Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, November 23, 2021

Litzky: Exclusion of Expert Testimony Did Not Violate Constitutional Right to Present a Defense

In United States v. Litzky, No. 20-10709 (Nov. 23, 2021) (Jordan, Newsom, Ed Carnes), the Court affirmed defendant's convictions for possessing child pornography, producing it, and conspiring to do the same.  

Defendant raised two issues on appeal: (1) the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability; and (2) her below-Guidelines sentence was substantively unreasonable. 

The district court found that the expert's proffered testimony failed to focus on the defendant's specific state of mind at the time of the charged offenses.  Therefore, because it failed to show how the defendant was unable to form the required mens rea, it would only serve to confuse the jury.  The Court agreed, finding that defendant's proffered expert testimony was not keyed to any legally acceptable defense theory.   The Court found that the defendant had failed to demonstrate a compelling reason for making an exception to the expert witness rule in FRE 702.  It reasoned that the defendant's proffered expert testimony was more akin to justification and excuse rather than a legally acceptable theory of lack of mens rea.  The Court also found that defendant failed to show that her proffered expert testimony bore persuasive assurances of trustworthiness as required by Rule 702.  "As the Supreme Court [has] explained, the Constitution leaves to the judges who must make these admissibility decisions wide latitude to exclude evidence that poses an undue risk of confusion of the issues.”        

The Court also affirmed defendant's 30-year sentence, which was 600 months below the Guidelines' recommendation.  The district court explained, in a 17-page order, why it believed a downward variance of 50 years--but no more--met the goals of sentencing.  The Court found the district court's determination well within the bounds of its discretion.  

Grady: Affirming Convictions and Sentences Over RFRA Objections

In United States v. Grady, No. 20-14341 (Nov. 22, 2021) (Branch, Grant, Ed Carnes), the Court affirmed defendants' convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass.  

Defendants, members of the Plowshares Movement--equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and others tools--illegally entered the Kings Bay naval base, intending to engage in symbolic disarmament as part of their faith.  They spray-painted numerous anti-nuclear and religious messages at various locations inside the base, poured bottles of human blood at various locations, taped an "indictment" outlining their complaints to a door of one of the buildings, defaced various monuments within the base, and entered restricted areas to hang banners protesting the morality of nuclear weapons and pray.  They were arrested and indicted on charges of: conspiracy; destruction of property on a naval installation; depredation of government property; and trespass.

All defendants moved to dismiss the indictment, arguing that their prosecution violated the Religious Freedom and Restoration Act ("RFRA").  Specifically, they asserted that their actions at the Kings Bay naval base were “in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal,” and the government’s prosecution of them substantially burdened their religious exercise in violation of RFRA. They maintained that, under RFRA, the government could not show that the decision to charge the defendants was the least-restrictive means of furthering its compelling interests in the safety and security of the base.  The district court denied their motion.   

On appeal, this Court affirmed the district court.  The Court first noted that the only prong of the RFRA analysis in dispute was the fourth prong: whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets.  In order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needs to accommodate both the religious exercise practiced in this case—unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations.  The Court found that the defendants failed to proffer a least-restrictive means that would simultaneously accommodate their religious exercise while protecting the government’s compelling interests, as was their burden to proffer.

The Court further held that the district court did not err in holding the defendants jointly and severally liable for the full amount of restitution.  Because the losses in question resulted from acts which were part of the conspiracy, the district court had the authority to hold all defendants jointly and severally liable for the full amount of restitution.    

The Court also held that the district court did not err in denying a reduction for acceptance of responsibility to the defendants.  The defendants argued that they went to trial only because of their RFRA defense, and maintained that they never denied engaging in the conduct in question.  But the Court held that the district court did not clearly err in finding that neither defendant had clearly demonstrated acceptance of responsibility because they continued to deny the illegality of their actions and put the government to its burden of proof.  Additionally, because the district court made a Keene finding, any error in denying acceptance of responsibility would have been harmless.       

The Court also held that the district court did not err when it used the total damages amount to enhance one defendant's base offense level under U.S.S.G. § 2B1.1(b)(1)(C).  The Court found that the evidence at trial supported the enhancement.    

The Court also held that the district court did not err in failing to address one defendant's RFRA-related sentencing argument in the context of 18 U.S.C. § 3553(a).  

Finally, the Court held that the district court did not abuse its discretion in failing to give one defendant's requested mistake-of-fact jury instruction.  The government had to prove that the defendants acted consciously and deliberately, not that they knew or believed their actions were illegal.  Therefore, because mistake of fact is not a valid defense, the district court did not abuse its discretion in declining to give the requested instruction.    


Monday, November 01, 2021

Ramirez: Vacating Terrorism-Enhancement Sentence and Remanding

In United States v. Ramirez, No.  20-10564 (Nov. 1, 2021) (Wilson, Rosenbaum, Hull), the Court vacated the defendant's sentence and remanded.  

