Davila-Mendoza: MDLEA Prosecution for Drug Trafficking in Foreign Waters Exceeded Congress' Authority

 In United States v. Davila-Mendoza et al., No. 17-12038 (Aug. 26, 2020) (Branch, Jill Pryor, Boggs), the Court vacated the defendants’ MDLEA convictions on the ground that the statute, as applied, exceeded Congress’ constitutional authority.

 The drug-trafficking activities in this case occurred in the territorial waters of a consenting foreign country, not the high seas.  The Court first concluded that, as applied, the MDLEA exceeded Congress’ authority under the Foreign Commerce Clause.  The Court assumed, without deciding, that this clause had the same scope as the interstate commerce clause.  Applying that framework, the defendants’ conduct lacked a “substantial effect” on commerce between the United States and foreign nations.  There was no allegation or evidence that drug trafficking in waters of a foreign nation by foreign nationals on a foreign boat of drugs not bound for the US substantially affected US commerce with foreign nations.  The Court rejected the government’s argument that wholly foreign drug trafficking impacted the international drug trade, which in turn could impact US commerce with foreign nations.  The Court also rejected the government’s argument that this prosecution was an exercise of Congress’ authority under the Necessary and Proper Clause to enforce a bilateral treaty with Jamaica, because the MDLEA was enacted before the treaty and thus could not have effectuated it.

Mastin: Extending Rule of Michigan v. Summers from Search Warrants to Arrest Warrants

 In United States v. Mastin, No. 18-14241 (Aug. 26, 2020) (Grant, William Pryor, Antoon), the Court affirmed the defendant’s felon in possession conviction.

 The Court upheld the denial of a motion to suppress the gun.  The gun fell out of the defendant’s waistband after the police ordered him to get on the ground and crawl out of a hotel room where the officers were executing arrest warrants on others.  First, the Court explained that, based on the totality of the circumstances, the officers could enter the hotel room to carry out the arrest warrants because they had a reasonable belief that it was the suspects’ dwelling and that one of them was there.  Second, the Court rejected the defendant’s argument that it was unreasonable to require him to crawl out of the room, because officers may briefly detain those on the premises not only while they execute a search warrant but also while they execute an arrest warrant.  In so holding, the Court extended the Supreme Court’s decision in Michigan v. Summers in a manner that the Ninth Circuit had not.

The Court also rejected the defendant’s argument that he was deprived of a fair trial because the court limited his right to cross examine a police witness and develop his defense theory.  The Court found no abuse of discretion because the questions he wanted to ask would not have been probative of bias and would have confused the jury.

Jimenez: Upholding Visa Fraud and Money Laundering Convictions

 In United States v. Jimenez, No. 18-10569 (Aug. 25, 2020) (Hull, Wilson, Lagoa), the Court affirmed the defendant’s immigration-fraud conspiracy and money laundering convictions.

 The Court held that sufficient evidence supported the immigration-fraud conspiracy conviction because the  material misrepresentations he conspired to make were in documents “required by immigration laws and regulations.”  The Court rejected his argument that the document in question, an I-140 petition, was not such a document.  And the Court held that there was sufficient evidence that the defendant conspired to make false statements in the I-140 petitions in order to obtain visas for Chinese nationals.  Because the evidence was sufficient to support the immigration-fraud conspiracy, the jury could have also convicted him of money laundering because the visa fraud conspiracy was a “specified lawful activity” for money-laundering purposes.

Estrada: Upholding Convictions for Smuggling Cuban Baseball Players

 In United States v. Estrada, No. 17-15405 (Aug. 13, 2020) (Jill Pryor, Rosenbaum, Branch), the Court affirmed the defendants' convictions for smuggling baseball players out of Cuba into the United States.

 First, the Court rejected as foreclosed by prior precedent the defendants' arguments that the Cuban Adjustment Act and Wet-Foot/Dry-Foot policy established “prior official authorization” for the players to enter the US.  The Court also rejected the argument that 1324(a)(2)’s “prior official authorization” component was unconstitutionally vague.

