Conage: Fla. Stat. 893.135 Trafficking Is a "Serious Drug Offense" Under the ACCA

In United States v. Conage, No. 17-13975 (Sept. 30, 2022) (per curiam), the Court affirmed the defendant’s ACCA sentence based on a prior drug trafficking conviction under Fla. Stat. 893.135.

The defendant argued that his prior conviction was not a ACCA “serious drug offense” because 893.135 can be committed by purchase, whereas the ACCA requires possession with intent to distribute.  In a prior opinion, the Eleventh Circuit certified a question to the Florida Supreme Court about whether “purchase” under 893.135 necessarily required actual or constructive possession.  The Florida Supreme Court held that it did.  In light of the Florida Supreme Court’s opinion, the Eleventh Circuit rejected the defendant’s argument and affirmed his ACCA sentence.

Grushko: Upholding Access Device Fraud Convictions/Sentences Over Various Challenges

In United States v. Grushko, No. 20-10438 (Sept. 23, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the defendants’ convictions and sentences for conspiracy to commit access device fraud.

First, the Court held that officers did not violate the Fourth Amendment by entering the defendants’ home after detaining them outside.  Under the totality of the circumstances, the officers had reason to believe that one of the defendants was still inside the home because they did not know the identity of the men they had detained.  Although they had previously seen a picture of the defendant, his appearance had since changed, and the officers were not permitted to look through the wallets of the men because they were not under arrest.  And the officers heard noises from inside the home, and so had reason to believe that the defendant was still inside.

Second, the district court did not abuse its discretion in making comments to the voir dire panel about types of forensic evidence that might be seen on TV.  Although the statements were unnecessary and unwise, it was not reversible error because the court did not suggest that the government did not have to prove the elements or was relieved its burden of proof.  Nor did the statements create a mandatory presumption in favor of the government or entitle the jury to discount the defendant’s arguments in closing about whether the absence of fingerprint evidence created a reasonable doubt.

Third, as for the sentences: it was not impermissible double counting to apply a two-level enhancement for possessing device-making equipment just because that conduct underlied the conviction; there was no clear error in applying an aggravating-role enhancement because the defendants were organizers and leaders of the scheme, which involved another participant, and it did not matter if the two defendants were equally culpable; the district court adequately explained the sentence, and so it was not procedurally unreasonable; and any error as to the loss calculation was harmless because the court said it would have imposed the same sentence, and that sentence was not substantively unreasonable.

Judge Jordan concurred.  He joined the opinion in full, but wrote separately to emphasize that the court’s statements during voir dire were improper.

Doak: Affirming Convictions and Sentences for Transporting and Sexually Abusing Minors

In United States v. Doak, No. 19-15106 (Sept. 7, 2022) (Grant, Luck, Hull), the Court largely affirmed the defendants’ convictions and sentences for offenses involving the transportation and sexual abuse of minors.

As to the counts under 2423(a)—charging the transportation of minors with the intent that they engage in unlawful sexual activity—the defendants argued that the indictment was insufficient because it omitted the underlying state statutes prohibiting the sexual activity.  The Court rejected that argument because the specific state-law offenses are means rather than elements of a 2423(a) offense.  Thus, the state statutes did not need to be included in the indictment; including the statutory language of 2423(a) was enough.  Nor were the defendants deprived of fair notice; although it is best practice to include the state statutes, the indictment here contained key details about the defendant’s intended sexual activity. 

The Court next rejected the defendants’ sufficiency arguments.  As for the main defendant, the evidence at trial was sufficient for a jury to find that he transported the minors with an intent to sexually abuse the minors; even if he had other innocent reasons as well, that did not allow him to elude liability.  As for the co-defendant, who was convicted of aiding and abetting, the evidence was sufficient for a jury to find that she helped the other defendant transport the minors with the knowledge that he was sexually abusing them; it did not matter whether she disapproved of his conduct.

The Court next rejected the defendants’ evidentiary arguments.  First, the Court found that any error under Rule 412 in preventing the defense to offer evidence about one of the victim’s other sexual behavior was harmless; that evidence was offered to show that someone else had abuse her, but the defense was otherwise permitted to advance that theory, and the contrary evidence was substantial.  Second, the Court rejected the defendants’ argument that an FBI forensic expert’s testimony about how children process and disclose incidents of abuse was unreliable, as the expert had participated in thousands of such interviews, and the testimony helped the jury understand why the victims responded differently to the abuse.  Third, the district court did not abuse its discretion under Rule 404(b) or 403 by admitting a video of the defendant slapping the victims’ brother, since it explained why the victims felt threatened by the defendants and why they silently endured the abuse.

 

As for sentencing, the government cross-appealed the co-defendant’s statutory minimum sentence, arguing that it was substantively unreasonable.  However, the Court found no abuse of discretion: the district court did not improperly give her a lower sentence because she merely helped the main defendant as an aider and abettor; it did not overlook her own abuse of the minors and lack of remorse; and because the district court’s weighing of the 3553(a) factors was a close call, that meant there was no abuse of discretion even though the Court might have gone the other way.  In addition, the district court did not clearly err by imposing a special assessment; the defendant was not indigent because he previously failed to disclose that he owned real estate.  Finally, as to restitution, the district court properly relied on a clinical psychologist’s testimony about estimated therapy costs, but the district court erred by ordering the defendants to pay more in living expenses than what the victim herself admitted was an overestimate.