Defendant purchased firearms and firearm parts and components, often through straw purchasers, and sold them throughout Colombia.  Six firearms found themselves into the hands of members of the National Liberation Army ("ELN"), which the U.S. State Department has designated a foreign terrorist organization.  Defendant pleaded guilty to knowingly providing material support to the ELN, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2.  

At sentencing, defendant challenged the application of the terrorism enhancement under U.S.S.G. § 3A1.4.  He argued that § 3A1.4 required that the government prove not only his material support to the ELN, but also that his offense conduct was "calculated" to influence, affect, or retaliate against the Colombian government.  Defendant claimed that his motive was to profit financially, not to retaliate against the Colombian government.  The district court overruled defendant's objections, suggesting that the court believed that the mere fact that defendant pleaded guilty to knowingly providing material support to a known terrorist organization per se satisfied § 3A1.4's "calculated" or specific intent requirement.  

On appeal, the Court vacated the application of the § 3A1.4 enhancement.  The structure of § 3A1.4 establishes two separate bases for applying the enhancement: (1) when the defendant's offense "involved" a federal terrorism crime; or alternatively, (2) when his offense was "intended to promote" a federal terrorism crime.  The Court focused on the first prong--namely on the meanings of "involved" and "federal crime of terrorism"--and whether defendant's offense or relevant conduct was "calculated" to influence, affect, or retaliate against government conduct.  The Court, agreeing with its sister circuits, found that "calculated" imposes an intent requirement.  That is, the government must show that the defendant's offense was planned to influence, affect, or retaliate against government conduct, even if that was not the defendant's personal motive.  

Here, the district court made no factual findings as to the § 3A1.4 enhancement, and erred in assuming that an offense under §2339B(a)(1) necessarily includes the additional requirement found in § 2332b(g)(5)(A) that the defendant's offense be "calculated" to influence, affect, or retaliate against government conduct.  Whether a defendant's offense is "calculated" to influence, affect, or retaliate against government conduct is a highly fact-specific inquiry that requires an examination of the record as a whole.  Because no such fact finding was conducted here, the district court erred in applying § 3A1.4's terrorism enhancement.  As such, the Court vacated defendant's sentence and remanded for resentencing and fact findings.                  

Thursday, October 21, 2021

Wheeler: Affirming and Reinstating Fraud Convictions Over Numerous Challenges

In United States v. Wheeler, No. 17-15003 (Oct. 21, 2021) (Wilson, Lagoa, Brasher) (per curiam), the Court reversed a judgment of acquittal for two defendants and affirmed the convictions and sentences for three defendants involved in a telemarketing scheme that tricked investors into making stock purchases.

First, notwithstanding the district court’s judgment of acquittal, the Court found that the evidence was sufficient to support the substantive mail and wire fraud convictions.  Although not overwhelming, and some misrepresentations to the investors did not affect the nature of the bargain under Takhalov, the evidence was sufficient for a jury to find that the defendants intended to defraud the investors.  The evidence was also sufficient as to conspiracy because, even if they did not know the extent of the fraud, the evidence was sufficient that the defendants knew the objective of the conspiracy and decided to join it.

Second, the Court found that the evidence was sufficient to support the convictions for the other three defendants.  The evidence was sufficient that one defendant aided and abetting a transaction, even if he did not personally participate in it, by discouraging the victim from going to the authorities.  As to another count, the evidence was sufficient that the victim relied on the defendant’s statements.  As to another defendant, the evidence was sufficient that the defendant participated in the scheme even though he did not participate in the transactions or have any contact with the victims.  And the evidence was sufficient that his misrepresentations went to the nature of the bargain and were false.

Third, although the prosecutor said in closing that an aspect of the court’s theory of defense instruction was “not the law,” the Court held that this remark, when considered in context, was not improper.  Based on the court’s statements during the charge conference, which distinguished between the offense elements and the theory of defense, the prosecutor could have reasonably believed that his comments were proper.

Fourth, the Court found no abuse of discretion in admitting certain evidence at trial.  A government informant did not give an improper lay opinion by testifying about jargon used in recorded conversations and how “boiler rooms” typically functioned based on his own experience.  Victim testimony about the amount of their losses and its impact on them was properly admitted because it illustrated that the defendants learned about their victims’ personal lives and then exploited them, and the court instructed the jury not to be influenced by sympathy or prejudice.  Although a close question, the court did not abuse its discretion by allowing the government to impeach a defense witness on a collateral matter in order to label a defendant a drug dealer, since the line of questioning was relevant to establish that the witness might be biased.  Finally, the district court did not abuse its discretion by instructing the jury on overlapping conspiracies because the instruction merely said that the participants overlapped and did not permit the jury to lump the two conspiracies together.

