Barton: Rejecting Daubert Challenge to Expert Methodology for DNA Testing

In United States v. Barton, No. 17-10559 (Dec. 6, 2018) (Marcus, Newsom, Anderson), the Court affirmed the defendant's felon in possession conviction.

The sole issue on appeal was whether the district court abused its discretion under Daubert by admitting expert testimony concerning DNA evidence.  Focusing on the deferential standard of review, the Court rejected the defendant's arguments that the expert's methodology was unreliable because of the low quantity DNA mixture present and the absence of appropriate validation testing and interpretive thresholds for complex mixtures.  The Court found that the defendant's arguments went to weight rather than admissibility.  And, although the defendant identified newly-available scientific journals that bore on the reliability of the expert's methodology, the Court declined to consider them, because they were not included in the district court and were not a part of the record on appeal.  Where newly-discovered evidence undermines the validity of the conviction, the defendant may seek a new trial in the district court; but an appellate court may not consider that evidence for the first time on appeal and make factual findings.  Finally, the court held that the admission of the DNA evidence was harmless in any event because the other evidence of guilt was overwhelming.

St. Hubert: Hobbs Act Robbery and Attempted Hobbs Act Robbery are Crimes of Violence Under Both Clauses in 924(c)

In United States v. St.Hubert, No. 16-10874 (Nov. 15, 2018) (Hull, Marcus, Anderson), the Court sua sponte modified its earlier opinion in part and applied the recent en banc decision in Ovalles.

The Court reinstated without change its earlier analysis rejecting the government's argument that the defendant's guilty plea waived his argument that his convictions were not crimes of violence.  It also reinstated without change its holding that Hobbs Act robbery qualified as a crime of violence under the elements clause in 924(c)(3)(A). 

Applying Ovalles' conduct-based approach, the Court held that the defendant's Hobbs Act robbery conviction satisfied the residual clause in 924(c)(3)(B).  Reviewing the facts admitted at the plea hearing -- namely, brandishing a firearm and threatening to shoot store employees during a robbery -- the Court concluded that his offense involved a substantial risk that physical force may have been used against a person or property.

The Court also held that the defendant's attempted Hobbs Act robbery conviction was a crime of violence under both the elements clause and residual clause in 924(c).  As to the residual clause, the Court again reviewed the facts admitted at the plea hearing -- which involved brandishing a firearm, holding it against one employee's side while directing another to open the safe, but fleeing before he could take any money -- and concluded that this conduct involved a substantial risk that physical force might be used against a person or property.  Alternatively, the Court reiterated and slightly modified its holding that attempted Hobbs Act robbery satisfied the elements clause because it necessarily involves the attempted use of force or threatened force.

In re Garrett: Johnson and Dimaya Do Not Authorize Successive 2255 Motions in 924(c) Cases

In In reGarrett, No. 18-1380 (Nov. 2, 2018) (Wiliam Pryor, Hul, Julie Carnes), the Court denied an application for authorization to file a second or successive 2255 motion based on Johnson and Dimaya.

Given the en banc Court's decision in Ovalles that 924(c)(3)(B) is not unconstitutionally vague after Dimaya, the Court held that the applicant failed to satisfy the gatekeeping crtieria in 2255(h), because there was no new rule of constitutional law, made retroactive by the Supreme Court, that applied to his claim.  The Court made clear that its ruling would apply to all second or successive applications involving a 924(c) claim based on Johnson and Dimaya.

Hernandez: Rules of Evidence Inapplicable in 851 Proceeding

In United States v. Hernandez, No. 17-15666 (Oct. 26, 2018) (Wilson, William Pryor, Anderson), the Court affirmed the defendant's 240-month mandatory minimum drug-related sentence under 21 U.S.C. 841(b).

First, the Court rejected the defendant's argument that the Rule of Evidence applied in an 851 proceeding to determine whether the defendant has a prior conviction triggering the mandatory  minimum.  Rather, that proceeding was a miscellaneous proceeding akin to a sentencing hearing, in which the Rules did not necessarily apply.  As a result, it is up to the district court whether to apply the Rules or instead to determine whether the evidence satisfies a "sufficient indicia of reliability" standard, which the evidence in this case did.

Second, the Court concluded that the district court committed plain error by employing a preponderance standard instead of the reasonable-doubt standard in the 851 proceeding.  However, the Court found that this error did not affect the defendant's substantial rights, because the evidence satisfied the reasonable-doubt standard.

Jones: Florida Second-Degree Murder is a Violent Felony under the ACCA's Elements Clause

In United States v. Jones, No. 17-12240 (Oct. 25, 2018) (Marcus, Tjoflat, Newsom), the Court held that Florida second-degree murder is a violent felony under the elements clause of the Armed Career Criminal Act.

The Court rejected the defendant's primary argument that the use of poison did not constitute the use of physical force.  Prior circuit precedent had rejected that exact argument in the context of Florida first-degree murder.  And the only difference between first and second degree murder pertained to the mental state, which the Court found made no difference to the elements-clause analysis. 

Carthen: Rule 608(b) Prohibits Impeachment by Contradiction, and Mandatory 924(c) Sentences Do not Violate Eighth Amendment

In United States v. Carthen, No. 16-17653 (Oct. 25, 2018) (Martin, William Pryor, Baldock), the Court affirmed the defendants' robbery and firearms convictions and sentences over multiple challenges.

First, the Court found sufficient evidence that one of the defendants conspired to commit a robbery and voluntarily participated in the robbery with a firearm.

Second, the Court found no plain error in admitting statements by the defendants' co-conspirator under the hearsay exception in 801(d)(2)(E).  The Court ruled that, when determining whether a conspiracy existed and whether the statement was made during the course of it, the court may rely on information provided by the co-conspirator as well as independent external evidence.  The Court found enough evidence of a conspiracy to satisfy the exception.

Third, the Court found no abuse of discretion under Rule 608(b) by excluding the testimony of two defense witnesses designed to show that the co-conspirator had lied in other judicial proceedings.  The Court reasoned that the Rule prohibited that evidence because it was designed only to make a general showing that the witness had a dishonest character.

Fourth, the Court held that the 924(c) sentencing scheme, resulting in a mandatory 57-term for the defendants here, did not violate the Eighth Amendment.  Although that sentence was 5-6 times what the guideline range would have been, the Court had upheld a mandatory sentence of 182 years in a prior 924(c) case, which was over 10 times the guideline range.  Because the defendant could not distinguish that prior case, the Court found that he failed to make a threshold showing of disproportionality.

Judge William Pryor concurred in full, but wrote separately to opine that the Court's Rule 608(b) precedents categorically prohibiting impeachment by contradiction were contrary to the current version of the Rule and the position taken by the majority of the other circuits.  He argued that, in an appropriate case where the issue was presented, the Court should hold that those precedents had been abrogated by the 2003 amendment to the Rule.

Garcia: Plainly Unconstitutional Resumption of Trial Absent Defense Counsel and Defendant Did not Require Reversal

In United States v. Garcia, No. 14-11845 (Oct. 19, 2018) (Marcus, Wilson, Graham (S.D. Ohio)), the Court affirmed the defendant's tax-related convictions.

The primary issue was whether reversal was required because the district judge resumed trial without the presence of either the defendant or defense counsel for 3 to 10 minutes, during which time the government introduced inculpatory testimony.  The parties agreed that this was obviously constitutional error, and, although the Court found it troubling, the Court held that the error did not warrant reversal because the defendant could not show prejudice.  Bound by the en banc decision in Roy, the Court determined that this was trial error, rather than structural error, and it therefore could not presume prejudice.  The Court also found that the plain error, rather than the harmless error, standard of review applied, because the defendant had numerous opportunities to contemporaneously object to the error and failed to do so.  And, while the result might have been different had the government bore the burden to show harmlessness beyond a reasonable doubt, the Court concluded that the defendant could not meet her burden show that the plain error affected her substantial rights in light of: the cumulative nature and brevity of the missed testimony, its irrelevance to the most hotly contested issued at trial, the strength of the government's case, and robust cross examination by the defense.

