Eleventh Circuit Court of Appeals - Published Opinions

Monday, June 28, 2021

In re Grand Jury Subpoena: Upholding Order Compelling Attorney Grand Jury Testimony Based on Crime-Fraud Exception to Attorney-Client Privilege

In In re Grand Jury Subpoena, No. 21-11596 (June 25, 2021) (Jordan, Newsom, Lagoa), the Court upheld an order granting the government’s motion to compel an attorney’s testimony to a grand jury.

The attorney was the lawyer in charge of the campaign of a political candidate who was under criminal investigation.  While the attorney claimed that his testimony was protected by the attorney-client privilege, the Court agreed with the district court that the communications fell into the crime-fraud exception to the privilege.  First, the Court held that the government made a prima facie showing of federal wire fraud by the candidate stemming from the diversion of, and failure to report, funds solicited by and donated to the campaign.  Second, the Court held that the attorney’s communications with the campaign were sufficiently related to the wire-fraud scheme.  Although courts have articulated different standards of relatedness, the more restrictive standard—requiring the communications to have furthered the criminal purpose—was met here because the lawyer was aware of the personal expenditures and then revised and reviewed the misleading disclosure forms.

Monday, June 21, 2021

Henry: Adjustment for Undischarged State Sentence Under USSG 5B1.3(b) is Advisory, Not Mandatory

In United States v. Henry, No. 18-15251 (June 21, 2021) (William Pryor, Grant, Antoon (MD Fla)), the Court vacated the panel opinion upon a petition for rehearing by the government and affirmed the defendant’s sentence.

Contrary to the panel’s original opinion, the panel now held that USSG 5G1.3 is advisory, not mandatory.  After Booker, all Guidelines are advisory.  There is no distinction between Guidelines that affect the sentencing “range” and those that affect the “kind of sentence” available.  While the district court needed to consider 5G1.3(b) when determining the sentence recommended by the Guidelines, it was then free to exercise its discretion to impose the sentence it deemed appropriate under 3553(a).  And, in any event, because the district court considered 5G1.3 and said it would impose the same sentence regardless, any error was harmless.

Chief Judge Pryor, author of the original panel opinion, dissented.  Elaborating on his original opinion, he maintained that, under circuit precedent, 5B1.3(b) is mandatory, and that precedent was correct because it involves the imposition of the sentence, not the calculation of the guideline range.  He also disagreed that any error here was harmless because 5G1.3(b) involves a back-end adjustment to the sentence.

Thursday, June 17, 2021

Nunez: Affirming Title 46 Convictions Over Various Challenges and Clarifying that Identity of Controlled Substance is Not an Element

In United States v. Nunez et al., No. 19-14181 (June 17, 2021) (William Pryor, Grant, Tjoflat), the Court affirmed the defendants’ MDLEA convictions.

First, the Court held that there was jurisdiction because the vessel was one without nationality.  The “vessel without nationality” definitions in the statute were not exclusive, and the vessel here lacked nationality because it carried no documents, flew no flag, had no name or numbers, and nobody on the vessel claimed that it had nationality or registry.  In addition, nobody claimed to be the master or captain, and the smugglers all played equal roles.  The Court rejected the argument that this meant they were all in charge or took turns at being in charge.  The Court also rejected a Second Circuit decision, which concluded that jurisdiction was lacking when three men, none of whom claimed to be the master, were not asked for a claim of nationality or registry.

Second, the Court held that the district court was not required to hold an evidentiary hearing on jurisdiction under either the Confrontation Clause or the statute.  In this case, the smugglers did not identify any facts that they sought to contest or additional facts they sought to introduce.  Nor did the they suffer any prejudice by the district court waiting until the end of the trial to make a final determination about jurisdiction.

Third, sufficient evidence supported the convictions.  The Court clarified that its decision in Narog, which required the government to prove knowledge of the particular controlled substance alleged in the indictment, was contrary to earlier precedents and therefore is not good law.  The identity of the controlled substance is not an element of the offense.

Finally, the Court rejected the argument that the district court deprived the defendants of their right to a complete defense when it prohibited them from cross-examining the government’s witnesses about more than the basic details of their 10-day outdoor confinement on the vessel.  That evidence was cumulative to evidence already admitted, and any error was harmless.

Tuesday, June 15, 2021

Anderson: Upholding Shrimping Fraud Convictions Against Multiple Challenges

In United States v. Anderson, No. 18-13947 (June 15, 2021) (Wilson, Branch, Julie Carnes), the Court affirmed the defendant’s mail fraud, false statements, and money laundering convictions.

First, the Court held that the district court did not err by asking the defendant whether he knew that he had a right to testify and whether he wished to do so or waive the right.  Although not required, the court’s straightforward and neutral inquiry did not violate his right to testify.  Nor did it render his counsel ineffective by asking what choice the defendant had made.  The colloquy, which did not probe questions of strategy or suggest the court’s own preference, vindicated rather than violated his constitutional rights.

Second, the district court did not abuse its discretion by failing to give a requested instruction on a particular statute that he was not charged with violating.  Failure to give the instruction did not impair the defense, and the defendant was otherwise free to pursue his defenses without impediment.

Third, the Court found no reversible error under Rule 30(b) where the district court amended an erroneous draft jury instruction for mail fraud after the defendant’s closing argument.  The Court found no unfair prejudice, as the instructional issue had nothing to do with the theory of defense or any critical strategic decisions relating to closing argument.  Nor was reversal required by the court’s failure to give a curative instruction to a brief comment by the prosecutor suggesting that defense counsel had been misleading in closing.

Finally, the district court did not plainly err by giving a modified Allen charge similar to the pattern instruction.  The instruction was not impermissibly coercive because the deviation from the pattern, which had been upheld previously, consisted of only minor word changes.

Friday, June 11, 2021

Montenegro: Upholding Enhancement Under 2D1.1(b)(1) for Possession of Firearm

In United States v. Montenegro, No. 19-13542 (June 11, 2021) (Branch, Grant, Tjoflat), the Court upheld an enhancement under USSG 2D1.1(b)(1) for possessing a firearm.

The Court held that the government met its burden by showing that the gun was present at the site of the drug possession charge.  The burden therefore shifted to the defendant to prove that the connection between the gun and drugs was clearly improbable, and the defendant could not meet his heavy burden to do so.  Although he did not have the gun with him during drug transactions, the gun was present in the home with the drugs that he was convicted of possessing with intent to distribute.  Although the government agreed at sentencing that the enhancement did not apply, it was up to the district court to calculate the guidelines, and nothing prohibited the government from reversing position on appeal.

In footnote 3, the Court held that the defendant failed to preserve his objection to the district court’s failure to grant him a two-level safety-valve reduction.  By raising that issue in one sentence in his initial brief, and by failing to devote a discrete section of his argument to it, he failed to sufficiently raise the error on appeal.  And while the defendant did make substantive arguments about it in his reply brief, the Court does not consider arguments raised for the first time in reply.