Amodeo: Criminal Defendant Lacked Article III Standing to Appeal Order Partially Vacating Final Forfeiture Order

In United States v. Amodeo, No. 15-12643 (Feb. 21, 2019) (William Pryor, Rosenbaum, Moore), the Court held that a criminal defendant lacked Article III standing to appeal the partial vacatur of a final forfeiture order entered in his case.

The preliminary forfeiture order extinguished all of the defendant's interests in the property (here, two shell companies).  After no third parties claimed ownership, the court entered a final order forfeiting the companies to the government.  Subsequently, the defendant's victims brought a lawsuit and named the two companies as defendants.  The government had no interest in defending those companies in the lawsuit, and so it moved to partially vacate the final forfeiture order to divest itself of any ownership in the companies.  The district court granted that request.  The defendant then sought to appeal that order, but the Eleventh Circuit found that it did not aggrieve him in any way.  It reasoned that the preliminary forfeiture order had extinguished his interest in the companies, and the partial vacatur of the final forfeiture order did not revive any ownership interest of his.  Because he had no ownership interest in the companies, and thus no potential liability in the lawsuit, he lacked Article III standing to bring the appeal.

Judge Rosenbaum concurred in the judgment.  She agreed that the defendant lacked standing, but disagreed that Article III standard must always be determined first when more than one non-merits issue could dispose of a case.

Pickett: 2255 Movant Failed to Satisfy Burden of Proof Under Beeman Based on Legal Landscape at Time of Sentencing

In United States v. Pickett, No. 17-13476 (Feb. 20, 2019) (Marcus, Dubina, Goldberg), the Court vacated the district court's grant of a 2255 motion based on Johnson and remanded for reconsideration in light of Beeman.

The Court remanded because Beeman was issued after the district court's order, and so the district court did not have an opportunity to apply Beeman's new standard.  Before reaching that conclusion, however, the Court determined that, in light of the current record and legal landscape, the movant did not meet his burden to show that the sentencing court more likely than not relied on the residual clause alone.  Although the Court acknowledged that the Florida battery convictions at issue obviously satisfied the residual clause in February 2007 -- and the district court's 2255 order included a comment reflecting that understanding -- it was unclear whether the sentencing court also relied on the elements clause.  That was so even though there were unpublished opinions saying that the battery convictions did not categorically satisfy the elements clause, and a contrary statement in a published opinion was only dicta.  Thus, even though the sentencing court would have easily determined that the convictions qualified under the residual clause, obviating any need to consider the elements clause, it was not clear what the sentencing court might have actually thought (if anything) about the elements clause.  Because the Court did not know what genuinely happened in that regard, the movant could not meet his burden of proof under Beeman to show that the court more likely than not relied on the residual clause alone, and the Court remanded for the district court to make that determination in the first instance.

Harris: Upholding Hobbs Act Extortion Conviction of Former Prison Guard

In United States v. Harris, No. 18-12418 (Feb. 19, 2018) (William Pryor, Rosenbaum, Conway), the Court affirmed the defendant's conviction for Hobbs Act extortion.

First, the Court concluded that the evidence was sufficient to support the extortion conviction of the defendant, a former prison guard who discovered and then appropriated for himself a phone scam in which inmates were posing as government agents and tricking victims into paying fake fines in the form of prepaid debit-card numbers.  The defendant argued that the government failed to prove that he obtained the debit card numbers with the "consent" of the inmates, a required element of extortion, because the inmates had no choice but to turn over the numbers.  After an historical overview of the crime of extortion, the Court explained that "consent" in that context did not require such a degree of voluntariness; rather, a victim consents so long as he retains some degree of choice, even if it is a Hobson's choice.  Here, sufficient evidence showed that the inmates consented to the defendant taking their numbers without reporting him so as to avoid implicating themselves in the scam or possessing contraband.  The Court also found sufficient evidence that the defendant wrongfully used fear, one of the alternative means of extortion.

Second, the Court found that the district court did not violate the defendant's right to present a complete defense by limiting his closing argument.  Specifically, the court preventing him from arguing that, although he might have committed theft, he did not commit extortion.  The court, however, did permit him to argue that, while he may have been guilty of some crime, he was not guilty of extortion.  The court did not abuse its discretion by precluding the defendant from arguing that the government should have charged him with theft, as that risk confusing the jury.  And if the jury did not believe he committed extortion, it would have acquitted him.

