the district court did not rely on an impermissible factor--i.e., her Chinese national origin--because the court was entitled to reference her allegiance to China, which was relevant to the offense.

Finally, the Court found found no plain Brady error by the government's failure to provide the defendant with an email sent by one of her co-conspirators to another, which the defendant argued could have been used to impeach one of them at trial.  The Court, however, found that she knew about the email yet failed to exercise reasonable diligence in procuring it before trial.  And she failed to establish a reasonable probability that it would have changed the verdict because, if anything, it would have helped the government establish the conspiracy.

Ponton: Castro's Notice-and Warning Requirement Applies to Petitions Pre-Dating Castro

In Ponton v. Sec'y, Fla. Dep't of Corrs., No. 16-10683 (June 4, 2018) (Ed Carnes, Marcus, Ross), the Court held that the district court erroneously dismissed a state prisoner's 2254 habeas petition as an unauthorized "second or successive" petition.

Although the district court denied on the merits an earlier pro se petition back in 1988, the Court concluded that this denial did not trigger the statutory bar on unauthorized second or successive petitions.  That was because there was no indication that the district court notified the petitioner that it would re-characterize the pleading as a habeas petition and gave him an opportunity to withdraw it, as required by the Supreme Court's decision in Castro.  Although Castro was not decided until 2003, the Court concluded that Castro's notice-and-warning requirement applied to petitions filed before that decision was issued.  And, although the petitioner here filed a number of other federal pleadings, they were all dismissed without prejudice or as unauthorized second or successive petitions, and thus also did not trigger the bar on second or successive petitions.

Campbell: No Reasonable Expectation of Privacy in a Home Used as the Base of Drug Trafficking Operation

In Campbell v. United States, No. 15-13261 (June 4, 2018) (Ed Carnes, Hull, Julie Carnes) (per curiam), the Court affirmed the denial of a 2255 motion alleging ineffective assistance of pre-trial counsel in connection with a motion to suppress.

The Court first concluded that counsel's performance was not deficient in investigating and litigating the suppression motion.  The specific facts of the case showed that counsel met with the client on multiple occasions to discuss strategy, complied with the client's request to file a motion, and competently argued the facts and the law on Fourth Amendment standing.  Although counsel might have investigated more thoroughly the client's connection to the residence, and although he did not call the client and other people as witnesses at the hearing, counsel could have reasonably believed that he had enough information to establish standing, and the Court does not second guess strategic decisions about which witnesses to call.

The Court also concluded that the movant failed to establish prejudice because he could not establish a meritorious Fourth Amendment claim, since he lacked a reasonable expectation of privacy in the residence as a house guest.  That was so because he was using the residence for a commercial purpose -- as the base of a marijuana trafficking operation -- and was using it for that purpose when he was arrested.  That he also hung out and kept personal possessions there was not sufficient to transform his business relationship with the house into a social one. 

Obando: A Flag Painted on the Side of a Vessel Does not "Fly" for Purposes of the MDLEA

In United States v. Obando, et al., No. 17-11202 (June 1, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed the defendants' Title 46 convictions.

On appeal, the main issue was whether a flag painted on the side of a vessel was "flying" for purposes of making a claim of nationality under the MDLEA.  The Court concluded that it was not.  It relied on the "ordinary meaning" of the term "fly," and found that this meaning made sense in the maritime context, citing maritime treatises and protocols.  The Court also found that other flag-related statutes supported that "flying" was a particular method of displaying a flag, and the MDLEA used that word instead of "displaying."  The Court rejected the defendants' reliance on: a Coast Guard form; idioms; statements from its earlier opinions; a district court decision supporting their functionalist interpretation; the argument that a textual approach would lead to absurd results; international law; and the rule of lenity.

The Court also rejected the defendants' alternative jurisdictional arguments.  First, it rejected the argument that a crew member made a verbal claim of registry, as that argument was contrary to a factual stipulation that no such claim was made.  Second, it rejected their argument that, by contacting Ecuador, the government was estopped from asserting the absence of any claim of registry.  Third, it rejected their argument that the coast guard acted in bad faith by knowingly contacting the wrong country.

Judge Black concurred in full, but noted that there was an additional ground for affirmance: there was no claim of nationality attributable to the vessel's master.  So even if the painted flag could otherwise support a claim of registry, it was insufficient without some claim by the master; the vessel could not speak for itself.

Scott: Second or Successive Brady Claims are Always Subject to the Gatekeeping Criteria

In Scott v. United States, Nos. 15-11377, 16-11950 (May 23, 2018) (Rosenbaum, Jill Pryor, Bartle), the Court held that second-or-successive Brady claims are always subject to the gatekeeping criteria in 2255(h), even if the petitioner could not have reasonably discovered the basis of the claim sooner, and there is a reasonable probability that timely disclosure would have resulted in an acquittal.

