Clotaire: Upholding Identity Theft Convictions Over Various Evidentiary Challenges, Including Admission of Mug Shot

In United States v. Clotaire, No. 17-15287 (June 30, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s identity theft convictions. 

First, the Court upheld the admissibility of surveillance video images used to identify the defendant.  It found that the still images were self-authenticating business records because there was no dispute that the video was a business record.  The Court rejected the defendant’s argument that he had the right to confront the person who pulled the still images from the video, as the still images were not testimonial statements.  And it also held that business record certifications are not testimonial.

Second, the Court rejected the defendant’s argument that he was denied the ability to present a complete defense.  It found that he was able to sufficiently cross examine government witnesses about its initial identification of someone else in the images.  It also found that two emails were properly excluded as hearsay, and the defense failed to try and use them for impeachment, nor did it subpoena the author of one of the emails.

Third, the government conceded that an officer’s testimony about camera distortion was expert testimony, but the Court found no plain error because the witness had specialized knowledge in that area and connected it to his testimony.  And the government was not required to provide advance notice of expert testimony because the defense never asked for it.

Fourth, the Court rejected the defendant’s argument that there was no proper foundation for a government witness’ identification testimony.  It was irrelevant that the witness met with the prosecutors before testifying.  And the defense had an opportunity to cross examine her about that contact.

Fifth, the Court, after a lengthy discussion of precedent, upheld the admission of the defendant’s mug shot so that the jury could compare it to the surveillance video images.  Despite skepticism about the use of mug shots in criminal trials, the Court found that the mug shot was central to the government’s case, which turned on whether the defendant was the one pictured in the surveillance images.  In addition, the parties stipulated that the mug shot was taken on the date of arrest in the instant offense, removing any inference that it was taken from a prior arrest.  Although the photo may have shown him in prison garb and the height markers, the photo did not show a rogue gallery of criminals, it showed the defendant only from the front (not profile), and it removed other administrative prison markings.  Finally, the debate about its admissibility took place outside the jury’s presence, and the government took steps to mitigate the potential prejudice.

Pon: Any Error in Limiting Defense Sur-Rebuttal Case Was Harmless

In United States v. Pon, No. 17-11455 (Ed Carnes, Martin, Rogers (CA6)), the Court affirmed the ophthalmologist defendant’s Medicare fraud convictions.

First, the Court found no abuse of discretion under Daubert when the district court found that the defense expert’s specific medical treatment theory was unreliable, and it therefore limited the expert to testifying about general concepts relating to eye diseases.  The Court concluded that three of the four Daubert factors weighed against the reliability of the expert’s theory.

Second, the defendant argued that the district court erred by allowing the government to present rebuttal evidence showing that he billed Medicare for providing certain services to one patient, and then limiting the defense’s surrebuttal evidence about that treatment of that patient.  After a lengthy discussion of preservation rules and the importance of harmless error, the Court held that, even if the district court erroneously limited the scope of the defense’s surrebuttal case, and that error violated his Sixth Amendment right to present a complete defense, that error was harmless given the overwhelming evidence of guilt that was unrelated to the error.  In response to the dissent, the Court emphasized that there were numerous Supreme Court and Eleventh Circuit precedents finding harmless error in the face of overwhelming evidence.

Third, as to sentencing, the Court concluded that the district court based its loss amount finding on specific and reliable evidence, including a spreadsheet showing the claims paid and extensive testimony by a special agent about Medicare data.  However, the Court vacated the sentences because the district court imposed concurrent 121-month sentences on all counts, the low end of the guideline range, but the statutory maximum was 120 months.  The Court remanded so that the district court could modify the sentence structure.

Judge Martin concurred in part and dissented in part.  In her view, the limitation of the surrebuttal defense violated the defendant’s right to present a complete defense.  And, in her view, that error was not harmless.  She emphasized that the Court should be cautious about using harmless error, particularly when based on overwhelming evidence.

