In re Pollard: Denying SOS Under Davis Where Predicate was Armed Bank Robbery

In In re Pollard, No. 19-12538 (July 31, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied a successive application based on Davis because the 924(c) predicate was for armed bank robbery, which, under Eleventh Circuit precedent, still qualified as a crime of violence under the elements clause in 924(c)(3)(A).  The Court made clear that where the predicate offense qualifies as a crime of violence under the elements clause, the applicant cannot show a reasonable likelihood that he will benefit from Davis, and the application will be denied.

In re Palacios: Denying SOS Under Rehaif Because that Decision Does Not Satisfy Gatekeeping Criteria

In In re Palacios, No. 19-12571 (July 30, 2019) (Wilson, Rosenbaum, Newsom) (per curiam), the Court denied an application to file a successive 2255 motion based on Rehaif.

The Court explained that Rehaif did not satisfy the gatekeeping criteria in 2255(h)(2) because it interpreted a statute; it did not announce a new rule of constitutional law.  And the Supreme Court had not made Rehaif retroactive to cases on collateral review.  

Judge Rosenbaum concurred, reiterating her view that the en banc decision in McCarthan was wrongly decided, and it would wrongly preclude those in the successive posture from filing 2241 petitions based on Rehaif.

In re Navarro: Denying SOS Under Davis Where 924(c) Based in Part on Drug Trafficking Offenses

In In re Navarro, No. 19-12612 (July 30, 2019) (Ed Carnes, Rosenbaum, Black) (per curiam), the Court denied a successive application based on Davis.

Although the applicant ultimately pled guilty only to Hobbs Act conspiracy and 924(c), the plea agreement and factual proffer established that his 924(c) offense was predicated on both Hobbs Act conspiracy and two charged drug trafficking offenses in connection with a stash house robbery.  And the facts for all three predicate offenses were inextricaly intertwined.  Therefore, the Court reasoned, even ifthe  Hobbs Act conspiracy no longer qualified as a crime of violence, his drug offenses fully supported the 924(c) conviction.  The Court noted that this case was distinguishable from In re Gomez because that case involved a jury trial, which returned a general verdict; here, however, there was no uncertainty as to which of the predicate offenses identified in the indictment underlied the 924(c) conviction.

The Court also denied authorization as to a claim about the Sentencing Guidelines.

Judge Rosenbaum concurred because, on this record, it was clear that the 924(c) offense was based in part on drug offenses.  However, she would have ended the analysis there.

Feldman: Affirming Wire Fraud and Money Laundering Convictions/Sentences Over Various Challenges

In United States v. Feldman, No. 17-13443 (July 30, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendant's wire-fraud conspiracy and money-laundering conspiracy convictions over various challenges.

First, the Court held that Double Jeopardy did not bar the defendant's re-trial for on an alternative theory of liability for which the jury made no finding in his first trial.  Nor did the jury implicitly acquit the defendant on that theory by finding him guilty on the alternative theory.  Moreover, the defendant implicitly consented to the dismissal of the jury without it making a finding.

Second, the Court held that the evidence was sufficient to support his convictions for conspiracy to commit wire fraud and conspiracy to commit money laundering. 

Third, the Court found no constructive amendment of the wire-fraud conspiracy count.  With respect to the defendant's argument that a jury instruction constructively amended the indictment, the Court found invited error because defense counsel responded to the court's instruction by stating "that's fine."

Fourth, the Court rejected the argument that the defendant, who is Jewish, was deprived of due process when the prosecutor analogized his conduct to that of Fagin from Oliver Twist.  The government never referred to ethnicity or any stereotype, but rather made only anodyne references to a literary character as an example.

Finally, the Court found no reversible error at sentencing.  The Court found no clear error in connection with the loss amount and ten-or-more victim enhancement.  The Court found no clear error in an obstruction of justice enhancement based on a finding that the defendant committed perjury in his first trial.  The Court found no error in applying the sophisticated money-laundering enhancement.  Finally, the Court upheld as substantively reasonable an upward variance based on the defendant's lack of remorse and perjury.

Judge Pryor authored a lengthy concurring opinion criticizing the Court's decision in Takhalov, which had vacated the defendant's convictions based on its interpretation of the "scheme to defraud" element of wire fraud.  Although it was unnecessary to apply that interpretation to resolve this appeal, he opined that, depending on how it was interpreted, the decision was likely at odds with the common law of fraud.  He warned the bench and bar to "exercise due care in interpreting our opinion in Takhalov and determining its precedential value."

In re Cannon: Authorizing Successive 2255 Motion Under Davis for 924(o) Conviction but not 924(c) Convictions

In In re Cannon, No. 19-12533 (July 25, 2019) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court authorized a successive 2255 motion under Davis for a 924(o) conspiracy conviction but not for 924(c) convictions.