The Court rejected the defendant's remaining arguments, all of which were unpreserved as well.  First, it found that the indictment included all of the elements of a Klein conspiracy under 18 U.S.C. 371, and it was therefore legally sufficient on that count.  Second, although the court committed plain error by instructing the jury on an attempt theory that was not charged, that error did not affect her substantial rights because it was unlikely that the jury convicted her on such a theory.  Third, the defendant could not show that any erroneous instruction on the Klein conspiracy affected her substantial rights, especially given that the jury convicted her on the underlying substantive counts.  Fourth, the defendant invited the district court's failure to give a multiple objects/unanamity instruction for the conspiracy charge.  Fifth, the court properly instructed the jury on the "material" element of the substantive tax counts.  And, lastly, the court properly instructed the jury on "aiding and abetting," observing that the Supreme Court's decision in Rosemond clarified rather than changed the law on that point and did not render the pattern instruction incorrect.

Judge Wilson concurred.  He reiterated his dissenting view in Roy that the error here should be deemed structural, which would have precluded (rather than encouraged) the district judge from continuing his unconstitutional courtroom policies, but he recognized that Roy foreclosed that conclusion.  He disagreed with the majority, however, that plain error rather than harmless error review applied.  He nonetheless concluded that the government had met its burden to show that the error was harmless beyond a reasonable doubt.

Ovalles II: Attempted Carjacking is a Crime of Violence Under 924(c)(3)(A)

In Ovalles v. United States, No. 17-1072 (Oct. 9, 2018) (Tjoflat, William Pryor, Hull) (per curiam), the Court held that attempted carjacking is a crime of violence under the elements clause of 924(c)(3)(A).

Although the en banc Court held that Ovalles' attempted carjacking conviction satisfied the residual clause of 924(c)(3)(B) under a fact-based approach, the en banc Court remanded the case back to the panel.  The panel reinstated its original, alternative holding that attempted carjacking satisfies the elements clause under the categorical approach.  The Court reiterated its prior precedents holding that carjacking, including by intimidation, is a crime of violence, and reiterating its prior precedent on the analogous bank robbery statute.  The Court then explained that the attempt element did not result in a different conclusion because, under federal law, the defendant must have the specific intent to commit each element of the substantive offense and must take a substantive step towards committing that offense.  The Court reasoned that when an offense, if completed, satisfies the elements clause, then so does an attempt to commit that same offense.

Ovalles: 924(c)(3)(B) Requires a Conduct-Based Approach and is not Unconstitutionally Vague

In Ovalles v. United States, No. 17-10172 (Oct. 4, 2018) (en banc) (Newsom, joined by Ed Carnes, Tjoflat, Marcus, William Pryor, Rosenbaum, Branch, Hull), the Court held that the residual clause in 924(c)(3)(B) can plausibly be read to require a conduct-based -- as opposed to a categorical -- approach; it must be so read in order to avoid the constitutional vagueness problem that doomed 16(b) in Dimaya; and that clause is therefore not unconstitutionally vague.  (Note: Shortly before the opinion came out today, the government filed a cert. petition in cases out of the Fifth and Tenth Circuits asking the Supreme Court to review this issue, so today's decision will not likely be the last word.).

Judge William Pryor, joined by Judges Ed Carnes, Tjoflat, Newsom, and Branch, concurred to express the view that Congress should re-write recidivist statutes like the ACCA to restore the common-law role of the jury by requiring the government to prove to a jury that the defendant committed a prior conviction, and that the facts of the prior conviction involved the use of physical force.

Judge Martin dissented, explaining how the majority's decision was but the latest in a long line of decisions limiting the effect of Johnson.  Her "review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise." 

Judge Jill Pryor, joined by Judges Wilson, Martin, and Jordan, dissented, arguing that the residual clause in 924(c)(3)(B) was unconstitutional in light of Dimaya, which struck down the identical statute in 16(b), and the canon of constitutional avoidance could not save it because its text required application of the categorical approach.

Randolph: Successive 2255 Motion Based on Johnson Properly Dismissed Where Initial 2255 Motion Presented Johnson Claim

In Randolph v. United States, No. 17-10620 (Sept. 25, 2018) (Ed Carnes, Branch, Gayles), the Court affirmed the dismissal of a successive 2255 motion based on Johnson.

The Court ruled that dismissal was required under 2244(b)(1) because the movant raised a Johnson claim in his initial 2255 motion.  That also meant that the rule announced in Johnson was not "previously unavailable" to him, a requirement for successive motions.  That was so even though his first 2255 motion was filed before the Supreme Court declared Johnson retroactive in Welch.  The Court also ruled that, in the successive proceeding, the movant could not use Welch to challenge the correctness of the dismissal of his initial 2255 motion on procedural-default grounds.  Lastly, the Court rejected the movant's argument that it owed deference to its order authorizing the successive 2255 motion.

Phifer: Vacating Ethylone Conviction Because DEA Regulations Ambiguous

In United States v. Phifer, No. 17-10397 (Sept. 21, 2018) (Rosenbaum, Jordan, Dubina), the Court vacated the defendant's conviction for possession with intent to distribute ethylone.

The issue on appeal was whether ethylone was a "positional isomer" of butylone.  After a "crash course in organic chemistry," the Court concluded that the DEA's regulatory of definition of "positional isomer" did not unambiguously apply.  And, because this was a criminal case, the Court refused to defer to the DEA's interpretation of its own regulation.  The Court instructed the district court to conduct an evidentiary hearing on remand to determine the scientific meaning of "positional isomer," as used in the regulation.  The Court rejected the defendant's argument that re-trying him would violate double jeopardy.

Judge Jordan concurred, expressing concerns that the statute might be vague as applied to the defendant.

Oliva: No Speedy Trial Violation Where 23-Month Delay Between Indictment and Arrest Was Due to Government Negligence

In United States v. Oliva, No. 17-12091 (Sept. 18, 2018) (Wilson, Newsom, Vinson) (per curiam), the Court held that a 23-month delay between indictment and arrest, due to the government's negligence, did not violate the defendants' right to a speedy trial under the Sixth Amendment.

Applying Barker v. Wingo, the Court concluded defendant was required to prove actual prejudice because the first two Barker factors--the length of delay and the reason for delay--did not "weigh heavily" against the government.  The Court found no clear error in the district court's finding that the government's negligence was neither purposeful nor undertaken in bad faith, and the Court rejected the defendants' argument that the case law did not require such conduct.  The Court also found that, unlike the 2.5 year delay in a prior case involving a simple investigation, the 23-month delay for the more complex investigation here was not "inordinate."  The Court also found that the negligence, while worrisome, was not as egregious as in past cases because the government agent believed that another agency was responsible for the arrest, he was serving as a solo investigator for the first time and was unfamiliar with procedure, he quickly effectuated the arrest once he realized his mistake, and the prosecutor who secured the indictment left the office and was not replaced for more than a year.  Thus, when comparing the length of the delay and the reason for it with past cases, the Court concluded that those two factors did not weight heavily against the government, and the defendants were therefore required to prove actual prejudice (which they admittedly could not).

Williams: Remanding for Evidentiary Hearing on Trial Counsel's Conflict of Interest

In United States v. Williams, No. 15-12130 (Sept. 4, 2018) (Jordan, Tjoflat, Huck), the Court remanded the case to the district court to make factual determinations about whether trial counsel's conflict of interest had an adverse effect on the defendant.

The Court determined that trial counsel was laboring under a conflict of interest because, in addition to representing the defendant, he also represented a witness who testified at trial for the government.  He represented that witness in the pending appeal of his criminal case, and trial counsel elected not to cross examine that witness at trial.  The Court also opined that the defendant made out a strong case that this conflict of interest had an adverse effect on him because cross examination was a viable option, and he may not have done so due to his loyalty to the witness.  The Court, however, remanded for an evidentiary hearing to flesh our more details about the conflict of interest and its impact on trial counsel.

Dixon: Affirming Drug Trafficking Convictions and Sentences Over Numerous Challenges

In United States v. Dixon, et al., No. 15-14354 (Aug. 24, 2018) (William Pryor, Jill Pryor, Restani), the Court affirmed the defendants drug and firearm convictions and sentences over numerous challenges.

