In re Grand Jury FGJ-21-01-MIA: Civil Contempt For Failing to Comply with Grand Jury Subpoena Was Not Appealable Without Accompanying Sanctions Order

In In re: Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (Jan. 31, 2023) (Wilson, Jordan, Brasher), the Court dismissed the appeal for lack of jurisdiction.

The appellant was the custodian of business entities that were served with subpoenas to appear before a grand jury, produce documents, and certify that the documents satisfied the business records exception to hearsay. The appellant moved to quash the subpoenas and asserted a Fifth Amendment act-of-production privilege.  The district court denied the motion and then held him in civil contempt after he refused to comply.  However, the district court stayed issuance of sanctions pending appeal.  Applying Eleventh Circuit precedent, and disagreeing with Second Circuit precedent, the court of appeals held that a contempt order must be accompanied by sanctions in order to be an appealable final judgment.  Accordingly, the Court dismissed the appeal for lack of jurisdiction.

King: No Plain Tapia Error Despite Referencing Need for Drug Abuse Program

In United States v. King, No. 21-12963 (Jan. 23, 2023) (Rosenbaum, Grant, Tjoflat), the Court—without oral argument—affirmed the defendant’s 36-month sentence for violating his supervised release.

The Court rejected the defendant’s arguments that his sentence was substantively unreasonable.  Although the defendant argued that the sentence was a major upward variance from the guideline range of 4-10 months, he repeatedly accepted responsibility, and he was less than a year away from completing his supervision, the district court acted within its discretion by weighing the 3553(a) factors.

Responding to the dissent’s argument, the Court found that the district court did not commit plain error by sentencing the defendant based on his need for rehabilitation, in violation of the Supreme Court’s decision in Tapia.  The defendant forfeited that issue by failing to raise it on appeal, and his argument challenging the substantive reasonableness of his sentence did not cover this procedural error.  Even assuming that the district court committed an error, it did not plainly err or violate the defendant’s substantial rights.  The district court does not violate Tapia merely by discussing how defendants would benefit from a drug abuse program after it imposes sentence; it errs only when it imposes or extends a sentence for the purpose of promoting rehabilitation, which did not clearly occur here.

Judge Rosenbaum dissented because she believed that the district court plainly erred by giving significant weight to rehabilitation when imposing the sentence.

Scott: Upholding Medicare Fraud Convictions Over Challenge that Medical Testing Was Covered

In United States v. Scott, No. 21-11467 (Jan. 20, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s healthcare fraud convictions.

First, and assuming that de novo review applied, the Court rejected the defendant’s belated challenge to the indictment on the ground that Medicare actually covered the testing he performed.  And even if it did, he would not have been entitled to dismissal of the indictment, as Medicare coverage for the particular tests would have been a factual issue to be resolved at trial, and the defendant failed to make that argument in the district court.

Second, the Court concluded that the evidence was sufficient to support the convictions.  Specifically, the Court found sufficient evidence to support his willful intent to defraud Medicare based on circumstantial evidence.

Dupree (En Banc): Inchoate Offenses are not "Controlled Substance Offenses" under the Guidelines Because the Text is Unambiguous, Precluding Deference to the Commentary

In United States v. Dupree, No. 19-13776 (Jan. 18, 2023), the en banc Court held that the definition of “controlled substance offense” in U.S.S.G. 4B1.2(b) does not include inchoate offenses like conspiracy.

In an opinion by Jill Pryor, and joined by Chief Judge Bill Pryor and Judges Wilson, Jordan, Rosenbaum, Newsom, Lagoa, and Brasher, the Court held that the definition in the text of 4B1.2(b) unambiguously excludes inchoate offenses.  Because there was no ambiguity, the Court was precluded from deferring to the commentary’s broader definition (expressly including inchoate offenses) under the Supreme Court’s recent decision in Kisor clarifying its earlier decision Stinson.

Chief Judge Pryor concurred in order to correct a common misconception.  The Guidelines’ commentary typically goes through the same notice-and-comment and congressional review process as amendments to the text of the Guidelines themselves. He encouraged the Commission to move what normally goes in the commentary into the text of the Guidelines.

