Bailey: Child Pornography Possession Indictment Sufficient

In U.S. v. Bailey, No. 14-10174 (Feb. 24, 2015), the Court rejected a challenge to the clarity of an indictment that charged sexual exploitation of a child, and possession of child pornography. Noting that challenges to the sufficiency of an indictment are reviewed only for “actual prejudice,” when raised, as here, for the first time on appeal, the Court pointed out that Bailey knew precisely which of four video images were charged in the first four counts of the indictment. The Court also rejected a challenge to a count of the indictment that failed to identify the pornographic image at issue. The Court noted that the indictment identified the computer and videotapes on which he had child pornography. Thus, Bailey had “ample notice” of the images. The Court also rejected the argument that a violation of 18 U.S.C. § 2251(a) requires that a minor actually masturbate in the visual depiction, pointing out that this statute merely requires that the defendant “induce” or “entice” the minor; “it does not require the effort to be successful.”

Kopp: Venue for failing to register as sex offender also lies in state where travel began

In U.S. v. Kopp, No. 14-12408 (Feb. 18, 2015), the Court affirmed (1) the denial of a motion to dismiss an indictment for improper venue, and (2) the sentence imposed following the revocation of supervised release. Kopp moved from Georgia to Florida, where he failed to register as a sex offender. He was convicted of this offense in Georgia, where he preserved the argument that venue should have been in Florida, not in Georgia. Rejecting this argument, the Court pointed out that venue for this offense could be in “any district” where the crime was “begun, continued, or completed.” Here, Kopp began his crime in Georgia, because his interstate journey started there. The Court also affirmed the imposition of a six-month upward variance on Kopp’s sentence for subsequently violating his supervised release, pointing to Kopp’s “long and violent history of crime.”

Roberts: Affirming Convictions and Sentences in Medicare Fraud

In U.S. v. Roberts, No. 12-16056 (Feb. 17, 2015), the Court affirmed convictions and sentences arising out of a multi-million dollar Medicare fraud that involved using chronic substance abusers, elderly patients with dementia, Haitian patients seeking immigration benefits, and paid patients to obtain payments from Medicare for purported mental health services. The Court rejected a number of challenges to the convictions, including the argument that the prosecutor’s allusion in closing argument to the possibility that defense counsel were aware of their clients’ guilt. The Court noted that the district court sustained an objection to this statement and gave a curative instruction. Turning to sentencing, the Court affirmed the imposition of the “mass marketing” two-level sentence enhancement of U.S.S.G. § 2B1.1(b)(2)(A)(ii). The Court noted that recruiters repeatedly targeted new patient populations to bring them to their fraudulent clinic for treatment. The Court also affirmed the imposition of the “conscious or reckless risk of death or serious bodily injury” under U.S.S.G. § 2B1.1(b)(13)(A). The Court noted that the clinic admitted elderly patients with dementia even though the clinic was not equipped to meet these patients’ needs. The Court further affirmed the imposition of the “vulnerable victim” enhancement under U.S.S.G. § 3A1.1(b)(1). The Court noted that the victims included elderly patients and substance abusers, who were vulnerable because of their need for treatment. The Court affirmed the imposition of an upward variance based on the district court’s finding that one defendant’s criminal history of I understated the seriousness of his criminal history. Finally, the Court rejected a challenge to the $9 million restitution award, affirming the district court’s finding that the clinic did not render any proper services to Medicare that could offset the restitution amount.

Holt: Single conspiracy had a "common goal"