First, the Court concluded that the evidence was sufficient to support the defendants' convictions for conspiracy to distribute 280 grams of cocaine base.  In so concluding, the Court rejected the argument that there were several different conspiracies that only involved some of the defendants, and that a conspiracy requires a command and control structure with one or more "bosses" coordinating the actions of each player.

Second, the Court concluded that the district court did not err by denying a defendant's suppression motion.  It concluded that he lacked standing to challenge the search of his girlfriend's car in which he lacked a possessory interest, and the officers were entitled to search it in any event under the automobile exception due to the odor of marijuana.  The Court also concluded that the defendant's interview at the jail while under arrest for state charges did not violate his right to counsel, because the defendant initiated the conversation.

Third, the Court concluded that sufficient evidence supported a defendant's 924(c) conviction because, despite the small amount of marijuana, there was evidence that he was on his way to sell drugs and he had a firearm in his possession.

Fourth, the Court rejected the defendant's argument that the district court violated his procedural due process rights by not sua sponte conducting a competency hearing due to traumatic brain injury and mental defects, and that such defects rendered invalid his sentence appeal waiver.

Fifth, the Court found sufficient evidence supported a defendant's conviction for a violent crime in aid of racketeering, finding that he possessed the requisite motive of maintaining or increasing his position in the enterprise.

Sixth, the Court found sufficient evidence supported the defendant's convictions for possession with intent to distribute and 924(c).  The Court found no error by giving a Pinkerton instruction based on his role in the conspiracy.

Seventh, the Court found no error by admitting evidence of uncharged conduct.  The Court found no need to address the Rule 404(b) issue because the conduct was intrinsic to the charged offenses, since they were linked in time and circumstance with the conspiracy, and its admission did not violate Rule 403.

Eighth, the Court found that the district court correctly denied a motion for a mistrial based on prosecutorial misconduct at closing because, although the prosecutor misspoke by referencing dismissed charges, it did not prejudicially affect the defendant's substantial rights.  The reference was not extensive, there was no indication that the prosecutor did so deliberately, the evidence was extensive, the prosecutor quickly admitted his error, and the court gave a curative instruction.

Ninth, the Court found that the district court did not err by refusing to instruct the jury on entrapment.  Clarifying that the proper standard of review is de novo, not abuse of discretion, the Court found that, while the undercover officer attempted to persuade the defendant to sell a firearm, he was prosecuted only for possessing a firearm.  Thus, not entrapment instruction was warranted.

Tenth, the Court found that a defendant's sentence was reasonable.  First, the Court found no clear error by applying a four-level role enhancement.  Second, there was no error by finding him responsible for the sale of at least 2.8 kg of cocaine base under the relevant conduct guideline.  Third, the Court found no reversible error in counting a juvenile offense as criminal history because it was within five years of the commence of the offense, and there was no plain error by counting convictions for which adjudication was withheld and it did not affect the guideline range.  Lastly, the Court found the 420-month sentence substantively reasonable because it was in the guideline range and he was not similarly situated to other conspirators who cooperated with the government and received lower sentences.

McIntosh: Particularly Severe Personality Disorder was "Mental Defect" for Civil Commitment Statute

In United States v. McIntosh, No. 16-16442 (Aug. 20, 2018) (William Pryor, Jill Pryor, Anderson) (per curiam), the Court upheld the district court's decision to deny the defendant unconditional release from civil confinement.

The defendant was found not guilty by reason of insanity, and the district court ordered him civilly committed under 18 USC 4243(f).  On appeal, the defendant argued that the district court erred by finding that his risk of danger to others was due to a "mental disease of defect." The Court concluded that there was no clear error given evidence that he suffered from a particularly severe personality disorder.  The Court rejected the argument that, under the statute, mental diseases were limited to those diagnoses that clinicians would classify as such.

Colon: Indiana Causation-of-Injury Battery Statute Satisfied ACCA's Elements Clause

In Colon v. United States, No. 17-15357 (Aug. 16. 2018) (Ed Carnes, William Pryor, Anderson) (per curiam), the Court held, without oral argument, that Indiana battery statutes satisfied the elements clause of the ACCA.

The Indiana battery statute required the causation of bodily injury, which was defined to include any physical impairment, including pain.  The defendant argued that the causation of physical pain did not satisfy the elements clause.  Relying on its en banc decision in Vail-Bailon, the Court disagreed, reasoning that because the statute required the causation of pain, it was necessary "capable" of causing such pain.

Castillo: Guilty Plea Waived Ability to Challenge Pre-Arraignment Delay on Appeal

In United States v. Castillo, No. 17-10830 (Aug. 14, 2018) (William Pryor, Martin, Wood), the Court affirmed the defendant's title 46 conviction and sentence.

First, the Court rejected the defendant's argument that the MDLEA's failure to permit safety-valve relief violated equal protection and due process.  Applying a rational basis test, the Court concluded that there were legitimate reasons for Congress to craft stricter sentences for MDLEA offenses than domestic drug offenses given pressing concerns about foreign relations, global treaty obligations, and deterrence.

Second, the Court rejected as foreclosed by precedent the argument that the MDELA violates due process by subjecting foreign nationals to U.S. prosecution absent a nexus to the U.S.

Third, the Court concluded that the defendant could not challenge the constitutionality of his detention on appeal.  Although he argued that a 19-delay before presentment to a magistrate judge was unreasonable and violated due process, the Court found that his guilty plea precluded him from raising that argument on appeal, citing the Supreme Court's recent decision in Class.  The defendant could not circumvent that bar by characterizing his complaint as a constitutional challenge to the MDLEA.  Thus, the Court could not reach the merits of his detention.

Judge Martin concurred in the judgment.  She agreed with the first two holdings, but disagreed with the holding that, by pleading guilty, the defendant waived his argument that a 19-day detention between arrest and first appearance violated due process.  She did not read Class or circuit precedent as supporting that result.  Nonetheless, she concluded that the delay in this case was reasonable.

Joyner: Applying Good-Faith Exception to Carpenter Error

In United States v. Joyner, et al., No. 17-10289, 17-10826 (Aug. 14, 2018) (William Pryor, Julie Carnes, Antoon) (per curiam), the Court affirmed the defendants' convictions for Hobbs Act robbery and 924(c), but vacated one defendant's sentence due to a plain guideline miscalculation.

First, the Court concluded that the district court did not err by providing the jury with a copy of the indictment listing the dates of the charged robberies in response to a jury question about the dates and times of the offenses.  The defendants argued that supplying the jury with the indictment improperly suggested that it was evidence of guilt without re-instructing the jury that it was not.  The Court concluded that, while it would have been prudent for the court to remind the jury of that, it concluded that the court did not abuse its discretion in failing to do so under the circumstances of this case. 

Second, the Court concluded that the district court's denial of a motion to suppress cell site data did not warrant reversal.  Although the Supreme Court's decision in Carpenter rendered their admission erroneous, abrogating in part prior circuit precedent in Davis, it did not abrogate the alternative good-faith holding in Davis.  The defendants made no argument for why the good-faith exception did not apply where the government complied with circuit precedent then in existence.

Third, the Court found no abuse of discretion in denying a defendant's motions for new counsel due to a breakdown in communication.  After several hearings, the court found that there was no such breakdown, and a defendant's general loss of confidence or trust in counsel, alone, is not sufficient to establish good cause.

Fourth, the Court concluded that the district court did not err by rejecting the defendant's Bruton argument.  The admission of a co-defendant's statement was not erroneous because it was not directly incriminating on its face, but rather became so only after linked with other evidence later introduced at trial.

Lastly, the Court accepted the government's concession the district court erroneously applied a 5-level enhancement rather than a 4-level enhancement under the unit-based grouping guideline in USSG 3D1.4.  Although nobody objected to that error, the Court found that it satisfied the requirements for plain error and therefore vacated the sentence.