Caniff: Private Text Messages Seeking Sexually Explicit Photos from a Minor Constitutes "Making" a "Notice" under 2251(d)

In United States v. Caniff, No. 17-12410 (Feb. 15, 2019) (Ebel (10th), Marcus, Newsom), the Court affirmed the defendant's child sex convictions.

First, and primarily, the Court held that, as a matter of statutory construction, requesting that a minor send sexually explicit photos can support a conviction for "making" a "notice" seeking child pornography, in violation of 2251(d)(1)(A).   The Court rejected the defendant's argument that a "notice" must be sent to the general public or at least a group of people.  Because a public component was not required, the defendant's private text messages with the minor sufficed.

Second, the Court found sufficient evidence that the defendant believed that the victim was a minor.  The victim told the defendant several times that she was 13, was not old enough to drive, and was sexually inexperienced. 

Third, the Court found no abuse of discretion in permitting an officer to testify about the contents of the defendant's cell phone.  The Court rejected the defendant's argument that the officer opined on the ultimate issue, in violation of Rule 704(b), because the officer was not testifying as an expert witness, and lay witnesses may draw on their professional experiences.  In addition, the officer did not expressly opine on the defendant's mental state about the age of the victim, only whether he generally found evidence of illegal activity on the phone.  And any error was harmless in any event because it was the defense, not the government, who first asked the detective the question.

Judge Newsom concurred in part and dissented in part. After discussing his favorite movie and opining that the defendant's conduct was "devlish," he reluctantly opined that the majority's reading of 2251(d) was incorrect and did not reach the defendant's conduct.  As a matter of common language, sending a request via text message was not "making" a "notice."  He found that the word "notice," as used in that particular statutory context, would not be understood by the average American to cover a private text message.  And he rejected the majority's purposive approach, as the defendant's conduct was covered by other statutes.

Valois: Upholding Title 46 Convictions and Sentences over Numerous Challenges

In United States v. Valois, et al., No. 17-13535 (Feb. 12, 2019) (Hull, Jordan, Grant), the Court affirmed the defendant's MDLEA convictions over numerous challenges.

First, the Court rejected the defendants' constitutional challenges to the MDLEA as foreclosed by circuit precedent.  Specifically, it rejected their arguments that Congress lacked authority to define and punish felonies on the high seas where there is no connection to the U.S.; that due process prohibited the prosecution of foreign nationals without a nexus to the U.S.; that the MDLEA violates the Fifth and Sixth Amendments by removing jurisdictional facts from the province of the jury; and admission of the Secretary of State certificate to establish jurisdiction violates the Confrontation Clause.

Second, the Court found no abuse of discretion in the denial of the defendants' motion for a mistrial based on the prosecutor's reference in closing arguments to a separate drug seizure.  The reference was not evidence and so did not violate Rule 404(b), and it was the defendant who interjected the prior seizure.  The prosecutor understandably sought to refute the defendant's reliance on that prior seizure.  And the defendants had not shown that the comment was prejudicial given the court's curative instruction to the jury.

Third, the Court rejected the defendants' argument that their Sixth Amendment rights were violated because their attorneys represented defendants involved in the separate drug seizure, and thus had a conflict of interest.  At the time counsel was appointed, there was no known connection between the two seizures; because a connection first arose during the trial, the court was not required to hold a conflict-waiver hearing before the trial began, and the court did hold such a hearing before sentencing.  Moreover, the defendants did not show that their attorneys had any actual conflict because they in fact tried to shift the blame on to the defendants involved in the other seizure.  The Court noted that, in the future, when two boat cases with cocaine are interdicted close in time and geography, and two indictments are filed on the same day, the magistrate judge should consider appointing separate counsel for each defendant because a conflict could have arisen had a defendant one on boat testified against a defendant on the other boat.

Fourth, and relying on prior precedent, the Court held that the defendants were statutorily ineligible for safety-valve relief, and this ineligibility did not violate equal protection.  The Court also suggested, without formally deciding, that the safety valve did not violate the right against self-incrimination by requiring defendants to provide the government with all the information they had, relying on circuit precedent rejecting a similar challenge to the acceptance of responsibility guideline.

Lastly, the Court upheld the denial of a minor-role reduction.