Kent: Affirming Admission at Trial as Non-Hearsay a LEO's Statement Recounting Witness Statements that Implicated Defendant

In United States v. Kent, No. 22-13068 (Feb. 26, 2024 (Wilson, Jill Pryor, Brasher), the Court affirmed Mr. Kent's conviction. 

Mr. Kent was charged with RICO conspiracy and five substantive crimes, including an attempted murder.  The government alleged that the gang Mr. Kent was allegedly a member of murdered a former gang member--Rhodes--for cooperating with the police's investigation into the attempted murder of another individual--Muhammad. Specifically, the government’s theory was that Mr. Kent and other alleged gang members believed that Rhodes told the police that Mr. Kent had attempted to murder Muhammad and, then, murdered Rhodes for that reason.  To support this theory, the government introduced an investigator’s testimony from a preliminary hearing in a related case, which identified Rhodes as cooperating with law enforcement to implicate Mr. Kent in the attempted murder of Muhammad.  By offering the testimony, the government sought to establish that other gang members present at the hearing learned of Rhodes’s apparent cooperation and murdered him because of it, i.e., the government offered the out-of-court statements for the effect they had on the listener.    

Mr. Kent challenged the admission of the above testimony, arguing it was hearsay and admitted in violation of the Confrontation Clause.  The Court disagreed, finding the testimony admissible as nonhearsay, offered for the effect it had on the listeners and not for the truth of the matter asserted.  The Court further found the testimony relevant for a non-hearsay purpose, and found that the district court took sufficient steps to ensure that the jury did not consider the out-of-court statements as substantive evidence of guilt.   

Rudolph: Holding that § 2255 Motions are Vehicles for Attacking Sentences, Not Convictions

In Rudolph v. United States, No. 21-12828 (Feb. 12, 2024) (Wilson, Grant, Brasher), the Court found Mr. Rudolph's attempts to collaterally attack his sentences barred by his plea agreement.  

In order to avoid the death penalty for setting off a series of bombs (some during the Olympics in Atlanta), Mr. Rudolph pleaded guilty to six federal arson charges and four counts of use of a destructive device during and in relation to a crime of violence.  As part of his plea deal, he waived his right to appeal his conviction and sentence, as well as his right to collaterally attack his sentence in any post-conviction proceeding, including under 18 U.S.C. § 2255.  His waiver specifically stated: "In consideration of the Government’s recommended disposition, the defendant voluntarily and expressly waives, to the maximum extent permitted by federal law, the right to appeal his conviction and sentence in this case, and the right to collaterally attack his sentence in any post-conviction proceeding, including motions brought under 28 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground."

Post-Davis, however, Mr. Rudolph filed a § 2255 motion to vacate his § 924(c) convictions and sentences because his arson offenses no longer qualified as crimes of violence.  The district court denied the motion, finding it barred by the plea agreement because "it is not possible to collaterally attack only a conviction under 28 U.S.C. § 2255, which provides an avenue to attack the defendant’s sentence."

On appeal, this Court agreed with the district court, holding that § 2255 is a vehicle for attacking sentences, not convictions, and therefore finding Mr. Rudolph's motion barred by his plea agreement.  The Court noted: "Section 2255 fundamentally remains a procedure for prisoners to challenge their sentences. That is no less true when the method of attack is to show that a conviction was illegal. Even then, a motion under § 2255 is a collateral attack on the proceeding or process of detention."  

The Court also refused to adopt a miscarriage-of-justice exception to the general rule that appeal waivers are enforceable, splitting from the First and Eighth Circuits.  And even so, the Court noted that Mr. Rudolph was not "actually innocent" of the § 924(c) convictions because actual innocence means factual innocence--that is, it is more likely than not that no reasonable juror would have convicted him. 

Finally, the Court obliquely hinted that there may be other mechanisms by which Mr. Rudolph could collaterally challenge his convictions--such as maybe remedies available at common law--but failed to specifically delineate what those mechanisms were.              

Sanfilippo: Dismissing Appeal Raising Potentially Viable SOL Defense as Waived by Guilty Plea

In United States v. Sanfilippo, No. 22-11175 (Feb. 8, 2024) (Jordan, Lagoa, Marcus), the Court dismissed Mr. Sanfilippo's appeal.