Elbeblaway: Upholding Health Care Fraud Convictions but Vacated Forfeiture Order Under Honeycutt

In United States v. Elbeblawy, No. 16-16048 (Aug. 7, 2018) (William Pryor, Martin, Wood), the Court affirmed the defendant's health care fraud convictions but vacated the forfeiture order.

First, the Court concluded that the court did not err by admitting at trial a signed factual basis for a plea agreement that the defendant entered before changing his mind and proceeding to trial.  Although rules of evidence and procedure normally bar that admission, the defendant agreed to waive those rules in the plea agreement, and that waiver is enforceable if voluntary.  The Court rejected the defendant's argument that the waiver was unenforceable, finding that the waiver was unambiguous, and the court did not clearly err by finding a voluntary waiver due to his attorney's failure to explain it.

Second, the Court concluded that the government did not violate Brady by failing to disclose an allegedly exculpatory report about a police interview.  The Court found no reasonable probability of a different outcome from that report, but rather found that it would have had only some minimal impeachment value of a witness, and the evidence was overwhelming even without that witness' testimony.

Third, the Court concluded that the court did not constructively amend the indictment by instructing the jury on the conspiracy count.  Despite the court's slightly different wording from the pattern instruction, the court correctly stated the law and its instruction tracked the pattern almost verbatim.  It observed that cheating the government out of money or property, as charged, was indeed a kind of deceptive interference with the lawful functions of the government. 

Fourth, the Court concluded that the court did not clearly err when calculating the guideline range.  There was no ex post facto violation by sentencing him under the more recent version of the Guidelines because his offense continued after the amendment.  There was no clear error by applying the sophisticated means enhancement.  And there was no clear error in calculating the loss because it was supported by the evidence, including the signed factual basis of his plea agreement.

Lastly, as to the forfeiture  order, binding precedent foreclosed the arguments that forfeiture statutes did not authorize personal money judgments, and that the Sixth Amendment required proof beyond a reasonable doubt.  However, the Court found that the court erred under Honeycutt by imposing a forfeiture order that held the defendant jointly and severally liable for the proceeds of the conspiracy.  Although Honeycutt involved a different statute, the same reasoning applied to the statute for health care fraud.

Maitre: Upholding Agg ID Convictions and Loss Calculation

In United States v. Maitre, No. 17-12166 (Aug. 7, 2018) (Martin, William Pryor, Hall), the Court affirmed the defendant's convictions and sentence for access device fraud and identity theft.

First, the Court upheld the district court's deliberate ignorance instruction.  It concluded that there were facts supporting an inference that the defendant purposefully contrived to avoid learning all of the facts beyond her own denial of knowledge.

Second, the Court found that the evidence was sufficient to uphold her convictions.  As to the conspiracy count, the Court found that she had the requisite knowledge because the home she shared had stolen goods in plain view around the house, she engaged in "heat runs" to avoid being followed by the police, she accompanied the other defendants to throw away evidence.  As for the aggravated identity theft counts, the Court concluded that the defendant constructively possessed the means of identification and that she knew they belonged to real people who had been victimized.

As for the sentence, the Court found no clear error with regard to the loss calculation because credit cards, debit cards, social security numbers, and driver's licenses all qualified as "access devices."  The Court also found no clear error in refusing to deny her a minor-role reduction.

In re Williams: Judges Wilson and Martin Criticize the Rule that Published SOS Holdings are Binding Precedent

In In re Williams, No. 18-12538 (Aug. 1, 2018) (Wilson, Martin, Jill Pryor) (per curiam), the Court denied an application by a state prisoner for leave to file a successive 2254 petition.

Judge Wilson, joined by Judges Martin and Jill Pryor, specially concurred in order to criticize the Court's recent holding in St. Hubert that all published SOS orders are binding precedent.  In a thorough opinion, he explained why that holding was problematic: SOS applications are prepared on a standardized form and often decided without counsel, oral argument, adversarial testing, or the full record; the 11th circuit publishes more SOS orders than other circuits, no other circuits considers itself bound by the 30-day deadline to decide an SOS application, and several other circuits receive briefing and oral argument in SOS application; SOS orders are unreviewable by statute, and so any mistake can be corrected only if a judge sua sponte requests rehearing en banc; and there are no formal rules on when orders can be published or reheard en banc.

Judge Martin, joined by Judges Wilson and Jill Pryor, also specially concurred in order to explain how creating binding precedent through SOS orders "goes far beyond the prima facie examination called for by the statute."  She emphasized that no other circuit examines the underlying merits at the SOS stage.  But the Eleventh Circuit, by contrast, has "entered hundreds of orders denying motions based on this merits inquiry, thus touching many lives."  And, in doing so, it has published at least eight opinions holding, for the first time, that a particular offense was a violent felony or crime of violence.

Watts: Upholding Armed Bank Robbery and Obstruction Enhancements Following Pro Se Trial

In United States v. Watts, No. 17-12066 (July 24, 2018) (Branch, Martin, Jill Pryor), the Court affirmed the defendant's convictions for armed bank robbery and brandishing a firearm during a crime of violence.

First, the Court concluded that the evidence was sufficient to support the convictions because there were eyewitness accounts, clothing found in his car matched that worn by the robber, and he possessed the same caliber ammunition as would be used in the weapon that the robber brandished.

Second, the Court concluded that the district court did not violate his constitutional right to testify on his own behalf.  Although the pro se defendant repeatedly requested to testify, he changed his mind after having off-the-record conversations with his advisory counsel.  The record did not rebut the presumption that the defendant made his decision not to testify knowingly and voluntarily, even if he later had second thoughts.  And it did not indicate that he had a mistaken belief about his ability to testify.

Third, the Court upheld the imposition of a sentencing enhancement for obstruction of justice--namely, for destroying or concealing material evidence.  The Court found that the defendant did far more trying to avoid arrest; rather, he tried to alter his distinctive identifying tattoos that the investigators were looking for, thus destroying material evidence.

Hylor: Florida Attempted First-Degree Murder is a Violent Felony under the ACCA's Elements Clause

In Hylor v. United States, No. 17-10856 (July 18, 2018) (William Pryor, Jill Pryor, Restani), the Court held that Florida attempted first-degree murder was a "violent felony" under the elements clause of the Armed Career Criminal Act.

Relying on circuit precedent, the Court rejected the defendant's argument that murder by surreptitious poisoning would not satisfy the elements clause, because it is "capable" of causing pain or injury.  It was irrelevant that the offense was committed with indirect, rather than direct, force.  Also relying on circuit precedent, the Court found that attempting to commit murder had an attempted use of force as an element.  The Court also reiterated that, under circuit precedent, Florida aggravated assault and robbery were violent felonies.

Judge Jill Pryor concurred in the result.  Although bound by circuit precedent, she opined that the attempted murder offense should not satisfy the elements clause.  She disagreed with circuit precedent conflating an attempt to commit a violent felony with attempt to use physical force, arguing that this conflation rested on faulty logic: one could attempt to commit a violent crime without attempting to use physical force.

Guevara: Evidence Sufficient to Support Conviction for Causing Business to File False FinCEN Form, but Obstruction Sentencing Enhancement Not Sufficiently Supported

In United States v. Guevara, No. 15-14146 (July 11, 2018) (Robreno (E.D. Pa.), Tjoflat, Wilson), the Court upheld the defendant's conviction for causing or attempting to cause a sports car business to file a false FinCEN form with the IRS, but it remanded for reconsideration of whether a two-level sentencing enhancement for obstruction of justice was warranted.

The Court found that the evidence was sufficient to support the conviction.  Although the defendant never tried to persuade, influence, coax, or encourage the business to file a form containing misstatements, he knowingly caused the business to do so.  The defendant negotiated and paid for the vehicles with cash; he knew that the business would be required to complete a form as a result; he solicited his friend to act as a straw owner; and, as a result, the forms contained material misstatements about the identity of the owner.