Singer: Upholding Illegal Export Conviction and Sentence

In United States v. Singer, No. 18-14294 (June 26, 2020) (Rosenbaum, Jill Pryor, Branch), the Court affirmed the defendant’s conviction and sentence for attempting to illegally export encryption devices to Cuba.

First, the Court found sufficient evidence that the defendant intended to violate U.S. law and took a substantial step towards committing the offense.  As for his intent, and addressing an issue of first impression, the Court agreed with the defendant that the government was required to prove that he was aware of the device’s characteristic that rendered it illegal to export, but the evidence was sufficient to establish that he was so aware given government notices he received as well as his own behavior.  As for a substantial step, the Court concluded that the evidence was sufficient to show that the defendant did more than merely make preparations for the illegal export.

Second, the Court concluded that the district court did not err by refusing to give the defendant’s proposed jury instruction on ignorance of the law.  The district court’s instruction substantially covered the proposed instruction, in that it required the jury to find that the defendant knew his actions violated federal law or regulations, and the defendant’s proposed instruction risked confusing the jury by referring to the concept of “ignorance of the law.”  Nor did the court’s failure to give his proposed instruction impair his ability to present a defense.

Finally, the Court upheld a sentencing enhancement for obstruction because the district court did not clearly err in finding that the defendant committed perjury at trial.  First, the Court determined that the district court sufficiently made its own finding of perjury.  Second, the Court determined the defendant’s false testimony was material because it went to one of his defenses at trial.

Tigua: First Step Act Amendment to Safety Valve Applies Only to Those Adjudicated Guilty After its Enactment

In United States v. Tigua et al., No. 19-10177 (June 26, 2020) (William Pryor, Jordan, Newsom), the Court held—without oral argument—that Section 402 of the First Step Act does not apply to those who were adjudicated guilty before the effective date of the Act, even if they were sentenced after.

Section 402 made the safety valve available to those convicted under the MDLEA.  However, it applies only to “convictions entered on or after” the enactment of the First Step Act.  The Court rejected the defendants’ argument that a conviction was “entered” upon entry of the judgment after sentencing .  Instead, the Court concluded that a conviction is “entered” when the defendant is adjudicated guilty.  To reach that conclusion, it contrasted the language used in Sections 401 and 403.  And it rejected the defendants’ reliance on the Supreme Court’s decisions in Deal and Dorsey. 

Ross: Abandonment of a Place or Thing Goes to Fourth Amendment Merits, not Article III Standing, And so Is Waivable

In United States v. Ross, No. 18-11679 (June 24, 2020) (Newsom)  (en banc), the Court unanimously held that a suspect’s abandonment of a place or thing implicates only the merits of his Fourth Amendment claim, not Article III standing, which is jurisdictional in nature.  As a result, the government can waive an abandonment argument if it fails to properly raise it.  In so holding, the Court overruled contrary circuit precedent.

Judge Rosenbaum concurred: “As the writer of the Sparks opinion [the precedent being overruled], I regret my error and appreciate the Court’s correction of our Circuit’s jurisprudence.”

Caldwell: Upholding Bank Robbery Convictions Over Various Challenges

In United States v. Caldwell, No. 18-13426 (June 24, 2020) (Hull, Jordan, Tjoflat), the Court affirmed the defendant's bank robbery and firearm convictions.

First, the Court affirmed the denial of a motion to suppress identification evidence from a show-up procedure.  The Court held that, even if the show up was unduly suggestive, the district court did not clearly err in finding the identification to be sufficiently reliable based on the totality of the circumstances.  And the defense thoroughly cross examined the witness on her identification at trial.

Second, the Court rejected the defendant’s argument that there was insufficient evidence to establish the bank’s FDIC-insured status.  After reviewing earlier decisions about the type of evidence required, the Court found the evidence sufficient because, although the FDIC certificate pre-dated the robbery by 17 years, the government also called two witnesses whose testimony indicated that the certificate had never lapsed and remained in effect.   

Third, the Court upheld the denial of a motion for new trial based on newly discovered evidence that an FBI agent’s DNA testimony deviated from the FBI’s recommended language about likelihood ratios.  The Court concluded that the defendant failed to show that this new evidence would probably produce a different outcome given the other evidence at trial.