Mr. Sanfilippo appealed his conviction for wire fraud pursuant to a guilty plea.  He argued that the district court erred in denying his motion to dismiss the indictment against him because it was issued after the expiration of the federal statute of limitations under 18 U.S.C. § 3282.  More specifically, he argued that the district court misinterpreted § 3282(a), and thus incorrectly concluded that the government indicted him within the statute of limitations by filing an information.  His argument specifically relied on a case that was pending before this Court at the time of his plea--United States v. B.G.G.  At the change of plea hearing, the government noted that if it turned out that the government was in error by filing an information within the statute of limitations, Mr. Sanfilippo "would be exonerated at that point, just as a matter of fundamental fairness." The government further noted that what it would do was "allow [Sanfilippo] to withdraw his guilty plea, and then [the government] would have to dismiss the charges, because the statute of limitations had run.  Sanfilippo would be able to file a motion to dismiss based on the statute of limitations again, in which case it would be granted at that point."  

The Court held, however, that it could not resolve the statute of limitations issue raised because Mr. Sanfilippo entered an unconditional guilty plea and, therefore, waived his ability to appeal the district court's denial of his motion to dismiss the indictment. The Court reiterated that a defendant’s unconditional plea of guilty, made knowingly, voluntarily, and with the benefit of competent counsel, waives all non-jurisdictional defects in that defendant’s court proceedings.  As such, if Mr. Sanfilippo wished to preserve appellate review of the district court's denial of his motion to dismiss the indictment while pleading guilty, he should have entered into a conditional plea in accordance with Fed. R. Crim. P. 11(a)(2).  The government's statements at the change of plea hearing were insufficient to demonstrate its (and the court's) direct assent to a conditional plea.   

Judge Jordan concurred in full, but wrote separately to alert the parties that their agreement to allow Mr. Sanfilippo to withdraw his guilty plea if the Court ultimately rules against the government on the statute of limitations issue— something the district court seemed to countenance—will require traversing some tricky jurisdictional terrain.  This is so because a district court has limited jurisdiction to set aside or modify a defendant's conviction or sentence, and it does not possess inherent authority to take such action.  Judge Jordan expressed confusion over how it is that the parties believed that they would be able, months or years from now, to go back to the district court and request that Mr. Sanfilippo be allowed to withdraw his guilty plea in a closed case.  He noted the possibility of Mr. Sanfilippo seeking collateral relief, which has its own limitations period.        

Daniels: Affirming Hobbs Act Robbery Convictions and Sentence, With One Judge Noting Pattern Instruction on Identification Needs Updating

In United States v. Daniels, No. 22-10408 (Jan. 24, 2024) (Jordan, Lagoa, Marcus), the Court affirmed Mr. Daniels's convictions and sentence. 

Mr. Daniels was convicted of ten counts of Hobbs Act robbery and sentenced to 180 months' imprisonment.  

On appeal, he first argued that the district court erred by rejecting his proposed jury instruction on eyewitness identifications, taken from the Third Circuit's model instructions.  The Court disagreed, finding that the instructions given substantially covered Mr. Daniels's proposed instruction on eyewitness identifications.   

He next argued that cumulative evidentiary errors prejudiced his right to a fair trial.  Applying plain error review to the claims of evidentiary error, the Court disagreed.

He also argued that the jury lacked sufficient evidence to convict him under Count 7 of the superseding indictment.  First, he argued that no reasonable jury could find beyond a reasonable doubt that the robber in Count 7 threatened the victim with force or violence—a necessary condition for Hobbs Act robbery. Second, he argued that no reasonable jury could find, beyond a reasonable doubt, that he committed the robbery alleged in Count 7.  The Court rejected both arguments.   

Finally, he argued that his sentence was substantively unreasonable because the district court accounted for Mr. Daniels's Count 7 conviction.  The Court found this argument failed because it rested only on the assumption that there was insufficient evidence to convict him for the robbery alleged in Count 7.

Judge Jordan concurred in full, but wrote separately to urge the Eleventh Circuit Committee on Pattern Jury Instructions to revise the pattern instruction on identification to allow juries to consider, in appropriate cases, that the witness and the person identified are of different races.  He noted that the Eleventh Circuit's pattern instruction on identification has not been substantively updated since 1985, almost 40 years ago.  In his view, it is time for the Court to take account of the abundant literature on cross-racial identification and revise its instruction on eyewitness identification to permit juries to consider, in appropriate cases, that the witness and the person identified were of different races.