For the 924(c) convictions, the Court denied authorization because they were based on drug trafficking, substantive Hobbs Act, and carjacking, all of which remain qualifying predicates after Davis. 

For the 924(o) conviction, the Court observed that the offense was based on multiple distinct predicate offenses, most of which remained qualifying predicates, but one of which was Hobbs Act conspiracy, which was still an open question in this Circuit.  Because the jury returned a general verdict, and the crimes seemed inextricably intertwined based on its limited review of the record, the Court found it unclear which crimes served as the predicate for the 924(o) offense.  Therefore, it found that the applicant had made a prima facie showing.  The Court cited In re Gomez for support.  However, the Court cautioned that the movant bore the burden under Beeman to show that the jury likely based its verdict solely on the Hobbs Act conspiracy, not the other qualifying predicates--and the Court found there was some indication that it did not.  The Court also suggested that, where a 924(o) verdict rests on a drug trafficking predicate, there may not be any concern about a possibly defect in a related crime of violence predicate. 

In re Hammoud: Davis Satisfies the Gatekeeping Criteria in 2255(h) for Successive 2255 Motions

In In re Hammoud, No. 19-12458 (July 23, 2019) (William Pryor, Jordan, Hull) (per curiam), the Court authorized a successive 2255 motion based on Davis.

The Court granted the application as to a 924(c) conviction predicated on solicitation to commit murder.  The Court found that the application was properly stated under Davis, not Johnson or Dimaya.  The Court found that Davis announced a new rule of constitutional law that the Supreme Court has made retroactive.  The Court also found that the application was not barred under In re Baptiste because his earlier unsuccessful applications were based on Johnson/Dimaya, and Davis announed new rule.  Finally, the Court found that he made a prima facie showing that his predicate offense may not satisfy the elements clause, as that was an open question.  But don’t get too excited: the Court went out of its way to add that, in the distirct court, the movant has to satisfy his burden of proof under Beeman to show that the conviction was based solely on the residual clause in 924(c)(3)(B).

Weeks: For Beeman Purposes, Court May Consider Legal Landscape Through Direct Appeal

In Weeks v. United States, No. 17-10049 (July 22, 2019) (Anderson, Tjoflat, Jordan), the Court reversed the denial of a 2255 motion based on Johnson, finding that the movant met his burden under Beeman.

The Court held that, where the movant challenged his ACCA enhancement on appeal, the relevant time frame to consider whether the residual clause solely caused the enhancement extends through the direct appeal.   Thus, any precedents decided in that interim period may be considered.  So too may the appellate opinion in that very case, as well as the briefs filed in that appeal.  The Court found that statements in Beeman and Pickett about the question being a "historical fact" were dicta, so they did not preclude a court from considering events through appeal.  In this case, the Court considered intervening legal precedents and the appellate proceedings to conclude that the movant met hits burden as it pertained to Massachusetts convictions.

Tribue: Government Did Not Waive Ability to Rely on New ACCA Predicate in 2255 Proceeding

In Tribue v. United States, No. 18-10579 (July 11, 2019) (Hull, Jordan, Grant), the Court affirmed the denial of a 2255 motion based on Johnson.

First, the Court concluded that the 2255 motion was properly denied because the movant had three prior serious drug offenses under the ACCA.  The Court rejected the movant's argument that the government waived reliance on one of three convictions, which was not identified as an ACCA predicate in the PSI, because the government failed to rely on that conviction at sentencing.  The Court emphasized that the government had no reason to rely on that conviction at the time of sentencing, where there was no objection to the ACCA enhancement.  Because there was no objection, and the government did not expressly disclaim reliance on the prior conviction, the Court distinguished other cases where the Court had found a government waiver.

Whyte: For Sex Trafficking, the Government Need Only Prove a Reasonable Opportunity to Observe the Victim

In United States v. Whyte, No. 17-15223 (July 10, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' sex trafficking convictions.

The Court primarily held that, in light of a 2015 amendment to 18 U.S.C. 1591, the government may prove sex trafficking by establishing only that the defendant had a reasonable opportunity to observe the victim; the government need not also prove that the defendant knew or recklessly disregarded the victim's age.  The Court rejected the defendants' reliance on dictum in case law interpreting the pre-amendment version of the statute.  The Court rejected the defendants' related arguments, including that the Court's reading improperly created a strict liability offense and rendered the statute unconstitutionally vague.

Reviewing for plain error, the Court found no reversible error with regard to the jury instructions.  The Court found that the offense did not require knowledge of the victim's status as a minor, and so therefore that requirement could not be imported into the related conspiracy offense.  And although the instructions omitted the element of a commercial sex act from the numbered list of elements, that omission was not plain error in light of the entirety of the instructions.