The Court reluctantly determined that this outcome was dictated by its prior precedent, which reached that same conclusion in the state-prisoner context of 2254.  However, in a lengthy analysis, the Court opined that this prior precedent was incorrect, conflicted with Supreme Court precedent and the Suspension Clause, and improperly rewarded the government for its unfair prosecution, thereby undermining the justice system.  In the Court's view, an actionable Brady claim that a diligent petitioner could not have reasonably been expected to discover should not be considered "second or successive," and thus should not be subject to the stringent gatekeeping criteria.  The panel urged the full Court to convene en banc in order to reconsider its prior precedent to the contrary.  The Court also concluded that counsel was not ineffective for failing to investigate further after taking the government at its word that it had produced all Brady material; the Court, however, did not foreclose the possibility of ineffective assistance of counsel where obvious red flags call the government's assurance into question.

Touset: No Reasonable Suspicion Required for Forensic Electronic Searches at the Border, Splitting with Two Other Circuits

In United States v. Touset, No. 17-11561 (May 23, 2018) (William Pryor, Julie Carnes, Corrigan), the Court held that reasonable suspicion is not required for a forensic search of an electronic device at the border, and, alternatively, reasonable suspicion existed.

The Court saw "no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property."  The Court refused to afford electronic devices "special treatment" just "because so many people now own them or because they can store vast quantities of records or effects," as border agents continued to bear the responsibility of preventing the importation of contraband regardless of advances in technology.  Only highly intrusive border searches of a person's body required suspicion, and that reasoning did not apply to electronic devices.  The Court acknowledged that the Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of electronic devices at the border, but the Court was "unpersuaded" by them.  The Court's recent decision in Vergara made clear that the Supreme Court's decision in Riley does not apply to border searches.  And it failed to see why a traveler's privacy should be given greater weight than the interest in protecting territorial sovereignty, as the Fourth and Ninth Circuits have suggested.  The Court suggested that doing so would "create special protection" for child pornography offenses.  The Court also suggested that it was up to Congress to create additional protections beyond what the Fourth Amendment required, and judicial restraint was especially important in this context.

Alternatively, the Court concluded that there was reasonable suspicion based on three separate payments to an account associated with a Philippine phone number, which was associated with an email account containing an image of child pornography.  Although those payments occurred over a year earlier, the Court joined other circuits rejecting staleness challenges in the child pornography context, where deleted filed can remain on electronic devices.

Judge Corrigan concurred, but declined to join the core holding because the government argued that no reasonable suspicion was required for the first time on appeal, and it was unnecessary to reach that issue given the existence of reasonable suspicion.

Mitrovic: Upholding Fraudulent Naturalization Conviction of Former Serbian Prison Guard

In United States v. Mitrovic, No. 16-16162 (May 23, 2018) (Corrigan (M.D. Fla.), William Pryor, Julie Carnes), the Court affirmed the defendant's conviction for unlawful procurement of naturalization.

At trial, the central dispute was whether the defendant served as a guard at a prison camp in Serbia where ethnic cleansing occurred in the 1990s, or whether he was instead forcibly conscripted into forced labor.  On appeal, he argued that the district court violated his right to a complete defense under Chambers v. Mississippi by refusing to admit hearsay statements of recalcitrant witnesses.  They were prisoners at the camp for a time period longer than defense witnesses who testified at trial, and they had initially stated that they had not seen him working as a guard, but later refused to be deposed because they were Muslims and did not want to be perceived as helping a Serb.

First, the Court ruled that application of the hearsay rules were neither arbitrary nor disproportionate, and did not violate the defendant's right to present a complete defense or infringe upon a weighty interest of the accused.  Rather, it only prevented him from increasing the quantity of witnesses who would tell the jury what other witnesses had already said.  The Court continued that, even if the correct application of the rules of evidence could violate Chambers, the hearsay statements here were different than the evidence in Chambers: they were merely helpful, not exculpatory; they were made 20 years after the events; they were not as compelling; and the declarants were not available for cross examination.  Only one of the factors slightly weighed in the defendant's favor -- i.e., the statements were possibly made against a social interest, which was an exception to hearsay in several states.  Thus, the Court concluded that Chambers was distinguishable.

Second, the Court rejected the defendant's argument that the district court erred by refusing to take judicial notice of the Geneva Convention to show that Bosnia would not have submitted documentation that it conscripted him into forced labor.  The Court assumed without deciding that the Geneva Convention could be judicially noticed, but found that the district court did not err by concluding that its probative value was substantially outweighed by the possibility of confusing the jury under Rule 403.  It was unclear whether the Geneva Convention applied, the jury would not know how to apply it, the defendant was still able to argue that he was conscripted into forced labor, and the Convention would not establish that a particular document was false.

