Moore: No Plain Error for Shackling and Rehaif Indictment Error Not a Jurisdictional Defect

In United States v. Moore et al., No. 17-14370 (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the defendants’ gun and drug convictions.

First, reviewing for plain error, the Court held that, although the district court failed to make any security finding for shackling the defendant, there was no prejudice.  There was no indication that the shackles were visible; the jury returned a split verdict; and the defendant was able to participate in the trial.  The Court emphasized that shackling should not be the norm, and it is not difficult for courts to explain why they are needed, but that the defendant failed to object in this case.

Second, the Court rejected the defendants’ arguments pertaining to a jury note expressing concern about their names appearing on the verdict form.  Specifically, the Court rejected the arguments that: the court interrupted a juror attempting to articulate concerns; the court provided a misleading summary of its in camera interview with the jurors; and that the court failed to conduct a Remmer hearing, which is necessary only where there was evidence of external influence on the jury.  The Court provided a roadmap for how district courts should address jury security concerns in the future, which was similar to what the court did here.

Third, and finally, the Court rejected the defendants’ Rehaif challenge to the indictment.   The Court rejected the argument that the failure to track/cite the language of 924(a)(2) was a jurisdictional defect; rather, the Court found that it was the mere omission of an element, which is non-jurisdictional in nature.  Therefore, applying plain error, the Court found that the defendants could not show prejudice because the record reflected that the defendants had served lengthy prison sentences in the past, including for felon-in-possession offenses.

Goldman: District Court Failed to Explain or Support Restitution Award for a Cultural Artifact

In United States v. Goldman, No. 19-11135 (Mar. 25, 2020) (Rosenbaum, Tjoflat, Hull), the Court affirmed the term of imprisonment but vacated the restitution award.

As for the term of imprisonment, the defendant objected to the district court’s valuation of a stolen gold bar for purposes of the guideline governing  theft of cultural artifacts in USSG 2B1.5.  The Court found it unnecessary to address the defendant’s argument because the district court stated that, regardless of the  guideline calculation, it would have imposed the same sentence, and that 40-month sentence was not substantively unreasonable.  Therefore, any guideline calculation error was harmless.

As for restitution, the Court clarified that the fair market value of a unique item lacking actual cash value is determined by its replacement cost.  In this case, however, the district court failed to meaningfully explain how it arrived at its valuation figure, and the underlying evidence was unsubstantiated.  Accordingly, the Court remanded for the district court to ascertain the amount of restitution consistent with its opinion.

Eason: Hobbs Act Robbery Not a Crime of Violence Under Career Offender Guideline

In United States v. Eason et al., 16-15413 (Mar. 24, 2020) (Jill Pryor, Jordan, Walker), the Court held that Hobbs Act robbery is not a “crime of violence” under the career offender guideline in USSG 4B1.2.

The Court joined four other circuits that had concluded that Hobbs Act robbery did not satisfy any of the three possible definitions.  As for the elements clause, which (unlike the elements clause in 924(c)) is limited to force against another person, the Court concluded that Hobbs Act robbery was overbroad because, by its plain statutory language, it could be committed by threats of force against property, not people.  For that same reason, the Court concluded that it did not satisfy the generic definition of “robbery.”  And, finally, the Court concluded that it did not satisfy the Guidelines’ narrow definition of “extortion,” which requires a threat or fear of “physical injury.”

Cingari: No Plain Error in Joint/Several Forfeiture and 2B1.1 Rather than 2L2.1 Applied to Immigration Fraud

In United States v. Cingari, No. 17-12262 (Mar. 17, 2020) (Grant, Jordan, Siler), the Court upheld the forfeiture award and the defendants’ sentences.

As to forfeiture, the defendants, a married couple, argued for the first time on appeal that the Supreme Court’s decision in Honeycutt precluded holding them jointly and severally liable.  However, the Court found no plain error because it was not clear that Honeycutt applied to civil asset forfeiture under 981(a)(1)(C), which independently authorized the forfeiture in this case, and because Honeycutt turned on the employer-employee relationship and did not obviously apply to a husband-wife relationship where there was joint ownership of the proceeds.  In a footnote, the Court noted that the government had attempted to expressly waive this argument, but that did not relieve the defendants of their burden to show plain error.

As to the sentence, the defendants, who were convicted of both mail fraud and falsifying immigration forms, argued that the district court should have applied 2L2.1 instead of 2B1.1.  Although the calculation began with 2B1.1, since that produced a higher offense level, the defendants argued that the cross-reference provision in 2B1.1(c)(3)(C) applied.   Applying circuit precedent, the Court rejected that argument, finding that the heart of the offense conduct was a fraud that more aptly fit 2B1.1 rather than 2L2.1.  The Court also found that this analysis was supported by the commentary governing the cross-reference provision, and there was no inconsistency with the text of the Guideline.  The Court again cast doubt on whether the rule of lenity applies to the Guidelines but found it unnecessary to resolve that issue because the language was not grievously ambiguous.