Denson: Section 404 of First Step Act Does Not Require a Hearing with the Defendant Present or Authorize a Plenary Re-sentencing

In United States v. Denson, No. 19-11696 (June 24, 2020) (Hull, Grant, Luck), the Court held—without oral argument—that Section 404 of the First Step Act does not require a district court to hold a hearing with the defendant present before ruling on a motion for a reduced sentence.

In this case, the district court granted the defendant’s motion and reduced his sentence to the low-end of the new guideline range, but it declined to go lower as the defendant had requested.  On appeal, the defendant argued that the court was required to hold a hearing with him present.  Joining the Fifth and Eighth Circuits, the Court rejected that argument after analyzing Section 404(c) and Rule 43.  And because Rule 43 did not require his presence, there was also no due process violation.  

The Court distinguished an earlier precedent involving a re-sentencing proceeding following the grant of a 2255 motion.  In so doing, the Court stated that Section 404 is a “limited remedy,” not a plenary or de novo re-sentencing.  It authorized a sentencing reduction only for counts that are “covered offenses,” and it does not permit courts to “change the defendant’s original guidelines calculations that are unaffected by sections 2 and 3” of the Fair Sentencing Act or “to reduce the defendant’s sentence on the covered offense based on changes in the law beyond those mandated by sections 2 and 3.”

Owen: Rejecting Faretta Claim and Challenges to Seizure of Jail Funds

In United States v. Owen, No. 15-12744 (June 24, 2020) (Jill Pryor, Bill Pryor, Luck), the Court affirmed the defendant’s convictions over a Faretta challenge and rejected his challenges to the court’s seizure of funds from his jail account to pay for appointed counsel.

As to the convictions, the defendant proceeded pro se during two days of trail before pleading guilty.  After analyzing eight factors, the Court concluded that the defendant knowingly and intelligently waived his right to counsel.

As to the jail account funds, the defendant first argued that the court failed to comply with procedural requirements in the CJA before seizing the money from his jail account.  However, because the court gave him notice and an opportunity to be heard before the court directed the money be paid to the Treasury, the Court concluded that any error was harmless.  Second, the defendant argued the court could not direct the funds to the Treasury because he received the money as Social Security benefits.  The Court concluded that, under the CJA, it lacked jurisdiction to address the district court’s administration determination in that regard, and the defendant could not use Rule 41 to circumvent that.

Oliver: Georgia Terrorist Threat Statute Is Divisible

In United States v. Oliver, No. 17-15565 (June 18, 2020) (Wilson, Jill Pryor, Tallman (CA9)), the panel reversed itself following a government rehearing petition and held that the defendant’s Georgia offense for making terrorist threats was a violent felony under the elements clause.

The panel had originally held that the statute was indivisible (and therefore categorically overbroad) because state law was unclear.  This time, however, the Court concluded that the defendant’s record of conviction—specifically, the indictment—made clear that the statute was divisible because it charged only one of the ways to commit the offense, suggesting that the statutory alternatives were elements rather than means.  And the Court concluded that alternative element in question—threatening to commit a crime of violent with the purpose of terrorizing another—satisfied the elements clause.  No case law supported the defendant’s argument that this particular offense encompassed threats to property as opposed to persons.

Judge Tallman concurred, opining that Georgia law made clear that the statute was divisible.

Jones et al.: Addressing Eligibility for Relief Under Section 404 of the First Step Act

In United States v. Jones et al., No. 19-11505 (June 16, 2020) (William Pryor, Grant, Jung (MD Fla)), the Court addressed eligibility for relief under Section 404 of the First Step Act in the context of four defendants, and it ultimately affirmed two orders denying relief and vacated two orders denying relief.

