Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, November 22, 2022

BGG: In Government Appeal, District Court Abused its Discretion by Dismissing Information With Prejudice Under Rule 48(a)

In United States v. B.G.G., No. 21-10165 (Nov. 22, 2022) (Wilson, Luck, Lagoa), the Court, on appeal by the government, vacated the dismissal of an information with prejudice under Rule 48(a).

During the pandemic, the Southern District of Florida imposed a temporary moratorium on grand juries.  Concerned that they would not be able to charge the defendant within the statute of limitations, prosecutors filed an information before the statute of limitations expired.  Then, after the limitations period expired, the government moved to dismiss the information under Rule 48(a) without prejudice, which it believed would have triggered a six-month extension within which they intended to bring an indictment.  The district court, however, dismissed the information with prejudice, precluding a subsequent indictment.

On appeal, the Eleventh Circuit held that the district court abused its discretion by committing five separate legal errors.  First, the district court failed to apply the presumption of good faith to the government’s Rule 48(a) motion to dismiss.  That presumption applies even where, as here, the government articulates a reason for the dismissal.  Second, the district court failed to require the defendant to rebut the presumption by showing that the government sought the dismissal in bad faith.  Third, the district erroneously focused on the government’s reasons for filing the information (to preserve the availability of a future prosecution) rather than its reasons for seeking the dismissal (the defendant’s refusal to waive an indictment and consent to an information).  Fourth, the district court failed to apply the correct test in deciding whether to grant leave to dismiss even where the government overcomes the presumption of good faith: it failed to find that the dismissal went to the merits or demonstrated a purpose to harass.  Finally, the district court erred in dismissing with prejudice; where the government, the moving party, seeks dismissal under Rule 48(a) without prejudice before trial, then any such dismissal must be without prejudice and cannot bar a second prosecution.  The Court expressed no view on whether any subsequent prosecution would be barred by the statute of limitations.

Judge Wilson dissented.  He opined that the government’s dismissal was in bad faith and for the purpose of harassment, and it therefore should have been dismissed with prejudice.  In his view, the government sought to achieve a tactical advantage contrary to the defendant’s rights.

Wednesday, October 26, 2022

Malone: Finding Breach of Plea Agreement by Government

In United States v. Malone, No. 20-12744 (Oct. 26, 2022) (Rosenbaum, Tjoflat, Moody (M.D. Fla.)), the Court, applying plain-error review, vacated Mr. Malone's sentence and remanded for resentencing before a different district court judge.

Mr. Malone was charged with (1) three counts of wire fraud, in violation of 18 U.S.C. § 1343; (2) one count of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312; and (3) one count of sale of a stolen motor vehicle, in violation of 18 U.S.C. § 2313.  He agreed to plead guilty to four counts in exchange for the government's agreement to dismiss one count.  The government reserved the right to oppose a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 if it received information that Mr. Malone acted inconsistently with acceptance of responsibility between the date of the plea hearing and the date of the sentencing hearing.  The government also agreed to move for a one-level reduction for acceptance of responsibility, and to recommend a sentence within the advisory Guidelines range as calculated by the court at the sentencing hearing. 

The PSR recommended that Mr. Malone be denied acceptance of responsibility, which resulted in a guidelines range of 57 to 71 months' imprisonment.  Mr. Malone objected, arguing he had accepted responsibility, and that therefore, his guidelines range should instead be 41 to 51 months' imprisonment.  The government filed a sentencing memorandum seeking a term of imprisonment of 66 months--it did not explain its recommendation other than a general reference to the probation-recommended guidelines range and the § 3553(a) factors--and argued against any reduction at Mr. Malone's sentencing hearing, relying on pre-plea conduct.  The government also argued against any downward variance.  The district court declined to award any deduction for acceptance of responsibility, denied Mr. Malone's motion for a downward variance, and sentenced him to 71 months' imprisonment.      

On appeal, Mr. Malone argued that the government breached the plea agreement by relying on Mr. Malone's pre-plea conduct to argue against acceptance of responsibility and against a sentence within the guidelines range.  The Court--reviewing for plain error because Mr. Malone did not object before the district court that the government had breached the plea agreement--agreed with Mr. Malone.  Applying the framework set forth in Puckett v. United States, 556 U.S. 129 (2009), the Court found error, that was plain, that affected Mr. Malone's substantial rights.  The Court also worried that the government's "repeated, clear violations of the plea agreement" seriously affected the fairness, integrity, and public reputation of the judicial proceedings.  As such, the Court remanded for resentencing according to the terms of the plea agreement before a different judge.       

Judge Tjoflat dissented.  He asserted that such a claim--the government's unobjected-to breach of a plea agreement--cannot be raised on direct appeal (because it is not an error committed by the district court), and instead must be raised in a collateral attack in order to develop a complete factual record as to why Mr. Malone's attorney did not object.  He also asserted that the majority's analysis was improper because it is premised on the idea that the government can withhold evidence from sentencing judges based on promises made in plea agreements.  He recommended that the Court take up en banc the issue of the government's obligations under 18 U.S.C. § 3661 at sentencing.     