Judge Grant concurred in the judgment, agreeing with the result but criticizing the majority for effectively overruling Stinson, which she viewed as distinct from the administration law cases upon which it relied.  She feared that the majority’s opinion may “unsettled much of our case law” because courts must now examine whether the text of the Guidelines is ambiguous before consulting the commentary.

Judge Luck, joined by Judge Branch, dissented.  He opined that the majority’s application of Kisor to Stinson effectively overruled Stinson, and Kisor did not apply to Stinson at all.

Oudomsine: Upholding Upward Variance in Pandemic Benefits Fraud

In United States v. Oudomsine, No. 22-10924 (Jan. 18, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s 36-month sentence for providing false information to obtain pandemic-related benefits.

The district court varied upward to 36 months from a guideline range of 8-14 months.  The sentence was not procedurally unreasonable because the district court adequately explained the variance.  The district court emphasized that the fraud was atypical compared to other fraud cases, in that the defendant used his education to steal money from a federal relief program designed to save the country during the pandemic, and the district court did not rely on any clearly erroneous facts.  Nor was the sentence was substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to deterrence since the pandemic benefits program was now over, and that the court did not “like him” because he spent much of the money to buy a single Pokemon card.  

Moran: Upholding Convictions for Attempted Child Pornography Production

In United States v. Moran, No. 21-12573 (Jan 13, 2013) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for attempting to produce child pornography.

The defendant commented on several “mom blog” posts asking mothers to display sexually explicit imagines of their young daughters.  First, the Court rejected the defendant’s sufficiency argument that he lacked the specific intent to have bloggers post child pornography because, even if that was unlikely to happen, he still could have desired that result. And that was true even if he also intended to troll people online.

Second, the evidence was sufficient to allow a jury to conclude that the defendant knew that, if produced, the child pornography he sought would travel in interstate commerce.  The Court rejected the defendant’s argument that he first had to know that his attempt would succeed.

Finally, and reviewing for plain error, the evidence was sufficient to show that the defendant took a “substantial step” toward committing the offense.

Harrison: Georgia robbery statute is divisible, and Georgia robbery by intimidation is a "crime of violence" under the enumerated offense clause

In United States v. Harrison, No. 21-14514 (Jan. 10, 2023) (Wilson, Jill Pryor, Ruiz), the Court held, on a government appeal, that Georgia’s robbery statute is divisible, and that Georgia robbery by intimidation is a “crime of violence” under the Guidelines.

First, the Court held that, under Mathis, Georgia’s robbery statute was divisible into three separate crimes: robbery by force, robbery by intimidation, and robbery by sudden snatching.  The Court reached that conclusion based on the text of the armed robbery statute, Georgia case law, and the Georgia jury instructions.  The Court rejected the Fourth Circuit’s contrary conclusion based on its reading of the jury instructions.  Having determined that the defendant was convicted of robbery by intimidation, the Court held that it was a “crime of violence” under the enumerated offense clause of the Guidelines because Georgia robbery by intimidation satisfied the “generic” definition of robbery. 

Esformes: Upholding Convictions/Sentences Over Numerous Challenges and Government Misconduct

In United States v. Esformes, No. 19-13838 (Jan. 6, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed the defendant’s healthcare fraud/kickback/money laundering convictions, as well as restitution and forfeiture awards. 

As an initial matter, the defendant’s challenges to his 20-year prison sentence were moot because President Trump commuted that part of his sentence.  The defendant also argued that the commutation prevented the government from re-trying him on one count on which the jury hung.  However, the Eleventh Circuit lacked jurisdiction to review that argument because the hung count was not part of the final judgment over which the Court had jurisdiction.

Second, the district court properly declined to dismiss the indictment or disqualify the prosecution team in light of admitted government misconduct intruding on attorney-client privilege, because the defendant could not show “demonstrable prejudice.”  Circuit precedent foreclosed any presumption of prejudice, and the defendant did not make any effort to show prejudice, which the district court found did not exist because the privileged materials did not form the basis of the charges, were not admitted at trial, and did not give the government any strategic advantage.  Whether the prosecutors acted in bad faith was not relevant.