The defendant also argued, for the first time on appeal, that the evidence was insufficient because the government failed to introduce either the original or certified copy of form submitted to the IRS, but instead introduced an IRS-prepared document summarizing the transactions.  The Court agreed that the failure to admit the IRS form was error under the best evidence rule in Federal Rule of Evidence 1002.  However, applying plain error, the Court concluded that this error did not affect the defendant's substantial rights or the fairness, integrity, or public reputation of the proceedings because, even without any evidence of a form containing the misstatements, the defendant still could have been convicted of attempting to cause the business to file a false form.

The Court, however, remanded for re-sentencing because the district court failed to make sufficient factual findings about how the defendant obstructed or impeded the investigation.  Instead, it made only vague and equivocal statements about his tax returns filed years before the offense, his use of a straw buyer, and his false statements that did not actually impede the investigation.  And the record did not clearly reflect how those statements supported the obstruction enhancement.  Accordingly, the Court vacated the sentence and remanded to allow the district court reconsider the obstruction enhancement and support it with factual findings.

Morales: Consent to Search by a Co-Occupant Was Valid Where Co-Occupant Defendant Was Nearby and Failed to Object

In United States v. Morales, No. 16-16507 (June 29, 2018) (Ed Carnes, Marcus, Ross), the Court upheld the defendant's felon in possession conviction and sentence.

First, the Court upheld the denial of the defendant's motion to suppress a warrantless search of the home based on the consent of a co-occupant.  The Court determined that the consent was voluntary because the two officers did not threaten or intimidate her, she was not restrained, she fully cooperated, and they explained that she had the right to refuse consent.  The Court then rejected the defendant's argument that her consent was invalid because the officers intentionally declined to ask him, a physically present co-occupant, for consent.  The Court emphasized that the defendant did not object, even though he was not far away from the door, and there was no evidence that the officers intentionally removed him from the area so that he could not refuse consent.  And the officers were not required to ask him whether he objected where the co-occupant consented.

Second, the Court found that the evidence was sufficient to support the conviction.  The defendnat admitted that he found the guns, brought them into the home, and placed them in the bag where they were found.  The Court rejected the defendant's argument that his confession was not sufficiently corroborated by other evidence, including the guns, ammunition, bag, and testimony of the searching officer.

Third, and finally, the Court rejected the defendant's argument that his ACCA sentence violated the Eighth Amendment.  That argument was foreclosed by precedent, and the defendant's "out-of-the-blue" argument that the prior precedent rule does not apply to sentencing issues was "without any support in the law."

Henderson: Upholding False-Statement Convictions by VA Employee

In United States v. Henderson, No. 16-16984 (June 27, 2018) (Ripple, Rosenbaum, Jill Pryor), the Court upheld the convictions and sentence for making false statements by a VA employee in connection with the delivery and payment of healthcare services.

First, and reviewing for plain error, the Court rejected the defendant's argument that the government failed to prove that the false statements were "material."  The Court found that the statements, even if ambiguous, had a natural tendency of influencing the decision-making body, because they could have misled a medical professional about whether the health care services had actually be rendered by the VA contractor.  Second, the Court concluded that the government sufficiently established the defendant's statements were made knowingly and willfully because, despite claiming to be informed that the patients had actually received medical services, the government presented evidence at trial to refute that claim.  Similarly, the government presented sufficient evidence to refute his claim that he lacked the requisite mens rea by closing consults only from earlier fiscal years.

Second, the Court upheld the defendant's conviction for making false statements to federal investigators during an interview.  The Court found the evidence sufficient with regard to his mens rea because the statement he made to investigators was inconsistent with other evidence.  And the Court found the evidence sufficient with regard to the materiality of his statement because, regardless of whether the agents already knew the truth or were actually misled, it had the tendency of influencing the government's investigation.

Third, and finally, the Court upheld the application of the enhancement in USSG 2B1.1(b)(15)(A) for the "conscious or reckless risk of death or serious bodily injury."  The government presented evidence showing that the false statements could have delayed and influenced patient care, and the government did not need to show actual evidence of death or serious bodily injury.  Moreover, the fact that the defendant initially refused to participate in the project, coupled with his eventual acquiescence, demonstrated his awareness of the risks posed by his conduct.  Moreover, one of the defendant's arguments was made in a Rule 35 proceeding after the notice of appeal had been filed, and the Court lacked jurisdiction to consider it because he did not amend his notice of appeal.  Finally, it was irrelevant that the probation officer disagreed with applying the enhancement.

Suarez: Upholding ISIS-Related Material Support Convictions and LWOP Sentence

In United States v. Suarez, No. 17-11906 (June 27, 2018) (Wilson, Ed Carnes, Jordan), the Court affirmed both the defendant's convictions for attempting to use a WMD and to provide material support to ISIS, and his life without parole sentence.

The Court concluded that the evidence was sufficient to support his convictions.  As for attempting to use a WMD, the Court rejected the defendant's argument that the government was required to prove a "substantial effect" on interstate commerce.  Instead, the Court concluded that, because this element went only to jurisdiction, the government was required to prove only a minimal effect on interstate commerce.  And the government met that low bar because a witness testified about how a terrorist attack would have affected tourism.  As for attempting to provide material support to ISIS, the Court found the evidence sufficient even though the defendant coordinated only with government informants and undercover officers, because he had the requisite intent to coordinate with and direct his services to ISIS, and he took substantial steps to do so.

As for the sentence, the Court first found no plain Eighth Amendment error.  The defendant was 24 years old, not a juvenile, and attempted to kill as many people as possible by detonating a bomb.  The Court next found no plain error with respect to the guideline calculations, rejecting the defendant's double-counting argument.  The fact that the base offense level and a "terrorism" enhancement were triggered by the same conduct did not constitute double-counting, because the two guidelines served different sentencing considerations and harms: one addressed the attempted use of dangerous materials with intent to injure the US or to aid a foreign entity, while the other addressed actions intended to influence or affect the government through intimidation or coercion.  Finally, the Court found the guideline sentence of life to be substantively reasonable, emphasizing that the district court properly considered what would have happened had the attempt offenses been completed.

Noel: Upholding Convictions for Extraterritorial Hostage Taking of an American Citizen

In United States v. Noel, No. 17-10529 (June 26, 2018) (Anderson, Marcus, Hull), the Court upheld convictions for hostage taking of an American citizen by a Haitian national in Haiti.

First, the Court held that the government was not required to prove that the defendant knew that the victim was an American citizen.  The Court reasoned that the victim's citizenship status was purely jurisdictional, and no mens rea is necessary for jurisdictional facts where the statute is otherwise silent.

Second, the Court rejected the defendant's argument that the statute was limited to crimes of terrorism.  The Court concluded that the plain language of the statute encompassed the defendant's conduct because he seized, detained, threatened to kill, and demanded ransom for the release of the hostage, who was an American citizen.  While the statute was focused primarily on terrorism and crimes involving governmental organizations, the plain language encompassed kidnapping and ransom demands with regard to private parties.  The Court joined every other circuit to address that issue.

Third, and finally, the Court rejected the defendant's argument that the extraterritorial application of the statute to his case violated due process.  Congress expressly provided that the statute would apply extraterritorially where the hostage is an American.  The Court rejected the defendant's argument that Congress lacked the constitutional authority to criminalize non-terrorism conduct committed by a Haitian national entirely in Haiti.  The Court's precedent had previously held that, regardless of whether the statute could be justified by the offenses clause (incorporating the law of nations) or the commerce clause, it implemented an international treaty and was therefore justified by the necessary and proper clause.  Finally, the Court concluded that application of the statute in this case was not arbitrary or fundamentally unfair, because the treaty, signed both by the U.S. and Haiti, provided global notice that such conduct could be prosecuted in a U.S. court.  And, even assuming that something more than the treaty was required, the victim's U.S. citizenship reflected a significant national interest of the U.S. in protecting Americans abroad.

