Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, August 17, 2022

Alvarado-Linares: VICAR Murder and Attempted Murder Crimes of Violence Under § 924(c) Elements Clause

In Alvarado-Linares v. United States, No. 19-14994 (Aug. 16, 2022) (Newsom, Branch, Brasher), the Court affirmed the district court's denial of Mr. Alvarado-Linares's Davis-based § 2255 motion.    

Mr. Alvarado-Linares was convicted of one count of conspiracy under the Racketeer Influenced Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d); four counts under the Violent Crimes in Aid of Racketeering Act ("VICAR"), in violation of 18 U.S.C. § 1959(a)--two for murder and two for attempted murder, in violation of Official Code of Georgia §§ 16-5-1(a) and 16-4-1; and four counts of using a firearm in committing those offenses, in violation of 18 U.S.C. § 924(c).  He was sentenced to three concurrent life sentences plus eighty-five years.  Mr. Alvarado-Linares filed a motion to vacate his four firearms convictions--which resulted in 85-years of consecutive imprisonment--as unconstitutional in light of Davis

The Court granted a certificate of appealability on one issue: whether Mr. Alvarado-Linares's four firearms convictions are unconstitutional in light of Davis.  To resolve the issue, the Court noted that Mr. Alvarado-Linares must "bear the burden of showing that he is actually entitled to relief on his Davis claim, meaning he will have to show that his § 924(c) convictions[s] resulted from application of solely the [now-unconstitutional] residual clause," citing to In re Hammoud and Beeman.      

The Court, applying the modified categorical approach, and looking through the VICAR statute to the elements of the underlying state predicate--Georgia malice murder--held that Georgia malice murder is a crime of violence under § 924(c)(3)'s elements clause.  The Court also noted that a VICAR murder conviction predicated on federal murder would also meet the definition of crime of violence.  The Court then held that VICAR attempted murder--both under Georgia and federal law--is also a crime of violence under the elements clause because a conviction for attempted murder requires the government to prove--as an element of the offense--the use or attempted use of physical force.  Finally, the Court reasserted that aiding and abetting offenses can qualify as crimes of violence under § 924(c).  So, even though Mr. Alvarado-Linares's VICAR murder and attempted murder convictions were premised on an aiding and abetting theory, they nevertheless count as crimes of violence under § 924(c).      

Therefore, because Mr. Alvarado-Linares's VICAR convictions predicated on murder and attempted murder qualify as crimes of violence under § 924(c)'s elements clause, his four § 924(c) convictions remain valid after Davis.  

Judge Newsom filed a concurring opinion, writing separately "to ask whether the 'categorical approach' to identifying 'crime[s] of violence' has, to use a technical term of art, jumped the shark."  In Judge Newsom's view, the VICAR statute itself--where VICAR stands for Violent Crime in Aid of Racketeering--indicates that VICAR offenses are crimes of violence.         

Wednesday, August 10, 2022

Pate: § 1521 Applies to Both Current and Former Federal Officers and Employees

In United States v. Pate, No. 20-10545 (Aug. 10, 2022) (Newsom, Branch, Lagoa), the Court affirmed Mr. Pate's convictions predicated on violations of 18 U.S.C. § 1521, which prohibits the filing of a false lien or encumbrance against the property of any officer or employee of the United States on account of the performance of official duties.  

Mr. Pate was accused of filing various false liens against the former Commissioner of the Internal Revenue Service and the former Secretary of the Treasury for acts they performed as part of their official duties.  He filed these false liens after they had left their positions with the federal government.  On appeal, the Court considered whether § 1521 applies to false liens filed against former federal officers and employees for official actions they performed while in service with the federal government. 

The Court held that the plain language of § 1521 covers both current and former federal officers and employees.  For purposes of § 1521, Congress premised liability on action taken against "an individual described in section 1114," which itself addresses "any officer or employee of the United States or of any agency in any branch of the United States Government." As such, and giving effect to all of § 1521's provisions, the Court reasoned that reading § 1521 to limit its scope only to current officers and employees would fail to give effect to the phrase, "on account of the performance of official duties."  Section 1521 makes it illegal to file a false lien against the property of a federal officer or employee because of something he did as part of his official duties.  Thus, because § 1521’s prohibition depends upon what an individual did while acting as a federal officer or employee, and not simply his employment status at the time of the action at issue, the natural reading of the statute’s language leads to the conclusion that the terms “officer” and “employee” encompass both current and former officers and employees. 

Judge Newsom dissented.  He noted that this case raised a straightforward question of statutory interpretation: Is a former government official an "officer or employee of the United States" within the meaning of § 1114 and, thereby, of § 1521? Affording the quoted language its ordinary meaning, he would answer the question in the negative.  Therefore, because Mr. Pate's filed the liens against individuals when they were no longer officers or employees of the United States, Judge Newsom would have held that Mr. Pate's conduct fell outside the scope of § 1521's prohibition.           