Friday, September 30, 2022

Conage: Fla. Stat. 893.135 Trafficking Is a "Serious Drug Offense" Under the ACCA

In United States v. Conage, No. 17-13975 (Sept. 30, 2022) (per curiam), the Court affirmed the defendant’s ACCA sentence based on a prior drug trafficking conviction under Fla. Stat. 893.135.

The defendant argued that his prior conviction was not a ACCA “serious drug offense” because 893.135 can be committed by purchase, whereas the ACCA requires possession with intent to distribute.  In a prior opinion, the Eleventh Circuit certified a question to the Florida Supreme Court about whether “purchase” under 893.135 necessarily required actual or constructive possession.  The Florida Supreme Court held that it did.  In light of the Florida Supreme Court’s opinion, the Eleventh Circuit rejected the defendant’s argument and affirmed his ACCA sentence.

Friday, September 23, 2022

Grushko: Upholding Access Device Fraud Convictions/Sentences Over Various Challenges

In United States v. Grushko, No. 20-10438 (Sept. 23, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the defendants’ convictions and sentences for conspiracy to commit access device fraud.

First, the Court held that officers did not violate the Fourth Amendment by entering the defendants’ home after detaining them outside.  Under the totality of the circumstances, the officers had reason to believe that one of the defendants was still inside the home because they did not know the identity of the men they had detained.  Although they had previously seen a picture of the defendant, his appearance had since changed, and the officers were not permitted to look through the wallets of the men because they were not under arrest.  And the officers heard noises from inside the home, and so had reason to believe that the defendant was still inside.

Second, the district court did not abuse its discretion in making comments to the voir dire panel about types of forensic evidence that might be seen on TV.  Although the statements were unnecessary and unwise, it was not reversible error because the court did not suggest that the government did not have to prove the elements or was relieved its burden of proof.  Nor did the statements create a mandatory presumption in favor of the government or entitle the jury to discount the defendant’s arguments in closing about whether the absence of fingerprint evidence created a reasonable doubt.

Third, as for the sentences: it was not impermissible double counting to apply a two-level enhancement for possessing device-making equipment just because that conduct underlied the conviction; there was no clear error in applying an aggravating-role enhancement because the defendants were organizers and leaders of the scheme, which involved another participant, and it did not matter if the two defendants were equally culpable; the district court adequately explained the sentence, and so it was not procedurally unreasonable; and any error as to the loss calculation was harmless because the court said it would have imposed the same sentence, and that sentence was not substantively unreasonable.

Judge Jordan concurred.  He joined the opinion in full, but wrote separately to emphasize that the court’s statements during voir dire were improper.

Wednesday, September 07, 2022

Doak: Affirming Convictions and Sentences for Transporting and Sexually Abusing Minors

In United States v. Doak, No. 19-15106 (Sept. 7, 2022) (Grant, Luck, Hull), the Court largely affirmed the defendants’ convictions and sentences for offenses involving the transportation and sexual abuse of minors.

As to the counts under 2423(a)—charging the transportation of minors with the intent that they engage in unlawful sexual activity—the defendants argued that the indictment was insufficient because it omitted the underlying state statutes prohibiting the sexual activity.  The Court rejected that argument because the specific state-law offenses are means rather than elements of a 2423(a) offense.  Thus, the state statutes did not need to be included in the indictment; including the statutory language of 2423(a) was enough.  Nor were the defendants deprived of fair notice; although it is best practice to include the state statutes, the indictment here contained key details about the defendant’s intended sexual activity. 

The Court next rejected the defendants’ sufficiency arguments.  As for the main defendant, the evidence at trial was sufficient for a jury to find that he transported the minors with an intent to sexually abuse the minors; even if he had other innocent reasons as well, that did not allow him to elude liability.  As for the co-defendant, who was convicted of aiding and abetting, the evidence was sufficient for a jury to find that she helped the other defendant transport the minors with the knowledge that he was sexually abusing them; it did not matter whether she disapproved of his conduct.

The Court next rejected the defendants’ evidentiary arguments.  First, the Court found that any error under Rule 412 in preventing the defense to offer evidence about one of the victim’s other sexual behavior was harmless; that evidence was offered to show that someone else had abuse her, but the defense was otherwise permitted to advance that theory, and the contrary evidence was substantial.  Second, the Court rejected the defendants’ argument that an FBI forensic expert’s testimony about how children process and disclose incidents of abuse was unreliable, as the expert had participated in thousands of such interviews, and the testimony helped the jury understand why the victims responded differently to the abuse.  Third, the district court did not abuse its discretion under Rule 404(b) or 403 by admitting a video of the defendant slapping the victims’ brother, since it explained why the victims felt threatened by the defendants and why they silently endured the abuse.