 Second, the Court found that the evidence was sufficient to support the defendants' convictions for both aiding and abetting alien smuggling and conspiracy to commit alien smuggling.

Third, the Court found no abuse of discretion in five evidentiary rulings.  Two witnesses were permitted to give lay (as opposed to expert) testimony about government unblocking licenses and visas.  The court did not improperly limit the defendants’ ability to cross examine those two government witnesses about whether they acted in good faith to comply with government regulations.  The court properly admitted evidence of uncharged violence and extortion because it was intrinsic evidence necessary to complete the story of the crimes.  The court properly admitted hearsay under the co-conspirator exception.  Finally, the court did not err by refusing to strike a government witness’ testimony because the court allowed the defendant to  put on evidence showing that the witness had lied, and his credibility was a matter for the jury.

Carter: Two Prior Drug Offenses Were Committed Separately Because Only One Received Location-Based Enhancement

 In United States v. Carter, No. 18-14806 (Aug. 12, 2020) (Grant, William Pryor, Antoon), the Court upheld the defendant’s ACCA sentence.

 The issue was whether two prior Alabama drug offenses were committed on separate occasions.  Based on a review of the indictment and plea admissions, the Court held that they were more likely than not committed separately, because only one of the two offenses received a location-based enhancement under state law.

McKathan: Probationer was "Compelled" For Fifth Amendment Purposes to Truthfully Answer Probation Officer's Questions

 In McKathan v. United States, No. 17-13358 (Aug. 12, 2020) (Rosenbaum, Branch, Dubina), the Court vacated the denial of a 2255 motion asserting ineffective assistance of counsel for failing to file a motion to suppress statements that he made to a probation officer while he was on supervised release.

 The question was whether the movant would have established a violation of his privilege against self-incrimination.  Because he never invoked the privilege, he had to show that he was compelled to make the incriminating statements.  Resolving that question affirmatively, the Court concluded that, in light of binding precedent, he was faced with a “classic penalty situation” because he could reasonably believe that his supervised release would be revoked if he did not truthfully answer the probation officer’s questions.  The Court remanded for the district court to determine if the statements would been admissible based on the inevitable discovery doctrine.

 Judge Branch dissented, opining that it was unreasonable for the movant to believe he faced a “classic penalty situation.”

Green: RICO Conspiracy Is Not a Crime of Violence Under 924(c)

In United States v. Green, No. 17-10346 (Aug. 11, 2020) (Wilson, Grant, Hinkle), the Court affirmed in part and vacated in part. 

First, the Court held that RICO conspiracy is not a “crime of violence” under the elements clause in 924(c)(3)(A).  The Court reasoned that, like Hobbs Act conspiracy, RICO conspiracy was premised on a mere agreement to participate in unlawful activity and does not require an overt act. 

Second, the Court held that one of the defendant’s 120-year sentence was procedurally unreasonable because the district court failed to adequately clarify the applicable guideline range, which was determined to be 210-262 months at the initial sentencing hearing.  The district court also clearly erred by finding that the defendant participated in a murder, which stipulated cell phone records made physically impossible.

 Third, the Court upheld the denial of a motion to suppress cell-site data acquired pursuant to state court orders consistent with section 2703(d) of the Stored Communications Act.  For one defendant, the Court found that he abandoned any interest in his cell phone by failing to recover the phone during the course of four years in the government’s possession.  For other defendants, the Court found that the good-faith exception to the exclusionary rule applied: with respect to cell-site data because the government reasonably relied on the state court orders, which were issued five years before Carpenter; and with respect to real-time tracking data, the legality of which remains open today.

 Fourth, the Court found no abuse of discretion in denying a peremptory strike because it violated the voir dire procedure, under which he agreed to jointly exercise peremptory strikes with the other defendants.

