Oscar: No Abuse of Discretion in Seating Alternate Jurors After Deliberations Began

In United States v. Oscar, No. 14-14584 (Dec. 20, 2017) (Hull, Jordan, Boggs), the Court affirmed two defendant's drugs/firearm convictions but vacated one of their ACCA sentences.

First, the Court concluded that the district court's answer to a jury note misstated the law of possession by allowing the jury to convict him of constructive or joint possession without having knowledge of the firearm.  The district court's initial instruction accurately explained the law of actual/constructive possession, and the supplemental instruction must be viewed in context.  Furthermore, the court's instruction of constructive possession -- as when the defendant has both the power and intention to take control of the firearm -- did not remove the knowledge requirement, because a defendant must necessarily have knowledge of a firearm in order to have an intention to take control over it later.

Second, the Court rejected a defendant's argument that the government committed prosecutorial misconduct by introducing evidence that another drug dealer was deceased.  That fact was relevant, the Court concluded, to explain why he was not charged or testifying at trial, even though he facilitated all of the defendants' crimes.  And any prejudice was mitigated by a curative instruction making clear that the defendants had nothing to do with the death.  The Court also found no misconduct by characterizing a defense witness as a liar given her inconsistent testimony.

Third, the Court rejected the defendants' arguments that the court erred in giving an Allen charge, dismissing a juror, and seating an alternate juror.  The Court found that the Allen charge was not coercive in substance because it was the pattern instruction; nor was its timing coercive, because it was given in response to a juror's comments indicating that the deliberations had stalled.  That the deliberations continued for several more days, and the jury ultimately acquitted one defendant of two counts, reflects its lack of coercive effect  The Court also found no abuse of discretion in dismissing a juror because, while courts should be cautious about doing so, this juror stated that she was biased, criticized the system, became emotional, and admitted that she could not follow the law.  Last, the Court concluded that the court did not err by replacing that juror with an alternate instead of allowing deliberations to proceed with 11 jurors.  Although the jury had already been deliberating for two days, and substitution after deliberations is not favored, the Court concluded that there was no abuse of discretion in light of the court's initial instructions and post-substitution instruction to begin deliberations anew.  In addition, the newly constituted jury deliberated for nine more hours and acquitted a defendant of two counts, reflecting a proper deliberation, and the court actually substituted two alternate jurors which theoretically may have decreased the chances of conviction.

Fourth, the Court found no abuse of discretion in denying one defendant's motion to sever because all the defendants shared a criminal network, and any potential spillover effect regarding drug crimes was mitigated by the court's two cautionary instructions, and the undercover agent's testimony that this defendant did not try to sell him drugs.  And the fact that the jury convicted one defendant of some crimes but not others reflects the jury's individual examination of each crime.

Finally, the Court vacated one of the defendant's ACCA sentence because it was based on Florida burglary, which is not a violent felony under circuit precedent.

Castaneda-Pozo: Upholding Substantial Financial Hardship Enhancement Where Bank Fraud Made Victims Insecure in Basic Life Necessities

In United States v. Castaneda-Pozo, No. 16-16031 (Dec. 19, 2017) (per curiam), the Court upheld two challenged sentencing enhancements in a bank fraud conspiracy.

First, the Court concluded that the district court did not clearly err by finding that the defendant was responsible for the scheme's entire intended loss amount.  The defendant testified that he was not aware of the scheme's relevant conduct, but the district court credited the contrary testimony of his co-conspirators.  Even though those co-conspirators had previously lied to investigators, the district court was free to credit their testimony over the defendant's.

Second, the Court concluded that the district court did not clearly err by finding that five or more victims of the scheme suffered substantial hardship under Amendment 792.  Although the Court had never before interpreted that provision, it relied on opinions from the Seventh and Eighth Circuits focusing on the economic situation of the victim.  In this case, several of the victims were required to repay $400-800 in rent payments, and because the stolen checks were submitted near the rent deadline, some of the victims had to borrow money to pay the rent and two were threatened with eviction.  The Court disagreed with the defendant that this amount to mere "hardship" rather than "substantial hardship."  Although each victim's economic loss might not seem great, the defendant's actions made them insecure in life's basic necessities, which constituted substantial hardship.