In U.S. v. Holt, No. 13-10453 (Jan. 30, 2015), the Court affirmed convictions and sentences of defendants charged with conspiracy to distribute oxycodone and cocaine. The Court rejected the defendants’ argument that evidence should be suppressed based on an unreasonable length of time elapsed between traffic stops and the deployment of drug dogs, finding that 27 minutes for one stop and only a few minutes for another was not unreasonable. The Court also found that the police had reasonable, articulable suspicions that Hold was engaged in drug trafficking. The Court rejected the argument that the trial court’s admission in evidence of pre-indictment narcotics distribution was a “constructive amendment” of the indictment. The Court noted that this evidence helped explain why one defendant helped the others distribute drugs, and not broaden the possible bases for conviction. The Court also rejected the argument that the government proved multiple conspiracies, not a single conspiracy, finding that the defendants “operated toward a common goal to distribute cocaine and oxycodone in South Florida and Boston," and involved “a significant overlap of participants.” The Court further noted that the defendants did not demonstrate “substantial prejudice” from any variance, as evidenced by the fact that the jury returned different verdicts as to different defendants. The Court found no error in the district court’s admission of expert testimony by a DEA agent regarding the meanings of coded language used by the defendants in intercepted communications. The Court noted that the testimony helped thejury interpret the meaning of words “more accurately than a lay person.” The Court found no abuse of discretion in the trial court’s denial of a mid-trial motion for a recess to prepare to testify and obtain witnesses. The trial had been going on for weeks, and the defendant had received multiple warnings to be ready to present her case. Further, the defendant had shown a lack of diligence in failing to subpoena witnesses.

Duperval: Affirming Foreign Corrupt Practices Act Conviction and 108 month sentence

In U.S. v. Duperval, No. 12-13009 (Feb. 9, 2015), the Court affirmed convictions and a 108-month sentence on a defendant convicted of receiving bribes in exchange for favors from his Haiti telecommunications company, Teleco. The Court found no abuse of discretion in the district court’s refusal to interview jurors individually about mid-trial publicity. The Court noted that the district court took actions to ensure the jurors were not exposed to publicity. The Court recognized that it would have been “preferable” to question a specific juror individually after she submitted a note about her awareness of corruption in Haiti, but this was not an abuse of discretion because the earlier media coverage was not related to the case. The Court rejected the argument that Teleco was not an “instrumentality” for purposes of the Foreign Corrupt Practices Act, pointing out that the government granted Teleco a monopoly over telecommunication services. The Court also rejected the argument that the jury should have been instructed to consider whether Duperval was merely performing a “routine governmental function,” noting that he was administering multi-million dollar contracts, which is not “routine.” The Court rejected the argument that the government interfered with a witness when it obtained a second declaration from this witness, finding that this witness merely “clarified” his earlier declaration. Turning to sentencing, the district court rejected the challenge to the application a two-level enhancement for a substantial part of a fraudulent scheme being committed from outside the United States. The Court noted that the relevant conduct for this offense related not to the money laundering that occurred only in the United States, but to the “underlying offense” of wire fraud. The Court further rejected the challenge to the “manager” enhancement, pointing out that Duperval managed another participant, and that there were five or more participants in the scheme. The Court rejected the challenge to the “obstruction of justice” enhancement, finding that Duperval “perjured himself” when he testified at trial. Finally, the Court found that the 108-month sentence was “substantively reasonable,” finding Duperval’s comparisons to other defendants to be “inapt.”

Estrada: Wantonly under Fla. St. 790.19 is not crime of violence

In U.S. v. Estrada, No. 14-10230 (Feb. 6, 2015), the Court, citing its recent decision in U.S. v. Estrella, 758 F.3d 1239 (11th Cir. 2014), held that the 16-level enhancement of U.S.S.G. § 2L1.2(b)(1)(A)(ii), for being convicted of illegal re-entry after committing a “crime of violence,” did not apply to a defendant with a prior conviction for violating Florida Statute § 790.19, where the Shepard documents did not indicate whether the prior crime involved a crime against the person or against property. The documents indicated that Estrada “wantonly or maliciously” threw a deadly missile at an occupied vehicle. Because “wantonly” refers to property and “maliciously” refers to a person, the Court accepted the government’s concession that the district court erred in concluding that this prior conviction was for a crime of violence offense. In light of the defendant’s concession in the trial court that the 8-level enhancement of § 2L1.2(b)(1)(C) applied, the Court remanded the case with an instruction that the district court impose this enhancement. However, the Court noted that at resentencing, “either party is free to advocate for a departure or variance.”