 Fifth, the Court found that the district court erroneously admitted testimony concerning street rumors that one of the defendants committed murder.  That testimony was not admissible under 801(d)(2)€ because the witness did not hear it from co-conspirators, only through street rumors.  However, the Court found the error to be harmless given other substantial evidence involving that defendant’s involvement in the murder.

 Based on a review of the record, the Court rejected various evidentiary claims, found the evidence sufficient, and found no error with regard to inconsistent verdicts.

Walked: Reversing Denial of Government Motion for Forfeiture in Money Laundering Case

 In United States v. Walked, No. 18-11951 (Aug. 11, 2020) (Martin, Grant, Lagoa), the Court reversed the denial of the government’s forfeiture motion.

 The Court held that, if a defendant is convicted of a money laundering scheme that caused no financial harm to an innocently involved bank, a forfeiture order is still mandatory.  Applying the mandatory forfeiture statute in 18 U.S.C. 982(a)(1), the Court concluded that there was property “involved in” the scheme.  The Court rejected the defendant’s arguments that laundered money is not “property” under the statute, and that laundered money could not be used to calculate his forfeiture obligation because the money was returned to the bank as part of the scheme.  Finally, the Court held that the district court erred by holding that the Eighth Amendment imposed a $10,000 per transaction ceiling, and the Court remanded for the district court to consider whether a $10 million forfeiture award violated the Eighth Amendment.

 Judge Lagoa concurred in part and dissented in part.  She disagreed with a portion of the majority opinion suggesting that the government was entitled to substitute asset forfeiture under 21 U.S.C. 853(p), as the government had not sought forfeiture under that statute.  And because the district court had not yet made factual findings on the Eighth Amendment issue, she would not opine on whether a $10,000 per transaction maximum was excessive.

Henry: Downward Adjustment Under USSG 5G1.3(b) is Mandatory Notwithstanding Booker

 In United States v. Henry, No. 18-15251 (Aug. 7, 2020) (William Pryor, Grant, Antoon), the Court vacated the district court’s refusal to adjust the defendant’s sentence under USSG 5G1.3(b) based on time served on a related state case.

Although there was no dispute that the criteria for an adjustment under 5G1.3 were satisfied, the district court refused to apply it because it determined that the Guidelines were advisory.  Disagreeing with other circuits, the Eleventh Circuit reached the contrary conclusion, holding that an adjustment under 5G1.3 is mandatory, notwithstanding Booker.  The Court reasoned that Booker rendered advisory only the Guideline provisions that relate to the guideline range.  But 5G1.3 relates to the imposition of the sentence and comes in to play only after the guideline range has been determined.  And because its application can only reduce (not increase) the defendant’s sentence, treating it as mandatory does not violate the Sixth Amendment.

Knights: Encounter Between Officers and Defendant Was Consensual, Not a Seizure

In United States v. Knights, No. 19-10083 (Aug.  3, 2020) (William Pryor, Rosenbaum, Michael Moore), the Court upheld the denial of a motion to suppress.

Officers parked a patrol car close to the defendant’s car and then approached him.  The Court held that this was a consensual encounter that did not rise to the level of a seizure because a reasonable person would have felt free to leave.  In fact, the defendant’s companion ignored the officers and left, and the defendant could have also driven away.  The officers did not display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Nor did they activate their lights or siren.  The defendant was free to abandon his car in a high-crime area because two officers were there, and he could have returned when they left, and the officers’ use of a flashlight to did not communicate a show of authority.

Competa: No Additional Competency Hearings Required Before Trial and Sentencing

In United States v. Cometa, No. 19-11282 (Aug. 3, 2020) (William Pryor, Rosenbaum, Luck), the Court upheld the denial of additional competency hearings before trial and sentencing.

The Court found no abuse of discretion because an expert opined that he was competent before trial.  And the defendant’s continued understanding of the proceedings, ability to consult with counsel, and ability to assist with his defense established that there was no bona fide doubt about his competency after the district court initially found him competent.