Johnson: District Courts Must Consider 3553(a) Factors When Denying Motions for Early Termination of Supervised Release

In United States v. Johnson, No. 17-12577 (Dec. 15, 2017) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court concluded that the district court abused its discretion by summarily denying the defendant's motion for early termination of supervised release under 18 U.S.C. 3583(e)(1).

Relying on its 3582(c)(2) precedents, the Court made clear that the district court must consider the relevant 3553(a) factors when denying a 3583(e)(1) motion, and the record must reflect that the district court actually considered those factors in order to permit meaningful appellate review.  In that case, the Court concluded that the record was devoid of any such consideration, because the court summarily denied the motion without explanation.  In the motion, he explained that, after obtaining Johnson relief, he had over-served by 11 years and had successfully re-integrated himself into the community in the year since his release.  The Court rejected the government's speculative argument that the district court implicitly considered the factors because it had presided over the defendant's trial/sentencing more than 20 years earlier.  Nor could any such consideration be inferred from the defendant's 3583(e)(1) motion, because it made no mention of the factors and the government was not ordered to respond.  Accordingly, the Court found an abuse of discretion, and vacated and remanded for further consideration.

Nerey: Affirming Medicare Fraud Convictions and 60-Month Sentence Over Various Challenges

In United States v. Nerey, No. 16-13614 (Dec. 12, 2017) (Hull, Jordan, Boggs), the Court affirmed the convictions and sentence in a Medicare fraud case.

First, the Court found the evidence sufficient to support his convictions for conspiracy to defraud the US and by receiving kickbacks.  After recounting the "overwhelming" evidence against him, the Court rejected his argument that the evidence was insufficient because four co-conspirators were cooperating witnesses with the government.  Their testimony, even if not corroborated, was sufficient to support a conviction.  And, in any event, it was corroborated by a substantial paper trail and forensic analysis of bank accounts.

Second, the Court rejected the defendant's argument that the prosecutor engaged in misconduct that shifted the burden of proof.  He identified five instances of alleged misconduct, but only one incident -- where the prosecutor told the jury at closing that the defendant "can't explain" an FBI analyst's chart -- potentially shifted the burden.  However, the court sustained an objection to it, provided multiple curative instructions during closing, and the government presented overwhelming evidence of guilt.

Third, the Court concluded that the district court did not abuse its discretion by denying the defendant's motion to interview a juror.  When the jury returned its verdict, a juror wore a T-shirt stating "American Greed," which was also the name of a TV program relating to white collar crime.  The defendant argued that the shirt, which was promoted and sold on the internet with the idea that you can "show the world that you're no sucker," demonstrated his intent to make a statement and influence his fellow jurors based on an outside influence.  The Court agreed that an interview was not required because the defendant failed to lay out the questions he sought to ask or establish that the shirt was in fact linked with the TV program.  And, even if there was a connection, wearing that shirt did not prove his inability to serve as an impartial juror or follow the court's instructions.

Fourth, the Court upheld the admission of Rule 404(b) evidence.  The Court found that some evidence of the defendant's involvement with other home health care agencies was inextricably intertwined with the evidence in this case -- showing how he became involved in the agencies and why they trusted him -- and thus was not subject to Rule 404(b).  Additional evidence of the defendant's involvement as a patient recruiter was relevant to the broader conspiracy and thus relevant.  And evidence of a phone call where the defendant discussed "breaking [a man's] head" if he was a confidential informant was admissible because it went to his specific intent to engage in the conspiracy.  In any event, the Court found any error harmless in light of the overwhelming evidence of his guilt.

Finally, as to his 60-month sentence, the Court rejected his argument that the court miscalculated the Guidelines by making him responsible for the entire amount of the improper benefit conferred on the home health care agencies, which was $2.3 million.  He argued that he should be responsible only for the $250K he received in kickbacks, not for the amount fraudulently billed for the entire conspiracy.  Applying clear error, the Court rejected that argument because the defendant was significantly involved in the overall conspiracy, and his kickbacks were made possible by the conduct of his co-conspirators, which was reasonably foreseeable.