Tuesday, August 09, 2022

Witt: Affirming Convictions and Sentence for Livestock Forage Disaster Program Fraud

In United States v. Witt, No. 21-10557 (Aug. 9, 2022) (Newsom, Marcus, Middlebrooks (S.D. Fla.)), the Court affirmed Ms. Witt's convictions and sentence. 

Ms. Witt was convicted for her part in a scheme to defraud the federal government out of relief funds intended for farmers affected by drought and fire (the Livestock Forage Disaster Program).  She was convicted of one count of conspiracy to commit wire fraud; two counts of theft of government funds; and one count of aggravated identity theft. 

On appeal, Ms. Witt first challenged the district court's denial of her motion for a new trial, arguing that the weight of the evidence preponderated in favor of a not guilty verdict.  The Court first noted that the government misunderstood Ms. Witt's argument on appeal, and clarified that a challenge to the denial of a motion for a new trial involves a different inquiry from that of a challenge to the sufficiency of the evidence.  The Court then rejected Ms. Witt's challenge.     

Next, Ms. Witt challenged the substantive reasonableness of her sentence, arguing that the district court should have sentenced her to house arrest rather than a traditional prison sentence.  The Court disagreed, finding her sentence of 28 months' imprisonment reasonable.  The Court noted that under 18 U.S.C. § 3582(a), district courts only "impose a term of imprisonment," but that the implementation of that sentence is left to the discretion of the BOP--that is, district courts do not have the authority to dictate whether a sentence is to be served in prison or in home confinement.  Additionally, though U.S.S.G. § 5C1.1(d)(2) provides that if the applicable guideline range is in Zone C of the Sentencing Table, the minimum term may be satisfied by a sentence of imprisonment that includes a term of supervised release with a condition that substitutes home detention, provided that at least one-half of the minimum term is satisfied by imprisonment, Ms. Witt's guideline range of 28 to 32 months placed her in Zone D, not Zone C.        

Thursday, July 28, 2022

King: Collateral-Attack Waiver Precludes 2255 Motion Based on Davis

In King v. United States, No. 20-14100 (July 28, 2022) (Grant, Luck, Anderson), the Court affirmed the denial of a 2255 motion based on Davis.

In his plea agreement, the defendant agreed not to collaterally attack his conviction or sentence in a 2255 motion.  After Davis, the defendant brought a 2255 motion, arguing that his 924(c) conviction, which was predicated on conspiracy, was no longer a valid crime.  The Eleventh Circuit held that, even though Davis subsequently announced a new retroactive rule of constitutional law, the defendant’s waiver remained valid under contract principles.  And while the Court had previously recognized limited exceptions to such waivers, including in the case of a jurisdictional defect, the defendant’s Davis claim did not fit any of those exceptions.  Specifically, the Court held that the claim did not involve a sentence exceeding the statutory maximum, because the maximum must be understood based on the law in effect at the time the waiver was signed by the parties.  The defendant bore the risk that there would be a favorable change in the law, and “the government’s wager has paid off” in that regard.

Judge Anderson concurred.  He agreed that the Davis claim did not satisfy the exception for sentences exceeding the statutory maximum.  However, he wrote separately to address the movant’s reliance on an exception for a miscarriage-of-justice/actual innocence.  A footnote in the majority noted that the Court had never adopted such an exception.  And Judge Anderson opined that this case would not satisfy any such exception because the defendant admitted to his involvement in an armed bank robbery at the plea, and that dismissed count could have formed the basis of the 924(c) offense.

Saturday, July 16, 2022

Watkins: Sufficient Evidence Supported Convictions for Defrauding Investors

In United States v. Watkins, No. 19-12951 (July 15, 202) (Newsom, Tjoflat, Ed Carnes), the Court affirmed the defendants’ fraud convictions.

The defendants solicited millions of dollars in investments from wealthy and famous people, including Sir Charles Barkley, by misleading them about their ownership interest in the investment company, that the funds would be used for business (rather than personal) purposes, and that other high-profile people were involved in the company.  The defendants also directed a friend to request a loan from a bank where the defendants were already maxed out, and to conceal that the loan was for the defendants.

On appeal, the Eleventh Circuit held that the evidence was sufficient to support the defendants’ convictions.  As for wire fraud, the evidence was sufficient to show an intent to defraud because the misrepresentations affected the nature of the bargain and sought to obtain money to which the defendants were not entitled.  As for bank fraud, the evidence was sufficient because concealing the true recipient of the loan affected the nature of the bargain with the bank.

