Wright: Child Pornography Production Does Not Require The Minor's Active Engagement

In United States v. Wright, No. 22-12338 (Mar. 19, 2024) (Branch, Grant, Carnes), the Court affirmed Mr. Wright’s conviction, pursuant to a plea agreement, for producing child pornography in violation of 18 U.S.C. § 2251(a) and (e). 

Mr. Wright argued that § 2251(a) required proof that the minor in question had volitionally participated in the sexually explicit conduct, but that she could not have done so because she was asleep. And so, the district court violated Rules 11(b)(1)(G) and (b)(3) in accepting Mr. Wright’s guilty plea because the court neither discussed this volition requirement when instructing Mr. Wright on the charge’s nature, nor required the government to make a factual showing of volition. The Court disagreed. Section 2251, it held, did not require the minor to have been actively engaged in sexually explicit conduct. It sufficed that the minor served as the object of Mr. Wright’s sexual desire as he engaged in the conduct.

Gbenedio: Affirming Evidentiary Rulings Underlying "Pill Mill" Convictions

In United States v. Gbenedio, No. 22-12044 (Mar. 6, 2024) (CJ Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Gbenedio’s convictions and sentence for unlawful drug dispensing. The charges were based on allegations that Mr. Gbenedio, a licensed pharmacists, had operated his business as a “pill mill.” The Court addressed six issues:

First, the district court did not abuse its discretion in denying Mr. Gbenedio’s motion to dismiss. Mr. Gbenedio conceded that the indictment alleged facts about him and his pharmacy, the Controlled Substances Act, and all of the fake prescriptions that Mr. Gbenedio allegedly filled. The prosecution had no obligation to explain its legal theory as to why the prescriptions were invalid, or to provide a detailed disclosure of its evidence before the trial. And in any event, Mr. Gbenedio had learned the prosecution’s theory, including the details in a bill of particulars, as recent as one year before trial.

Second, the district court did not abuse its discretion in admitting a DEA agent’s testimony about convictions of employees from a pain clinic that was associated with Mr. Gbenedio’s pharmacy, including testimony that law enforcement learned of the pharmacy while investigating the clinic. The Court rejected argument that the testimony was offered as substantive evidence of Mr. Gbenedio’s guilt. Instead, it determined, the testimony was offered in response to questions about why law enforcement investigated Mr. Gbenedio and what the investigation uncovered. Also, the testimony caused no prejudice under Rule 403, because Mr. Gbenedio’s own counsel first presented similar testimony.

Third, the district court did not abuse its discretion in allowing lay-witness agents to testify that Mr. Gbenedio had the requisite intent, in violation of the rule prohibiting expert witnesses from opining about a defendant’s mental state. On the one hand, the testimony was based on the agents’ experiences as investigators. On the other hand, the testimony was not based on scientific, technical, or other specialize knowledge. And unlike other cases, none of the agents were described to the jury as an expert.

Fourth, the district court did not abuse its discretion in preventing Mr. Gbenedio from using an officer’s testimony to impeach a government witness’s testimony. Because the officer would have confirmed a fact that the witness had already admitted, there was nothing for the officer to contradict under Rule 608(b). Further, the officer’s and the witness’s testimonies would have been cumulative under Rule 403.

Fifth, for these reasons, there was no error—much less a cumulative one.

Sixth, the district court did not clearly err by imposing a $200,000 fine. Mr. Gbenedio’s failure to cooperate with probation’s requests for financial information permitted an inference that Mr. Gbenedio had the ability to pay a fine but was concealing assets. Mr. Gbenedio did not object to parts of the presentence investigation report where probation indication that he failed to establish his inability to pay a fine. Mr. Gbenedio’s argument that his attorney was responsible for providing requested information might have supported an ineffective-assistance-of-counsel claim. But Mr. Gbenedio failed to identify competent evidence of the attorney’s deficient performance.

Boone: Affirming 840-Month Sentence

In United States v. Boone, No. 22-11153 (Apr. 9, 2024) (Jordan, Lagoa, Hull), the Court affirmed Mr. Boone's 840-month sentence.   