As for sentencing, the government cross-appealed the co-defendant’s statutory minimum sentence, arguing that it was substantively unreasonable.  However, the Court found no abuse of discretion: the district court did not improperly give her a lower sentence because she merely helped the main defendant as an aider and abettor; it did not overlook her own abuse of the minors and lack of remorse; and because the district court’s weighing of the 3553(a) factors was a close call, that meant there was no abuse of discretion even though the Court might have gone the other way.  In addition, the district court did not clearly err by imposing a special assessment; the defendant was not indigent because he previously failed to disclose that he owned real estate.  Finally, as to restitution, the district court properly relied on a clinical psychologist’s testimony about estimated therapy costs, but the district court erred by ordering the defendants to pay more in living expenses than what the victim herself admitted was an overestimate.

Thursday, August 25, 2022

Ifediba: Affirming Healthcare Fraud Convictions and Sentences

In United States v. Ifediba, No. 20-13218 (Aug. 25, 2022) (Jill Pryor, Branch, Ed Carnes), the Court affirmed the defendants' convictions and sentences.   

Mr. Ifediba, a doctor, operated a clinic called CCMC, and employed his sister, Ms. Ozuligbo, as a nurse there.  Mr. Ifediba was alleged to have been running a "pill mill" to distribute controlled substances to patients who had no medical need for them, as well as running an allergy-fraud scheme.  Mr. Ifediba and Ms. Ozuligbo were indicted on substantive counts of health care fraud, conspiracy to commit health care fraud, money laundering of the clinic's unlawful proceeds, and conspiracy to money launder.  Mr. Ifediba was also indicted for unlawfully distributing controlled substances for no legitimate medical purpose and for operating CCMC as a "pill mill."  

On appeal, Mr. Ifediba first challenged the district court's exclusion of his evidence of good care he provided his patients to prove that his medical practice was legitimate.  The Court agreed with the district court that such evidence was improper character evidence because evidence of good conduct is not admissible to negate criminal intent.  The Court also held that the exclusion of such evidence did not violate Mr. Ifediba's constitutional right to present a defense.      

Next, he challenged the district court's decision not to question all jurors individually after dismissing an alternate juror upon learning that the alternate had independently researched the case outside of court.  The Court found that the district court acted within its discretion in addressing the juror misconduct and then instructing the jury collectively.  

Third, he challenged the sufficiency of the evidence supporting his substantive health care fraud convictions that were based upon evidence from medical records rather than patient testimony.  The Court held that patient records were sufficient to support Mr. Ifediba's convictions for substantive health care fraud.  Documentary evidence alone can be sufficient to establish the elements of an offense.   

Finally, he challenged his sentence by disputing the district court's drug-quantity calculation on which the sentence was based.  The PSI calculated the quantity of illegal substances attributable to Mr. Ifediba to be between 30,000 and 90,000 kilograms.  The estimate came from an analysis of Alabama's Prescription Drug Monitoring Program ("PDMP") data spanning the charged conspiracy period.  Mr. Ifediba objected, arguing that the court should derive the drug quantity using only the prescriptions admitted into evidence at trial that the jury found to be unlawful--which would have totaled between 1,000 and 3,000 kilograms.  The Court disagreed with Mr. Ifediba and found his sentence to be procedurally reasonable.       

Ms. Ozuligbo separately appealed the court's exclusion of her cultural-defense evidence proffered to demonstrate that Nigerian cultural norms required her to obey her older brother.  The Court agreed with the district court that such evidence was irrelevant.    

Monday, August 22, 2022

Utsick: Affirming Sentence and Order of Restitution

In United States v. Utsick, No. 16-16505 (Aug. 22, 2022) (Newsom, Marcus, Covington (M.D. Fla.)), the Court affirmed Mr. Utsick's sentence and order of restitution.   

Mr. Utsick was charged with nine counts of mail fraud, in violation of 18 U.S.C. § 1341 based upon an earlier civil action brought by the SEC regarding securities fraud.  Before authorities could arrest him, however, he fled to Brazil.  The United States filed an extradition request, which Brazil granted.  Mr. Utsick then returned to the United States on the eve of his trial.  He entered into a plea agreement--agreeing to plead guilty to one count of wire fraud--and the court sentenced him to 220 months' imprisonment and ordered him to pay $169,177,338 in restitution.  On appeal, he challenged his sentence and order of restitution as violative of the extradition treaty between the United States and Brazil as well as the voluntariness of his guilty plea.  

First, Mr. Utsick argued that his sentence and restitution order violated the terms of his extradition order, the extradition treaty between the United States and Brazil, and the international law doctrine known as the "rule of specialty."  He claimed that all three barred the district court from relying on any conduct prior to November 30, 2005 to determine his sentence.  The Court was unpersuaded.  It noted that when sentencing after extradition, the rule of specialty does not restrict the scope of proof of other crimes that may be considered in the sentencing process and does not control the evidentiary procedural rules of American Courts.  While the rule of specialty bars proof of other crimes in order to exact punishment for those other crimes, it does not bar proof of other crimes as a matter germane to the determination of punishment for the extradited crime.  The Court also found no plain error in the restitution order.  

Second, the Court was also unpersuaded by Mr. Utsick's argument that he entered his guilty plea without a clear understanding of the parameters of his conviction and without the requisite mental competence to knowingly enter into the plea.