Cozzi: Officer Lacked Even Arguable Probable Cause to Arrest Where He Ignored Easily Verifiable Exculpatory Evidence

Although a civil rights case, the Court's Fourth Amendment probable cause analysis should apply in criminal cases.  The Court emphasized that the officer unreasonably disregarded easily verifiable exculpatory evidence before arresting the plaintiff--specifically, the officer was told that the perpetrator had multiple tattoos, but the officer did not check to see if the plaintiff had matching tattoos before arresting him.  In addition, the evidence connecting him to the crime was otherwise very weak.  The officer received two tips that the plaintiff resembled the perpetrator, but one was anonymous, the officer knew that there was at least one other person who resembled the perpetrator, and the fact that one of the tipster's accurately identified the plaintiff's address and vehicle showed only that the tipster knew the plaintiff, not that he committed the crime.  Furthermore, while the officer found a plastic bag of pills on the plaintiff, that evidence did not match the items that the perpetrator stole, the officer did not conduct further investigation of that evidence, and the officer' search did not reveal any evidence linking the plaintiff to the crime.  The Court found that it did not need to decide whether the weak evidence possessed by the officer was alone sufficient because, by failing to verify the exculpatory information (the tattoos) before arresting him, the officer lacked even arguable probable cause under the totality of the circumstances.

Cobena Duenas: Evidence was Sufficient to Support Knowledge of Counterfeit Currency

In United States v. Cobena Duenas, No. 17-10509 (June 11, 2018) (Marcus, Ed Carnes, Ebel), the Court affirmed the defendant's counterfeit currency convictions.

On appeal, the sole issue was whether there was sufficient evidence to establish that the defendant knew that the transaction involved counterfeit currency.  Viewing the evidence in the light most favorable to the government, the Court found the evidence sufficient.   The Court emphasized that the defendant had substantial contacts with the organizer of the transaction and thus had ample opportunity to discover the object of the transaction; the defendant knew that the transaction was unlawful in nature; the defendant was instrumental to the success of the transaction, since he was responsible for the exchange; and, under the "prudent smuggler" doctrine, a jury could infer that the organizer would not have entrusted the defendant to close a deal for over $600,000 in counterfeit currency without telling him the details.  The Court distinguished five of its earlier sufficiency cases upon which the defendant relied, emphasizing again that he played a critical role in the actual exchange (as opposed to being merely present), had substantial contact and conversations with the organizer of the transaction, and was vested with substantial trust by the organizer.  Because the defendant was not a mere bystander or peripheral player, the Court found that the evidence was sufficient.

McLean: Immigration Judges are "U.S. Judges" for purposes of Criminal Statute Prohibiting Interference with Federal Officials

In United States v. McLean, No. 17-10741 (June 8, 2018) (Jordan, Wilson, Higginbotham), the Court upheld the defendant's conviction for threatening to assault an immigration judge with the intent to interfere with that judge's performance of official duties.

The Court rejected the defendant's argument that an immigration judge was not a "United States judge" within the meaning of the statute of conviction.  Because the statute defined that term to include U.S. Magistrate Judges, that foreclosed the defendant's argument that it was limited to Article III judges.  And the Court rejected his additional argument that immigration judges did not qualify because they are appointed by the Attorney General and serve within the Executive branch, emphasizing that they function as "judicial officers."

Man: Upholding Arms Export Conspiracy Conviction/Sentence Over Multiple Challenges

In United States v. Man, No. 16-15635 (June 6, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed a conviction and sentence for conspiracy to export defense articles without approval, in violation of the Arms Control Export Act. 

First, the Court found the evidence was sufficient to support the conviction.  Sufficient evidence established that she entered into an unlawful agreement with a co-conspirator, and so it did not matter that a third-party rejected their export proposals.  Sufficient evidence established that the defendant and her co-conspirator willfully violated the Act because, although the government was required to prove that the defendants knew their actions violated a known legal duty rather prove a mere awareness that their actions were generally unlawful, the government met that heightened mens rea standard in this case.  And because sufficient evidence showed showed that she was predisposed to commit the offense, the Court rejected the defendant's argument that she was entrapped.

Second, the Court found no abuse of discretion in admitting evidence of conspirators' communications.  A transcript of a conversation among her co-conspirators was admissible under the hearsay exception for statements offered against the defendant made by her co-conspirator during and in furtherance of the conspiracy.  Emails sent to the defendant by an unidentified third party were also admissible under that same hearsay exception.  And communications between the defendant her co-conspirator were intrinsic to the charged conspiracy and thus were not barred by Rule 404(b).

Third, the Court found that the defendant's sentence was procedurally and substantively reasonable.  As to the former, the Court concluded that the district court did not clearly err by declining to award her a minor role reduction under USSG 3B1.2(a), because she played an essential role in the conspiracy as the sole intermediary, by helping plan and organize the crime, she understood the scope and structure of the activity, she stood to benefit from its success, and her reliance on her mental status was governed by a different guideline and unpersuasive in any event given her persistent, deliberate, and sophisticated communications with the co-conspirators.  Her 50-month sentence was not substantively unreasonable because, contrary to the defendant's argument, the district court did not rely on an impermissible factor--i.e., her Chinese national origin--because the court was entitled to reference her allegiance to China, which was relevant to the offense.

Finally, the Court found found no plain Brady error by the government's failure to provide the defendant with an email sent by one of her co-conspirators to another, which the defendant argued could have been used to impeach one of them at trial.  The Court, however, found that she knew about the email yet failed to exercise reasonable diligence in procuring it before trial.  And she failed to establish a reasonable probability that it would have changed the verdict because, if anything, it would have helped the government establish the conspiracy.

Ponton: Castro's Notice-and Warning Requirement Applies to Petitions Pre-Dating Castro

In Ponton v. Sec'y, Fla. Dep't of Corrs., No. 16-10683 (June 4, 2018) (Ed Carnes, Marcus, Ross), the Court held that the district court erroneously dismissed a state prisoner's 2254 habeas petition as an unauthorized "second or successive" petition.

Although the district court denied on the merits an earlier pro se petition back in 1988, the Court concluded that this denial did not trigger the statutory bar on unauthorized second or successive petitions.  That was because there was no indication that the district court notified the petitioner that it would re-characterize the pleading as a habeas petition and gave him an opportunity to withdraw it, as required by the Supreme Court's decision in Castro.  Although Castro was not decided until 2003, the Court concluded that Castro's notice-and-warning requirement applied to petitions filed before that decision was issued.  And, although the petitioner here filed a number of other federal pleadings, they were all dismissed without prejudice or as unauthorized second or successive petitions, and thus also did not trigger the bar on second or successive petitions.

Campbell: No Reasonable Expectation of Privacy in a Home Used as the Base of Drug Trafficking Operation

In Campbell v. United States, No. 15-13261 (June 4, 2018) (Ed Carnes, Hull, Julie Carnes) (per curiam), the Court affirmed the denial of a 2255 motion alleging ineffective assistance of pre-trial counsel in connection with a motion to suppress.

The Court first concluded that counsel's performance was not deficient in investigating and litigating the suppression motion.  The specific facts of the case showed that counsel met with the client on multiple occasions to discuss strategy, complied with the client's request to file a motion, and competently argued the facts and the law on Fourth Amendment standing.  Although counsel might have investigated more thoroughly the client's connection to the residence, and although he did not call the client and other people as witnesses at the hearing, counsel could have reasonably believed that he had enough information to establish standing, and the Court does not second guess strategic decisions about which witnesses to call.

The Court also concluded that the movant failed to establish prejudice because he could not establish a meritorious Fourth Amendment claim, since he lacked a reasonable expectation of privacy in the residence as a house guest.  That was so because he was using the residence for a commercial purpose -- as the base of a marijuana trafficking operation -- and was using it for that purpose when he was arrested.  That he also hung out and kept personal possessions there was not sufficient to transform his business relationship with the house into a social one. 

Obando: A Flag Painted on the Side of a Vessel Does not "Fly" for Purposes of the MDLEA

In United States v. Obando, et al., No. 17-11202 (June 1, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed the defendants' Title 46 convictions.

On appeal, the main issue was whether a flag painted on the side of a vessel was "flying" for purposes of making a claim of nationality under the MDLEA.  The Court concluded that it was not.  It relied on the "ordinary meaning" of the term "fly," and found that this meaning made sense in the maritime context, citing maritime treatises and protocols.  The Court also found that other flag-related statutes supported that "flying" was a particular method of displaying a flag, and the MDLEA used that word instead of "displaying."  The Court rejected the defendants' reliance on: a Coast Guard form; idioms; statements from its earlier opinions; a district court decision supporting their functionalist interpretation; the argument that a textual approach would lead to absurd results; international law; and the rule of lenity.

