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.