The Court determined that anyone sentenced under 841(b)(1)(A)(iii) or (b)(1)(B)(iii) has a “covered offense.”  It explained: “To determine the offense for which the district court imposed a sentence, district courts must consult the record, including the movant’s charging document, the jury verdict or guilty plea, the sentencing record, and the final judgment.”  Although the Court rejected the “statute of conviction” interpretation of several other circuits, it understood that its interpretation ultimately “arrived at the same end result.”  It rejected the government’s argument that a defendant’s specific drug quantity affected whether he had a “covered offense.” 

However, at the same time, the Court the concluded that courts may still lack authority under 404(b) to reduce a sentence for a “covered offense.”  The Court concluded that a district court is bound by the drug quantity used at sentencing to determine the defendant’s statutory penalties, even if that quantity had been found only by a judge.  And if the statutory range would remain the same based on that drug-quantity finding, the court lacks authority to reduce the sentence.  In effect then, the Court appears to have adopted the government’s conduct-based interpretation to eligibility, but did so under 404(b) rather than 404(a).

Based on those legal determinations, the Court concluded that all four defendants had “covered offenses” because they were originally sentenced under 841(b)(1)(A)(iii) or (b)(1)(A)(iii).  However, it nonetheless affirmed two orders denying relief because the judge-found quantity used at sentencing exceeded the increased thresholds under the Fair Sentencing Act.  The Court vacated two orders because the drug quantity used at sentencing was based on the jury verdict, and thus did not exceed the increased FSA thresholds.  However, because it was not clear whether the district court understood that it had authority to reduce their sentences, the Court vacated those two orders and remanded.

Yarbrough: Reasonable Suspicion Existed to Conduct Protective Sweep of a Home

In United States v. Yarbrough, No. 18-10624 (June 11, 2020) (Branch, Marcus, Ungaro), the Court affirmed the denial of a motion to suppress.

The Court concluded that concluded that, based on the totality of the circumstances, officers had reasonable suspicion to believe that a dangerous person or people could be inside a home, justifying a protective sweep.  Although the officers executed an arrest warrant in the driveway, the Court emphasized that: there were anonymous tips that the house was heavily trafficked and a possible source of drug activity; there were two cars at the residence and four people outside the home;  the defendant’s wife fled inside to the bathroom when the police called her name; and the sweep was immediate, took only a minute, and was limited in scope.

Judge Ungaro dissented, opining that there was no reasonable suspicion to believe that anyone was inside the home.  She emphasized that nothing during the arrest corroborated the anonymous tips, no drugs or weapons were found during pat downs of the men outside, and there was no indication that anyone else was inside.  The sweep, she concluded, was based on speculation rather than any articulable facts.

McGregor: Upholding Admission of Firearm Evidence in Identity Theft Trial

In United States v. McGregor, No. 19-10163 (June 3, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant’s identity theft convictions.

On appeal, the defendant argued that the district court abused its discretion by admitting evidence of the defendant’s possession of a firearm.  Rejecting that argument, the Court emphasized that the firearm was highly relevant because that firearm was found in the same closet with PII, thus indicating that the defendant (as opposed to his co-defendant) possessed the PII.  (The Court declined to opine on the alternative relevance theory that guns were “tools of the trade” in fraud cases).  And the government limited the prejudicial impact of the firearm by not telling the jury that the firearm possession was unlawful or that the defendant had prior convictions.  The Court found that possession of a firearm today is not so inherently prejudicial as to necessarily outweigh its probative value.

Andres: Neither Strategy Nor Inadvertence Excuses Failure to Timely File Suppression Motion

In United States v. Andres, No. 19-10823 (Lagoa, Branch, Fay), the Court, without oral argument, affirmed the defendant’s conviction and sentence.

The Court upheld the denial of a motion to suppress.  The Court reviewed for plain error because the defendant failed to timely file his motion, and neither strategy nor inadvertence could excuse that failure.  The Court found  that, based on the particular facts of the case, the officers had probable cause to justify a traffic stop.

The Court upheld the denial of a reduction for acceptance of responsibility.  The defendant proceeded to trial, he argued that he was innocent, and there was no indication that he did so only to preserve a legal argument.  Thus, this was not one of the rare cases that goes to trial in which acceptance remains appropriate.