Third, federal prosecutor Elizabeth Young did not have a conflict of interest.  Her professional interest in avoiding and challenging sanctions did not make her an “interested prosecutor” that required her recusal.  And she did not violate the advocate-witness prohibition by participating in the hearing on the motion to disqualify her.  The defendant invited any such error by calling her to the stand.  And, in any event, this argument would fail because she was not testifying to the jury about the charges but rather to the magistrate judge about her own investigatory work.

Fourth, the district court properly admitted the government’s expert testimony.  The district court completed the Daubert evaluation before admitting the testimony, and it was not an abuse of discretion for the court to defer ruling until after the jury heard the testimony.  Nor was it an abuse of discretion to actually admit the testimony under Daubert.

Fifth, the court’s restitution order was not clearly erroneous because the loss amount was supported by record evidence.

Finally, the court’s forfeiture order was lawful because the underlying money laundering convictions were supported by sufficient evidence.  And Supreme Court precedent permitted the judge to make its own calculation of the forfeiture amount, even if it differed from the jury’s special verdict.

 

Judge Grant authored a concurrence.  Although it was harmless here (because the expert opinion was properly admitted), she opined that deferring a ruling on admissibility of expert testimony until after the jury hears it is fraught with risk and should be avoided.  

Downs: Transferring Photos from Phone to Hard Drive is "Production" Under Child Pornography Statutes

In United States v. Downs, No. 21-10809 (Jan. 6, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for producing and possessing child pornography.

First, the Court held that the evidence was sufficient to satisfy the interstate-commerce element because transferring photos from a cell phone to hard drives constituted “production,” and the hard drives were manufactured abroad.

Second, the district court did not err by discharging an impaneled-but-not-sworn jury in light of an impending storm.  Because the jury was never sworn, jeopardy never attached, and the defendant therefore had no right to have his case decided by the jury that was initially impaneled.  Nor did the district court plainly err by discharging the panel outside the defendant’s presence; the pre-trial hearing about the discharge of an unsworn jury did not implicate the Confrontation Clause or the due process right to be present in order to defend against the charges.  While Rule 43 plainly did require that the defendant be present, this error did not affect his substantial rights.

Third, the victim testified that the defendant took photos of her using a flip phone, while the forensic expert testified that the photos were taken with a particular Samsung model.  The defendant argued that, because that Samsung model was not a flip phone, the victim’s testimony was “factually impossible” and the evidence was therefore legally insufficient.  The Court rejected that argument, noting that credibility questions were for the jury to resolve, and there was no evidence about whether the Samsung model was a flip phone or not.

Ruan: Vacating Substantive 841 Convictions due to Erroneous Jury Instruction on Mens Rea

In United States v. Ruan, No. 17-12653 (Jan. 5, 2023) (Wilson, Newsom, Coogler) (per curiam), the Court affirmed in part and vacated in part the defendants' convictions.

This case was on remand from the Supreme Court, which clarified the mens rea standard for a doctor’s liability under the federal drug statute, 21 U.S.C. 841.  The Supreme Court explained that the defendant must have knowingly or intentionally dispensed a controlled substance, and knowingly or intentionally did so in an unauthorized manner.  What matters in that regard is the defendant’s subjective mens rea.  Applying that new standard to the facts of this case, the Eleventh Circuit held that the district court’s “good faith” instruction was insufficient because it did not make clear that the defendant’s subjective intent was what mattered.  As to the defendants’ substantive drug convictions, the Eleventh Circuit held that this erroneous instruction was not harmless because the jury may have convicted based on an objective reasonable-doctor standard and may not have convicted had it been properly instructed on a subjective standard.  However, the Court found that the erroneous instruction was harmless as to the remaining convictions for conspiracy to violate the Controlled Substances Act, conspiracy to commit health care fraud, conspiracy to violate the Anti-Kickback statute, conspiracy to commit mail or wire fraud, conspiracy to violate RICO, and money laundering.