As to sentencing, the district court did not clearly err by applying the sophisticated-means or managerially-role enhancements.  And, as to loss, the Court held that a defendant is liable for the total amount of loss of the conspiracy when she furthers its overall objective, and there was evidence that the defendant did so.

Judge Wilson, joined by Judge Lagoa, concurred to express concern with the prosecution’s conduct at closing and throughout the trial.  Although it did not rise to the level of misconduct, he opined that it fell short of the high level of professionalism he expected prosecutors to embody.  The district court was required to spend much effort “corralling the prosecution’s often wayward tactics,” and “the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them.”

Wednesday, October 13, 2021

Giron: a District Court Need Not Consider 3553(a) Where It Finds No "Extraordinary and Compelling" Reasons for Compassionate Release

In United States v. Giron, No. 20-14018 (Newsom, Lagoa, Anderson) (Oct. 13, 2021), the Court--without oral argument or defense counsel--affirmed the denial of a pro se motion for compassionate release.

First, the Court held that the district court did not err by relying on the policy statement in USSG 1B1.13.  The Court held in Bryant that the policy statement binds district courts in their determination as to whether “extraordinary and compelling” reasons exist.  The defendant’s medical conditions, including high cholesterol, high blood pressure, and coronary artery disease, were manageable in prison notwithstanding the pandemic, and so he did not satisfy the criteria in Application Note 1(A).  And the defendant could not invoke the catchall provision in Application Note 1(D) because, under Bryant, only the BOP Director could invoke that provision.

Second, and relying on its recent decision in Tinker, the Court held that it is not an abuse of discretion for a court to deny relief based solely on a lack of “extraordinary and compelling” reasons, without considering danger to the public or the 3553(a) factors.  Before granting relief, a court must find that all three criteria are satisfied, so it may deny relief based on a lack of extraordinary and compelling reasons alone, without considering the 3553(a) factors.

Wednesday, September 29, 2021

Perry: Affirming Drug Distribution Convictions and Sentences Based in Large Part Upon DEA Task Officer Expert Testimony

In United States v. Perry, No. 16-11358 (Sept. 29, 2021) (Grant, Marcus, Axon (N.D. Ala.)), the Court affirmed the defendants' convictions and sentences.  

Defendants were indicted on numerous charges related to their involvement in a multi-year, multi-state drug distribution organization--namely, conspiracy to possess with intent to distribute in excess of 5kg of cocaine and in excess of 280g of cocaine base.  They proceeded to trial and were found guilty.  Defendant Perry was sentenced to 240 months in prison while Defendant Ragin was sentenced to 180 months in prison. 

On appeal, Defendant Perry argued that the district court erroneously admitted the testimony of DEA task force officer Lee because Lee was not properly qualified as an expert, and because his opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury.  Lee was qualified as an expert "in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine," and testified extensively as to the meaning of certain words and phrases used in numerous intercepted phone calls that were introduced at trial.  

The Court first found that Lee was properly qualified as an expert in interpreting code words for drugs--he had over 19 years of experience in law enforcement and formed his opinions using reliable methods and based on experience, general knowledge, and familiarity with the intercepted communications and their context.  As to Perry's second objection to Lee's testimony--that it invaded the province of the jury--the Court, reviewing for plain error, found that while portions of Lee's testimony were improper--where he crossed the line from interpreting drug language to opining about plain language, speculating, summarizing the evidence, or telling the jury what inferences to draw from the conversation--Perry failed to establish any plain error that affected his substantial rights.  The Court did note, however, that the trial court and prosecutor "should have taken greater care to cabin the case agent's expert testimony to his areas of expertise and to make clear to the jury in what capacity he was testifying."  But, the Court also cautioned that "it remains the duty of litigators to object contemporaneously when offending testimony is offered so that the trial court will have the opportunity to exercise its critical gatekeeping function when it matters most."    

Defendant Perry next objected to the admission of a recording of a cell phone call, which included out-of-court statements made by third parties who were not called to testify at trial.  The Court found no abuse of discretion in the admission of this call.  

Defendant Perry also objected to 50 additional conversations for the first time on appeal, arguing that it was not necessary for defense counsel to make the same objection over and over again during trial because the trial court had already made its ruling about one of the calls.  The Court disagreed, noting that a defendant is required to raise specific objections to specific questions and specific answers as they were offered.       

Defendant Perry also objected to the government's introduction of Rule 404(b) evidence involving events that fell outside of the charged conspiracy--specifically, the factual basis surrounding Perry's earlier federal conviction for the distribution of crack cocaine.  The district court allowed the evidence, but to limit its prejudicial impact, directed the parties to omit any reference to Perry having been convicted or having entered a guilty plea.  The Court found no error in the admission of this evidence because, by pleading not guilty, Perry made intent a material issue. 