The Court upheld the denial of a motion to suppress.  Although the detective's warrant affidavit omitted the victim's criminal history, the defendant failed to argue that he omitted material facts deliberately or with a reckless disregard for truth.

The Court found that limitations on the cross examination of the victim did not violate the Confrontation Clause.  Although the court prevented the defense from attacking the victim's credibility on one point, the defense explored her bias and credibility during a nearly two-day cross examination and elicited testimony that was cumulative to the testimony it was prevented from eliciting.

Finally, the Court upheld the denial of a reduction for acceptance of responsibility because the defendant contested a factual element of guilt at trial.  The Court upheld an undue-influence enhancement because the defendant was ten years older than the victim, creating a presumption of undue influence that he could not rebut.  The Court upheld, on plain error, an enhancement for use of a computer based on their use of smart-phones to communicate with the victim's clients, relying on circuit precedent that found the commentary inconsistent with the text of the Guideline.  The Court rejected the defendant's argument that an enhancement for commission of sex acts constituted impermissible double counting.  And the Court upheld as substantively reasonable the defendants' 300-month and 188-month sentences, both near the bottom of the guideline range.

Arias: Deference to Executive Branch on Legal Validity of Extradition Treaty with Colombia

In Arias v. Warden, No. 18-14328 (July 8, 2019) (Grant, Marcus, Hull), the Court upheld the denial of a habeas petition to block extradition to Colombia.

The petitioner emphasized that the Colombia Supreme Court had declared the extradition treaty unconstitutional.  But both the US and Colombia have continued to act as if the treaty is valid.  The Eleventh Circuit deferred to the State Department's position about the impact, if any, of the foreign court's ruling on the validity of the treaty.  The Court also rejected other challenges to the extradition based on the facts of the case.

Khan: No Per Se Deficient Performance by Refusing Court Instruction to Obtain Foreign Approval for Video Deposition

In Khan v. United States, No. 18-12629 (July 3, 2019) (William Pryor, Newsom, Branch), the Court affirmed the denial of a federal defendant's ineffective assistance of counse claim.

The attorney disregarded a court instruction to obtain the official consent of the Pakistani government to conduct video depositions on its soil.  The Court first rejected the movant's argument that failure to follow a court order constitutes deficient performance per se, rejecting any such bright-line rule.  Here, the Court found that the attorney made a reasonable strategic decision based on all of the circumstances, as he made significant efforts to obtain the depositions, the court did not impose an affirmative duty on the lawyer, and in any event that duty would be owed to the court, not the client.  The Court also found that the movant failed to prove prejudice from any deficient performance because there is no indication that the Pakistani government would have granted the lawyer's request, and the evidence of guilt was overwhelming.

Smith: No Confrontation Clause Violation Because Government Made Good-Faith Effort to Locate Witness Who Testified by Video Deposition

In United States v. Smith, No. 17-13265 (July 2, 2019) (Hull, Julie Carnes, Rosenbaum), the Court affirmed the defendants' alien smuggling convictions.

The primary issue on appeal was whether the district court violated the Confrontation Clause by admitting the videotaped deposition of a deported government witness (an alien smuggled on the defendants' boat).  In determining whether the witness was "unavailable" for purposes of the Confrontation Clause and the Rules of Evidence, the Court asked whether the government had made a good-faith effort to obtain the witness' presence at trial, and that was a question of "reasonableness."  The government was not required to make every conceivable effort to locate the witness.  Although the witness in this case was temporarily inside the United States at the time of trial, she had no cell phone or U.S. address, was illegally in the U.S., and had absconded from the trial court's jurisdiction to avoid detention and deportation.  And although the government sent a trial subpoena to the witness through her former attorney and her boyfriend, and the attorney reported back that she would cooperate, the witness still refused to appear.  Analyzing the particular facts and circumstances of the government's efforts, the Court found that the government made a reasonable good-faith effort to obtain her presence at trial.

The Court also concluded that the prosecutor did not make inappropriate comments during closing argument.  The prosecutor's comment that the defendant's prior alien smuggling conviction occurred in West Palm was correct and was made in response to the defendant's argument in closing that it would make no sense for an alien smuggler not to take the most direct route from the Bahamas to Florida.

Judge Rosenbaum issued a 43-page dissent on the Confrontation Clause issue, which, in turn, generated a 25-page response by the majority.   In her view, the government did not make a good-faith effort because it failed to pursue a promising lead it had reason to believe might help locating the missing witness.  Specifically, it failed to conduct a database or online search for the address of the witness' boyfriend (the government had called and texted the boyfriend to no avail). The two opinions debate the governing Supreme Court opinions on unavailability, whether the government made a good-faith effort under the facts of the case, and the relevance of other circuit decisions.