The Eleventh Circuit held that the district court did not abuse its discretion by denying the defendants’ proposed jury instruction on the “intent to harm” element of wire/bank fraud.  Using the pattern instruction, the court properly instructed the jury that it could not have convicted without finding that the misrepresentations were made with an intent to cause loss or injury to the people from whom he solicited money, and thus to obtain money to which he was not entitled.  The court also properly instructed the jury on the theory of defense.

Finally, the Eleventh Circuit held that the district court did not abuse its discretion by excluding defense evidence about the value of the investment companies.  That evidence would not have affected the government’s theory of the case.  For example, showing that the companies were successful would have done nothing to relieve the defendant from liability for deceiving investors about how their money would be used.

Thursday, July 14, 2022

Lewis: No Privity Between State/Federal Prosecutors for Collateral Estoppel, and Upholding Exclusion of Moral Juror for Cause

In United States v. Lewis, No. 20-12997 (July 14, 2022) (Grant, Luck, Hull), the Court affirmed the defendant’s drug convictions.

First, the Court upheld the denial of a motion to suppress.  The argued that collateral estoppel prevented the federal government from re-litigating the legality of the traffic stop, which was already decided in state court.  The Court assumed, without deciding, that collateral estoppel applied to successive criminal prosecutions by different sovereigns, but held that it would not apply here because the defendant failed to establish privity between the state and federal authorities.  There was no evidence that the state was acting as a tool of, or were controlled by, federal prosecutors.

Second, the Court rejected the defendant’s arguments pertaining to jury selection.  It found no abuse of discretion in dismissing a juror for cause where the juror could not sit in judgment due to moral beliefs.  Unlike the religious juror in the en banc decision in Brown, the juror here never confirmed the ability to follow the law and the court’s instructions, and, unlike in Brown, the juror here was not already seated.  In addition, the Court found no clear error in the district court’s finding of discriminatory intent under Batson as to one of the defendant’s peremptory strikes, and that decision was harmless in any event because the defendant did not claim that the juror was unqualified to sit and he did not renew his challenge when given the chance.

Third, the Court upheld the district court’s exclusion of evidence about why the state court proceeding against the defendant was terminated, including the state court’s order finding the federal government’s main witness to be not credible.  Although the district court excluded the evidence as irrelevant, the Eleventh Circuit did not decide whether it was because it was harmless, as there was other overwhelming evidence of guilt.  For the same reason, the Court found no plain error with respect to the defendant’s argument that the exclusion deprived him of his right to present a complete defense.

Butler: Affirming Upward Variance Life Sentence in Enticement/Production Case

In United States v. Butler, No. 21-10659 (Wilson, Branch, Tjoflat), the Court affirmed the defendant’s life sentence for enticing a minor to engage in sexual activity and for production of child pornography.

Although it was an upward variance from the guideline range of 292-365 months, the Court held that the life sentence was substantively reasonable.  The district court did not abuse its discretion by failing to consider his age, amenability to treatment, acceptance of responsibility, or the circumstances of his prior offenses.  The district court did not abuse its discretion by giving significant weight to any irrelevant sentencing factors.  And the district court did not unreasonably weigh the sentencing factors.  Instead, the court reasonably concluded that the guideline range did not adequately reflect his criminal history or the need to protect the public, and that finding was within the court’s discretion.

Wednesday, July 13, 2022

Hesser: Reversing Denial of 2255 Motion Based on Counsel's Failure to Seek Rule 29 Judgment of Acquittal

In Hesser v. United States, No. 19-13297 (July 13, 2022) (Lagoa, Brasher, Tjoflat), the Court reversed the partial denial of a federal prisoner’s 2255 motion.

The movant alleged that defense counsel was ineffective for failing to move for a Rule 29 judgment of acquittal after the government’s case in chief.  The district court granted the 2255 motion for three counts of tax fraud—the Eleventh Circuit on direct appeal had already held that the evidence was insufficient and affirmed based on the deferential standard of review.  But the district court denied the 2255 motion with respect to a conviction for attempted tax evasion.  On appeal, the Eleventh Circuit held that this was error because, had counsel filed a Rule 29 motion after the government’s case, the district court would have been required to grant it.

The Court explained that the government’s evidence was insufficient because it did not establish an affirmative act constituting attempted tax evasion.  Although the defendant hid gold in his house with the purpose of hiding it from the IRS, the government failed to prove that he actually owned the gold and that it was therefore subject to a tax levied on him.  If the gold was not subject to a tax, then attempting to conceal it from the IRS was not a crime, even if the defendant made a mistake of law (not fact) by believing that it was.  In addition, while the defendant suspiciously quitclaimed his house to a newly created trust the government never proved how doing that would have affected his tax liability; there was no tax lien on his house at the time he transferred the house to a trust.