Robinson: Vacating Contempt Conviction for Violating a Civil Injunction

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

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

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

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

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

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

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

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

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

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

Talley: Fugitive Status Does Not Toll Period of Supervised Release

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

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

Beach: Affirming Conviction for Tampering with a Witness

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

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

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

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

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

Wiley: Affirming Convictions

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

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

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

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

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

Curtin: Affirming Convictions and Sentence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bird: Affirming Convictions for Structuring

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  

  

Moore: Affirming Felon-in Possession Conviction and Sentence

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

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

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

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

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

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

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

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

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