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.
Tuesday, April 24, 2018
Thursday, April 19, 2018
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.
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.
Wednesday, April 11, 2018
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.
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.
Thursday, April 05, 2018
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.
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.
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.
Monday, April 02, 2018
Lee: Florida Robbery Remains a Violent Felony For Now, But Judges Disagree with Circuit Precedent
In United States v. Lee, No. 16-16590 (Apr. 2, 2018) (Jordan, Martin, Ginsburg) (per curiam), the Court re-affirmed its many circuit precedents holding that Florida robbery -- of all varieties and all years of conviction -- satisfies the elements clause of the ACCA and Sentencing Guidelines.
The panel recognized that the defendant's contrary arguments "have some force," and it "might well agree with them" were it writing on a clean slate, citing Judge Martin's earlier concurrence in Seabrooks. However, the Court was bound by its prior panel precedents, even if they were wrong, poorly reasoned, or failed to properly apply the law.
Judge Jordan concurred, opining that the circuit's precedents were wrong, because robbery by "putting in fear" and robbery by "force" in Florida did not necessarily require the use, attempted use, or threatened use of violent force. He concluded: " When we wrongly decided in Dowd, and then Lockley, that Florida robbery is categorically a violent felony under the elements clauses of the ACCA and the career offender provision of the Sentencing Guidelines, we dug ourselves a hole. We have since made that hole a trench by adhering to those decisions without analyzing Florida law. Hopefully one day we will take a fresh look at the issue." He might just get his wish: the Supreme Court today granted review in Stokeling to decide this very question.
Harris: Upholding Obstruction and Witness Tampering Convictions Over Various Evidentiary Challenges
In United States v. Harris, No. 16-17646 (Jill Pryor, Hull, Proctor) (Apr. 2, 2018), the Court affirmed the defendant's witness tampering and obstruction convictions over four evidentiary challenges.
First, the Court rejected the defendant's Rule 403 argument that it was unduly prejudicial for the government to introduce evidence of a murder for which she was never charged, because that evidence was highly probative of the obstruction charge and necessary to provide the jury with necessary context about it. The Court also found that the admission of five gruesome and inflammatory photographs of the murder was probative and did not carry an impermissibly high risk of inflaming the jury.
Second, the Court rejected challenges to the admission of hearsay evidence, because the statements were not offered to prove the truth of the matter asserted but rather to show its motivational effect on others. The Court also rejected a Rule 403 challenge to that evidence because it had probative value to the obstruction charge and thus its unfair prejudice did not substantially outweigh its probative value.
Third, the Court found that certain statements satisfied the co-conspirator exception to the hearsay rule in Rule 801(d)(2)(E). The Court rejected the defendant's argument that the statement were not made during the course of the conspiracy but were merely narrative declarations. The Court again rejected a Rule 403 challenge to their admission.
Finally, the Court found that the court properly admitted a protective order because it was relevant and probative of the witness-tampering charge. Although the defendant was unaware of the protective order, its existence showed that the witnesses faced substantial risks and therefore reasonably could have interpreted the defendant's communications as a threat.
First, the Court rejected the defendant's Rule 403 argument that it was unduly prejudicial for the government to introduce evidence of a murder for which she was never charged, because that evidence was highly probative of the obstruction charge and necessary to provide the jury with necessary context about it. The Court also found that the admission of five gruesome and inflammatory photographs of the murder was probative and did not carry an impermissibly high risk of inflaming the jury.
Second, the Court rejected challenges to the admission of hearsay evidence, because the statements were not offered to prove the truth of the matter asserted but rather to show its motivational effect on others. The Court also rejected a Rule 403 challenge to that evidence because it had probative value to the obstruction charge and thus its unfair prejudice did not substantially outweigh its probative value.
Third, the Court found that certain statements satisfied the co-conspirator exception to the hearsay rule in Rule 801(d)(2)(E). The Court rejected the defendant's argument that the statement were not made during the course of the conspiracy but were merely narrative declarations. The Court again rejected a Rule 403 challenge to their admission.
Finally, the Court found that the court properly admitted a protective order because it was relevant and probative of the witness-tampering charge. Although the defendant was unaware of the protective order, its existence showed that the witnesses faced substantial risks and therefore reasonably could have interpreted the defendant's communications as a threat.
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