Defendant Ragin argued that the district court should not have considered the drugs and firearms found in his residence when officers arrested him as "relevant conduct" during sentencing because his arrest fell outside the timeline of the conspiracy, and because the details of his arrest were admitted only as 404(b) evidence at trial.  The district court used the drugs and firearms found during Ragin's arrest to calculate his total offense level.  The Court found no error in the district court's consideration of the drugs and firearms found in Ragin's residence because the district court found that the drugs and firearms were part of a single course of conduct and were not an isolated, unrelated event.      

Defendant Ragin also argued that the district court erred by not sua sponte granting him a two-level minor-role reduction.  Reviewing for plain error, the Court found no error because it is insufficient to point to the broader criminal scheme when the district court determines a sentence by zeroing in on a defendant's actual conduct alone.  

Of note, the Court only considered the sentencing issues raised in Ragin's brief, finding his adoption of the arguments raised in his co-defendants' brief to be inadequate--it did not comply with the requirements of 11th Cir. R. 28-1(f).  

Tuesday, September 28, 2021

Somers: Certifying Questions on Florida's Assault Statutes to the Florida Supreme Court

In Somers v. United States, No. 19-11484 (Sept. 28, 2021) (Jill Pryor, Anderson, and Marcus), the Court granted the petition for rehearing, vacated its previous opinion and judgment, substituted this opinion in its place, and certified to the Florida Supreme Court the following two questions about the nature of Florida's assault statutes:


1. Does the first element of assault as defined in Fla. Stat. § 784.011(1) -- "an intentional, unlawful threat by  word or act to do violence to the person of another" -- require specific intent?

2. If not, what is the mens rea required to prove that element of the statute?


The Court reconsidered its opinion after the Supreme Court's decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In supplemental briefing, movant argued that Borden abrogated Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2021)--wherein the Court held that a Florida conviction for aggravated assault categorically qualified as a violent felony under the ACCA's elements clause--because Florida aggravated assault is not a specific-intent crime.  In response, the government argued that the specific intent to threaten another is an element of Florida aggravated assault.  Because the Florida Supreme Court has not answered the question of whether Florida aggravated assault requires specific intent, or something just like it, and Florida's lower courts are split on the mens rea required by the Florida assault statutes, the Court certified the above questions to Florida's Supreme Court for its consideration.    

Tinker: No Particular Order of Analysis Required for 3582(c)(1)(A) Motions

In United States v. Tinker, No. 20-14474 (Sept. 28, 2021) (Wilson, Newsom, Branch) (per curiam), the Court held that a district court does not procedurally err when it denies a request for compassionate release based on the 18 U.S.C. 3553(a) sentencing factors (or U.S.S.G. 1B1.13's policy statement) without first explicitly determining whether the defendant could present "extraordinary and compelling reasons."  

The Court noted that nothing on the face of 18 U.S.C. 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order.  Therefore, nothing requires a court to first find "extraordinary and compelling reasons" for release before considering the 18 U.S.C. 3553(a) factors or U.S.S.G. 1B1.13's policy statement.  Under 3582(c)(1)(A), the court must find that all necessary conditions are satisfied before it grants a reduction--i.e., support in the 3553(a) factors, extraordinary and compelling reasons, and adherence to 1B1.13's policy statement.  The absence of even one would foreclose a sentence reduction.  Therefore, a district court does not err where, as occurred  in this case, it assumes that "extraordinary and compelling reasons" exist in the 3582(c)(1)(A) context.         

The Court further found no error in the district court's analysis of the 3553(a) factors.  

Thursday, September 16, 2021

Watkins: Reversing Order Granting Suppression and Remanding With Instructions

In United States v. Watkins, No. 18-14336 (Sept. 16, 2021) (Luck, Ed Carnes, Marcus), on remand from the en banc Court, the Court reversed and remanded to the district court for further proceedings.  

The Court originally reversed the district court's order granting the defendant's motion to suppress on the government's interlocutory appeal.  Though the government conceded that it violated the Fourth Amendment when GPS tracking devices placed inside an intercepted package re-activated inside the defendant's home, the Court held that there was a "reasonable probability" that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result.

The case was then reconsidered en banc.  The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of the evidence, not a "reasonable probability."  The en banc Court remanded the case back to the original panel for further proceedings consistent with its holding.  

On remand, the Court, applying the preponderance of the evidence standard--whether the evidence more likely than not would have been discovered--concluded that it would have been.  In so holding, the Court found that the district court clearly erred when it disregarded the magistrate judge's credibility findings without holding a new hearing.  

The Court reversed the district court's order granting suppression and remanded the case to give the district court an opportunity to decide whether to conduct a de novo evidentiary hearing or to accept the fact findings of the magistrate judge.  The Court noted that, if accepted, those finding compel the end finding that it is more likely than not that the challenged evidence ultimately would have been discovered, without the constitutional violation, through lawful means.