The Court also rejected the defendants' alternative jurisdictional arguments.  First, it rejected the argument that a crew member made a verbal claim of registry, as that argument was contrary to a factual stipulation that no such claim was made.  Second, it rejected their argument that, by contacting Ecuador, the government was estopped from asserting the absence of any claim of registry.  Third, it rejected their argument that the coast guard acted in bad faith by knowingly contacting the wrong country.

Judge Black concurred in full, but noted that there was an additional ground for affirmance: there was no claim of nationality attributable to the vessel's master.  So even if the painted flag could otherwise support a claim of registry, it was insufficient without some claim by the master; the vessel could not speak for itself.

Scott: Second or Successive Brady Claims are Always Subject to the Gatekeeping Criteria

In Scott v. United States, Nos. 15-11377, 16-11950 (May 23, 2018) (Rosenbaum, Jill Pryor, Bartle), the Court held that second-or-successive Brady claims are always subject to the gatekeeping criteria in 2255(h), even if the petitioner could not have reasonably discovered the basis of the claim sooner, and there is a reasonable probability that timely disclosure would have resulted in an acquittal.

The Court reluctantly determined that this outcome was dictated by its prior precedent, which reached that same conclusion in the state-prisoner context of 2254.  However, in a lengthy analysis, the Court opined that this prior precedent was incorrect, conflicted with Supreme Court precedent and the Suspension Clause, and improperly rewarded the government for its unfair prosecution, thereby undermining the justice system.  In the Court's view, an actionable Brady claim that a diligent petitioner could not have reasonably been expected to discover should not be considered "second or successive," and thus should not be subject to the stringent gatekeeping criteria.  The panel urged the full Court to convene en banc in order to reconsider its prior precedent to the contrary.  The Court also concluded that counsel was not ineffective for failing to investigate further after taking the government at its word that it had produced all Brady material; the Court, however, did not foreclose the possibility of ineffective assistance of counsel where obvious red flags call the government's assurance into question.

Touset: No Reasonable Suspicion Required for Forensic Electronic Searches at the Border, Splitting with Two Other Circuits

In United States v. Touset, No. 17-11561 (May 23, 2018) (William Pryor, Julie Carnes, Corrigan), the Court held that reasonable suspicion is not required for a forensic search of an electronic device at the border, and, alternatively, reasonable suspicion existed.

The Court saw "no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property."  The Court refused to afford electronic devices "special treatment" just "because so many people now own them or because they can store vast quantities of records or effects," as border agents continued to bear the responsibility of preventing the importation of contraband regardless of advances in technology.  Only highly intrusive border searches of a person's body required suspicion, and that reasoning did not apply to electronic devices.  The Court acknowledged that the Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of electronic devices at the border, but the Court was "unpersuaded" by them.  The Court's recent decision in Vergara made clear that the Supreme Court's decision in Riley does not apply to border searches.  And it failed to see why a traveler's privacy should be given greater weight than the interest in protecting territorial sovereignty, as the Fourth and Ninth Circuits have suggested.  The Court suggested that doing so would "create special protection" for child pornography offenses.  The Court also suggested that it was up to Congress to create additional protections beyond what the Fourth Amendment required, and judicial restraint was especially important in this context.

Alternatively, the Court concluded that there was reasonable suspicion based on three separate payments to an account associated with a Philippine phone number, which was associated with an email account containing an image of child pornography.  Although those payments occurred over a year earlier, the Court joined other circuits rejecting staleness challenges in the child pornography context, where deleted filed can remain on electronic devices.

Judge Corrigan concurred, but declined to join the core holding because the government argued that no reasonable suspicion was required for the first time on appeal, and it was unnecessary to reach that issue given the existence of reasonable suspicion.

Mitrovic: Upholding Fraudulent Naturalization Conviction of Former Serbian Prison Guard

In United States v. Mitrovic, No. 16-16162 (May 23, 2018) (Corrigan (M.D. Fla.), William Pryor, Julie Carnes), the Court affirmed the defendant's conviction for unlawful procurement of naturalization.

At trial, the central dispute was whether the defendant served as a guard at a prison camp in Serbia where ethnic cleansing occurred in the 1990s, or whether he was instead forcibly conscripted into forced labor.  On appeal, he argued that the district court violated his right to a complete defense under Chambers v. Mississippi by refusing to admit hearsay statements of recalcitrant witnesses.  They were prisoners at the camp for a time period longer than defense witnesses who testified at trial, and they had initially stated that they had not seen him working as a guard, but later refused to be deposed because they were Muslims and did not want to be perceived as helping a Serb.

First, the Court ruled that application of the hearsay rules were neither arbitrary nor disproportionate, and did not violate the defendant's right to present a complete defense or infringe upon a weighty interest of the accused.  Rather, it only prevented him from increasing the quantity of witnesses who would tell the jury what other witnesses had already said.  The Court continued that, even if the correct application of the rules of evidence could violate Chambers, the hearsay statements here were different than the evidence in Chambers: they were merely helpful, not exculpatory; they were made 20 years after the events; they were not as compelling; and the declarants were not available for cross examination.  Only one of the factors slightly weighed in the defendant's favor -- i.e., the statements were possibly made against a social interest, which was an exception to hearsay in several states.  Thus, the Court concluded that Chambers was distinguishable.

Second, the Court rejected the defendant's argument that the district court erred by refusing to take judicial notice of the Geneva Convention to show that Bosnia would not have submitted documentation that it conscripted him into forced labor.  The Court assumed without deciding that the Geneva Convention could be judicially noticed, but found that the district court did not err by concluding that its probative value was substantially outweighed by the possibility of confusing the jury under Rule 403.  It was unclear whether the Geneva Convention applied, the jury would not know how to apply it, the defendant was still able to argue that he was conscripted into forced labor, and the Convention would not establish that a particular document was false.

Knowles: Erroneous Exclusion of Lay Identification Testimony Was Harmless

In United States v. Knowles, No. 16-16802 (May 15, 2018) (Jordan, Martin, Ginsburg), the Court concluded that the district court erred by excluding lay identification testimony, but it found the error harmless.

The district court had admitted under Rule 701 identification testimony from a government witness.  The Court rejected the defendant's argument that the testimony should have been excluded under Rule 403 because the witness was a law enforcement official who participated in the vehicle stop uncovering the incriminating evidence.  The official's familiarity with the defendant -- and thus the basis of his identification testimony -- was based in part on his observations of her during the traffic stop, and so it did not reveal any past or collateral contact by the defendant with the criminal justice system.

The Court, however, agreed with the defense that the district court erred by excluding defense identification testimony under Rule 701.  The Court applied the "equal treatment" principle used in the context of expert witnesses to the context of lay witnesses.  The defense witness was even more familiar with the defendant than the government's witness, and so he too should have been permitted to testify on the issue of identification.  And Rule 403 would not have barred that testimony, even though he had also served as an expert witness for the defense.  However, the Court concluded that the exclusion of his lay testimony was harmless, because the defense presented two former co-workers who provided identification testimony that would have rendered the excluded testimony cumulative.

Whitman: Upholding Bribery Conviction and Sentence

In United States v. Whitman, No. 15-14846 (Apr. 24, 2018) (William Pryor, Julie Carnes, Antoon), the Court upheld convictions and sentences for bribery, wire fraud, theft, and obstruction stemming the fraudulent procurement of government contracts.

One defendant challenged his bribery conviction on the ground that the court erred by failing to instruct the jury that giving illegal gratuities was a lesser-included offense of bribery.  The Court rejected that argument because the defendant advanced an exculpatory defense predicated on extortion that, if believed, would have required the jury to acquit him of both bribery and giving illegal gratuities.  The evidence thus would not have permitted the jury to acquit him of bribery but convict of him giving illegal gratuities.  As a result, the Court found it unnecessary to decide whether the latter was a lesser included offense of the former.