Rivers: Credibility of declarant, not witness, determines Rule 807 admissibility

In Rivers v. U.S., No. 12-15208 (Feb. 5, 2015), the Court agreed with the habeas petitioner that the district court erroneously admitted testimony under Fed. R. Evid. 807’s residual exception to the hearsay rule, but affirmed the denial of habeas relief because, even after excising the improperly admitted testimony, Rivers failed to prove his claims. At the habeas hearing, the district court admitted hearsay testimony by a co-defendant’s lawyer about a meeting where he had communicated with Rivers about plea agreements, contrary to Rivers’ claim that his lawyer failed to discuss this with him. The district court, over objection, admitted this testimony as having “circumstantial guarantees of trustworthiness.” The Court noted that the inquiry is not the trustworthiness of the witness reciting the hearsay statements in court, but of the declarant who originally made the statements. The Court found that statements made by an attorney to counsel for a codefendant are not inherently trustworthy simply because they are made by a lawyer during the course of representing a criminal defendant. The Court also noted the absence of corroborating evidence. The Court, however, found the error to be harmless, because Rivers’ story was not credible, in light of evidence that Rivers was aware of the evidence against him, and of the terms of a plea offer.

Barber: Driver had "apparent authority" over passenger's bag

In U.S. v. Barber, No. 13-14935 (Feb. 3, 2015), the Court held that a police search of a cover where officers discovered a gun in a bag placed in the passenger-side floorboard was valid, because the driver had “apparent authority” to consent to the search. Police stopped a vehicle in which Barber was a passenger. They arrested the driver, Robinson, for driving with a suspended licence. The driver consented to a search of the car. The police found a bag on the passenger-side floorboard, which contained a gun. The Court held that the passenger, Barber, had Fourth Amendment standing to challenge the search of his bag. “Not only was Barber present during the search of Robinson’s car, but the bag was at his feet when the officers stopped the car.” Barber had standing to contest the search of the bag even if he lacked standing to challenge the search of the car. Robinson had apparent authority to consent to the search of the bag. “The bag’s placement on the passenger-side floorboard, within easy reach of Robinson, coupled with Barber’s silence during the search, made it reasonable to believe that Robinson had common authority over the bag.” The Court noted that no one told the officer that the bag did not belong to Robinson.

Johnson: "Actively Pursued" merely requires leads already in police possession

In U.S. v. Johnson, No. 13-15583 (Feb. 2, 2015), the Court held that the inevitable discovery exception to the exclusionary rule applied when a police officer illegally discovered evidence that he would have discovered in a later inventory search. After pulling over Johnson and his vehicle, a police officer learned that Johnson’s driver’s licence was suspended. The officer learned that the vehicle’s owner was deceased. Thus, the officer had taken steps toward establishing that the vehicle needed to be impounded. The officer then searched the vehicle, illegally, and found a firearm. After arresting Johnson, the officer conducted an inventory search. The Court noted that, in order for the “inevitable discovery” exception to apply to the later inventory search, the government must establish that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct. The Court explained that “actively pursued” did not mean that the police had already planned the particular search that would obtain the evidence. Rather, the police would have discovered the evidence by virtue of ordinary investigations of evidence or leads already in their possession. The purpose of the requirement of active pursuit is to exclude evidence that was not being sought in any fashion. Here, the officer’s investigation had taken multiple steps toward establishing that the truck needed to be impounded, that is, that an inventory search would be necessary.

Sosa: Affirming Health Care Fraud Convictions and Sentences

In U.S. v. Sosa, No. 13-13171 (Feb. 2, 2015), the Court affirmed the convictions and sentences of defendants charged with health care fraud. The Court rejected all challenges to the sufficiency of the evidence, citing evidence that Sosa personally transported fake patients to the clinic in which he had invested, to purportedly obtain injections for which the clinic was reimbursed by Medicare. The Court also rejected the plain error challenges to the prosecutor’s vouching and other statements during closing argument, finding the statements, taken in context, not to create reversible error. The Court acknowledged that the prosecutor’s statement in closing argument that “I did my job” was error, but harmless in light of the evidence of guilt. Turning to the sentence, the Court affirmed the imposition of a “managerial role” enhancement, pointing to evidence that Sosa drove patients to the clinic. The Court also rejected Sosa’s challenge to the “sophisticated means” enhancement, finding that patients were paid in a “surreptitious manner,” and injected the patients with inexpensive products.