Knowles: Erroneous Exclusion of Lay Identification Testimony Was Harmless

In United States v. Knowles, No. 16-16802 (May 15, 2018) (Jordan, Martin, Ginsburg), the Court concluded that the district court erred by excluding lay identification testimony, but it found the error harmless.

The district court had admitted under Rule 701 identification testimony from a government witness.  The Court rejected the defendant's argument that the testimony should have been excluded under Rule 403 because the witness was a law enforcement official who participated in the vehicle stop uncovering the incriminating evidence.  The official's familiarity with the defendant -- and thus the basis of his identification testimony -- was based in part on his observations of her during the traffic stop, and so it did not reveal any past or collateral contact by the defendant with the criminal justice system.

The Court, however, agreed with the defense that the district court erred by excluding defense identification testimony under Rule 701.  The Court applied the "equal treatment" principle used in the context of expert witnesses to the context of lay witnesses.  The defense witness was even more familiar with the defendant than the government's witness, and so he too should have been permitted to testify on the issue of identification.  And Rule 403 would not have barred that testimony, even though he had also served as an expert witness for the defense.  However, the Court concluded that the exclusion of his lay testimony was harmless, because the defense presented two former co-workers who provided identification testimony that would have rendered the excluded testimony cumulative.

Whitman: Upholding Bribery Conviction and Sentence

In United States v. Whitman, No. 15-14846 (Apr. 24, 2018) (William Pryor, Julie Carnes, Antoon), the Court upheld convictions and sentences for bribery, wire fraud, theft, and obstruction stemming the fraudulent procurement of government contracts.

One defendant challenged his bribery conviction on the ground that the court erred by failing to instruct the jury that giving illegal gratuities was a lesser-included offense of bribery.  The Court rejected that argument because the defendant advanced an exculpatory defense predicated on extortion that, if believed, would have required the jury to acquit him of both bribery and giving illegal gratuities.  The evidence thus would not have permitted the jury to acquit him of bribery but convict of him giving illegal gratuities.  As a result, the Court found it unnecessary to decide whether the latter was a lesser included offense of the former.

Another defendant challenged his sentence on the ground that he was not responsible for the entire loss amount attributable to the criminal scheme.  The Court rejected his argument that the actions of other government employees were taken independently and not the product of any criminal agreement.  The record permitted the district court to infer that he agreed to participate in a jointly undertaken criminal scheme.  It did not matter that the agreement was "implicit" or that he did not know every detail of the others' participation; it sufficed that he was fully aware of the objective and was actively involved in it.

Shabazz: Upholding Tax-Fraud Related Convictions and Sentences Over Numerous Challenges

In United States v. Shabazz, No. 17-10639 (Apr. 18, 2017) (William Pryor, Julie Carnes, Corrigan), the Court affirmed the defendant's tax-fraud convictions and sentence over a number of challenges.

First, the Court rejected the defendant's challenge to the admission of evidence from his wallet, because the search-warrant affidavit established probable cause to search the home where the wallet was found; and because the wallet was not outside the scope of the warrant, which authorized the agents to search for debit cards, among other things.

Second, the Court found that the district court did not clearly err by crediting the officers' testimony that they gave the defendant Miranda warnings, even though there was no corroborating evidence of the waiver.

Third, the Court found that the district court did not abuse its discretion by admitting evidence of uncharged tax returns because they were inextricably intertwined with the charged conduct, or by admitting photographs of the defendant and his wife with large sums of money in light of their financial circumstances.

Fourth, the Court concluded that the defendant waived his constitutional right to wear street clothes at trial by expressly declining the court's suggestion that he change into a suit and attempting to use his prison garb to his strategic advantage.

Fifth, the Court found no error when the district court instructed the jury on a Pinkerton theory of conspiracy, because there was ample evidence that the defendant joined a conspiracy and that the charged substantive offenses were reasonably foreseeable consequences of the conspiracy.

Sixth, the Court concluded that the evidence was sufficient to support the convictions, rejecting the defendant's argument that the evidence was insufficient to prove a conspiracy or, for the aggravated identity count, insufficient to prove that he knew the means of identification belonged to real people.

Lastly, as to the sentence, the Court concluded that: a) the district court did not clearly err by imposing a four-level minor-role enhancement, because there was substantial evidence that the defendant managed the scheme, there were at least five participants, and the court did not reverse the burden of proof; b) the district court did not clearly err by calculating the intended loss amount, upholding a methodology that considered losses from tax returns that used a common address, even though the defendant did not file them himself; and c) the 277-month sentence, the result of a downward variance, was substantively reasonable.