Another defendant challenged his sentence on the ground that he was not responsible for the entire loss amount attributable to the criminal scheme.  The Court rejected his argument that the actions of other government employees were taken independently and not the product of any criminal agreement.  The record permitted the district court to infer that he agreed to participate in a jointly undertaken criminal scheme.  It did not matter that the agreement was "implicit" or that he did not know every detail of the others' participation; it sufficed that he was fully aware of the objective and was actively involved in it.

Shabazz: Upholding Tax-Fraud Related Convictions and Sentences Over Numerous Challenges

In United States v. Shabazz, No. 17-10639 (Apr. 18, 2017) (William Pryor, Julie Carnes, Corrigan), the Court affirmed the defendant's tax-fraud convictions and sentence over a number of challenges.

First, the Court rejected the defendant's challenge to the admission of evidence from his wallet, because the search-warrant affidavit established probable cause to search the home where the wallet was found; and because the wallet was not outside the scope of the warrant, which authorized the agents to search for debit cards, among other things.

Second, the Court found that the district court did not clearly err by crediting the officers' testimony that they gave the defendant Miranda warnings, even though there was no corroborating evidence of the waiver.

Third, the Court found that the district court did not abuse its discretion by admitting evidence of uncharged tax returns because they were inextricably intertwined with the charged conduct, or by admitting photographs of the defendant and his wife with large sums of money in light of their financial circumstances.

Fourth, the Court concluded that the defendant waived his constitutional right to wear street clothes at trial by expressly declining the court's suggestion that he change into a suit and attempting to use his prison garb to his strategic advantage.

Fifth, the Court found no error when the district court instructed the jury on a Pinkerton theory of conspiracy, because there was ample evidence that the defendant joined a conspiracy and that the charged substantive offenses were reasonably foreseeable consequences of the conspiracy.

Sixth, the Court concluded that the evidence was sufficient to support the convictions, rejecting the defendant's argument that the evidence was insufficient to prove a conspiracy or, for the aggravated identity count, insufficient to prove that he knew the means of identification belonged to real people.

Lastly, as to the sentence, the Court concluded that: a) the district court did not clearly err by imposing a four-level minor-role enhancement, because there was substantial evidence that the defendant managed the scheme, there were at least five participants, and the court did not reverse the burden of proof; b) the district court did not clearly err by calculating the intended loss amount, upholding a methodology that considered losses from tax returns that used a common address, even though the defendant did not file them himself; and c) the 277-month sentence, the result of a downward variance, was substantively reasonable.

Suarez: Rejecting Challenge to GPS Search and Upholding Sua Sponte Obstruction Enhancement

In United States v. Suarez, No. 16-16946 (Tjoflat, William Pryor, Anderson) (per curiam), the Court upheld the defendant's alien smuggling convictions and sentence.

As to the conviction, the defendant argued that coast guard officials violated his Fourth Amendment rights by searching the GPS device on his boat.  In rejecting that argument, the Court relied heavily on the  terms of a consent form that he signed, which authorized a complete search of the boat for any law enforcement purpose.  That consent, the Court reasoned, included searching the storage compartment of the boat where the GPS was located and powering up the GPS once it was found.

As to the sentence, the Court rejected the defendant's challenge to the obstruction of justice enhancement under U.S.S.G 3C1.1.  First, the Court rejected the defendant's argument that the court violated his due process rights by imposing the enhancement sua sponte, because a witness's perjured testimony at trial, coupled with the existence of the Guideline itself, put him on notice of a potential enhancement.  The Court also found that the court did not refuse to hear from defense counsel on the enhancement; counsel simply failed to argue the point.

The Court then found no clear error in application of the enhancement, because the defendant was aware of the witnesses' potential perjurious testimony in advance and thus suborned perjury.  That finding was not clearly erroneous because, even though the government did not seek the enhancement, it was based on evidence adduced at trial.

Carroll: Reversing Child Pornography Conviction for Insufficient Knowledge of Peer to Peer Distribution

In United States v. Carroll, No. 16-16652 (Apr. 5, 2018) (Wilson, Dubina, Goldberg), the Court affirmed in part and reversed in part the defendant's child pornography convictions.

First, the Court concluded that a warrant affidavit supported the conclusion that there was probable cause to believe that child pornography would be found in the defendant's home.  The affiant explained how peer to peer file sharing worked and how the officers used the program to identify the defendant's IP address.  The Court rejected the defendant's argument that the issuing magistrate was required to personally review the pornographic material.  The Court also rejected the defendant's argument that the warrant failed to satisfy the particularity requirement, because it detailed the types of electronic items to be seized in the home.

Second, the Court found the evidence sufficient to uphold the defendant's possession conviction, because there was evidence that he knowingly possessed the images: although the files were discovered in an unallocated space on his computer and were deleted, there was evidence that he regularly and manually downloaded files to his computer over an 11-month period. 

However, the Court concluded concluded that the evidence was insufficient to sustain the defendant's distribution conviction, because there was no evidence that he knew he was sharing child pornography when they were automatically placed in a shared folder.  There was nothing in the record to indicate that he was aware that the items in this folder were automatically distributed to the peer to peer network, and the mere fact that he used a peer to peer program was insufficient by itself.  The record did not include any indication that the program prompted the defendant to chose to share downloaded files, enabled a sharing function, or accepted a licensing agreement that involved setting up a shared folder.

Finally, the Court affirmed sentencing enhancements for possession of more than 600 images and for possessing sadistic or masochistic conduct.  As to the former, the Court counted files located in the unallocated location because the defendant manually downloaded them.  As to the latter, the offenses depicted vaginal and anal penetration of young girls, and that sufficed.  And this was not double counting because they were not fully accounted for in the base offense level.

Maxi: Drug Trafficking Convictions Affirmed Over Various Suppression Challenges

In United States v. Maxi, No. 15-13182 (Apr. 5, 2018) (Martin, Jordan, Walker), the Court affirmed the defendants' drug-trafficking convictions.

As to one defendant, the Court affirmed the denial of his motion to suppress the search of a duplex.  The Court first concluded that the defendant had standing to challenge the search because, despite contradictory information and testimony, he paid rent, had a key, had been living there intermittently for three to six months, and kept some important papers there.  Because he was effectively a subtenant, not merely an overnight guest, he had a reasonable expectation of privacy.

The Court then accepted the defendant's argument that the police impermissibly entered the curtilage of the home, because they did so with the tactical purpose of securing the duplex and detaining anyone inside, which exceeded the implied license granted to the public and that of a knock and talk.  However, the Court concluded that the officer's unconstitutional violation pertained only to the manner of their approach, not the actual entry into the curtilage, and it did not result in the production of evidence that would not have otherwise been discovered had an officer conduct a permissible knock and talk.

The Court rejected the defendant's argument that he did not open the door voluntarily, because the district court found that he did not open the door in response to a show of authority.

The Court rejected his argument that the police committed another Fourth Amendment violation by breaking down the metal security gate and arresting him in his home without a warrant, because the arrest was supported by both probable cause and exigent circumstances: an officer saw a substantial quantity of drugs in the home and had received a tip that several guns were located there; and there was a risk that evidence would be destroyed if they left the duplex to get a warrant.

The Court next concluded that, even if the subsequent protective sweep and walk-through were illegal (which it noted was problematic because the home had already been secured), the evidence was nonetheless admissible under the independent source doctrine.

The Court then rejected the other defendant's two arguments.  First, it rejected his argument that there was no "necessity" for a wiretap because other investigative methods were available: the supporting affidavit stated that search warrants, confidential sources, pen registers, and visual surveillance had not allowed the police to track drug deliveries; undercover agents were unlikely to penetrate the group; and the conspirators were wary of surveillance.  The Court also rejected the argument that the affidavit omitted material facts--namely, that the confidential source was a former lieutenant in a drug organization and a lessee on one of the stash houses--because the defendant failed to show that the omissions were intentional or reckless, or that their inclusion would have undermined a finding of probable cause.

Lastly, the Court concluded that there was sufficient evidence to support a flight instruction.