Mr. Boone pleaded guilty to using a minor to produce child pornography, and distributing and possessing child pornography, in violation of 18 U.S.C. §§ 2251 and 2252A.  The PSR recommended applying a five-level increase pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and (2) Mr. Boone “engaged in a pattern of activity involving prohibited sexual conduct.”  As explained in the PSR, the pattern-of-activity enhancement applied because Mr. Boone produced child sexual abuse material on at least two separate occasions.  With a criminal history category of I and a total offense level of 43, Mr. Boone’s advisory guidelines range was life imprisonment.  Because Mr. Boone's statutory maximum sentences were 30 years for the production offense and 20 years for each of the two distribution and possession offenses, and because the statutory maximums were less than the advisory guidelines sentence of life, U.S.S.G. § 5G1.2 provided that the sentences “shall run consecutively,” which in turn yielded a total advisory guidelines sentence of 840 months.  

On appeal, Mr. Boone argued that the district court erred by (1) applying U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement based on two or three images all involving the same victim at around the same time, and (2) considering his military service as an aggravating rather than a mitigating factor in determining his sentence.  

The Court disagreed on both fronts.  With regard to the application of U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement, the Court found invited error because Mr. Boone--through trial counsel--noted agreement to the enhancement's application.  Additionally, the Court found no procedural error in applying the enhancement.  The Court reiterated that as to § 4B1.5(b)(1), it has held that the enhancement applies if the defendant engaged in prohibited sexual conduct on at least two separate occasions, regardless of whether the crimes were committed against the same victim or different victims.  The Court also found no procedural error in the district court's consideration of Mr. Boone's military service as an aggravating factor, rather than a mitigating one.        

Finally, the Court rejected Mr. Boone's substantive reasonableness challenge.  

Al Jaberi: Affirming Convictions and Sentences for Attempted Smuggling, Failure to Notify a Common Carrier, and Submitting False or Misleading Export Information

In United States v. Al Jaberi, No. 22-12852 (Apr. 5, 2024) (Lagoa, Brasher, Tjoflat), the Court affirmed Mr. Al Jaberi's convictions and sentences.

Mr. Al Jaberi was found guilty of smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1); knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped, in violation of 18 U.S.C. § 922(e); and knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts, in violation of 13 U.S.C. § 305(a)(1).  

On appeal, he first argued that there was insufficient evidence of guilt because law enforcement neither surveilled nor investigated the location where the shipping container was loaded; failed to offer evidence about any communications between him and anyone in Iraq about the firearms; and government witnesses offered inconsistent testimony about the location of the box containing the firearms.  The Court disagreed, reviewing his arguments for plain error because although he moved for a judgment of acquittal, he did so on different grounds than those raised on appeal. 

He also argued that failure to notify a common carrier and submitting false or misleading export information are both lesser included offenses of smuggling and therefore asserts that his convictions violate the Double Jeopardy Clause.  The Court disagreed, finding the error not plain, and noting that a review of the three statutes under which Mr. Al Jaberi was convicted reveals that each statute entails different elements from the others. 

Next, he argued that his due process rights were violated because the Government failed to correct false witness testimony and made prejudicial statements during opening and closing arguments.  The Court, reviewing for plain error, disagreed.  

Finally, he argued that his sentences are procedurally and substantively unreasonable because they subjected him to double jeopardy and were greater than necessary.  The Court found his sentence procedurally reasonable because there was no double jeopardy violation.  The Court also found his sentence to be substantively reasonable because the district court did not fail to consider relevant factors due significant weight, give significant weight to an improper factor, or clearly err in considering the proper factors.   

Handlon: Affirming Denial of Motion for Compassionate Release Under Old Policy Statement

In United States v. Handlon, No. 22-13699 (Apr. 3, 2024) (Rosenbaum, Grant, Ed Carnes) (per curiam), the Court affirmed the denial of a motion for compassionate release.  

Mr. Handlon moved for compassionate release, contending that his eighty-five-year-old father had severe medical issues and needed help.  He requested that he be released to spend what time he had left with his father.  The district court denied the motion because Mr. Handlon did not provide any supporting documentation regarding his father's condition or care, or whether he was the only available caretaker.  Mr. Handlon tried to provide the court with further information, which the court construed as a motion for reconsideration and denied.  

This Court noted that when Mr. Handlon filed his motion, the Sentencing Commission had not yet amended its policy statement, and the district court was bound by Bryant's holding regarding the old catchall category--"other reasons" as determined by the Director of the Bureau of Prisons--that Congress delegated the power to define what should be considered extraordinary and compelling reasons for a sentence reduction to the Sentencing Commission, not the courts.  As a result, the Court held that Mr. Handlon was ineligible for compassionate release because he failed to present an extraordinary and compelling reason for relief recognized by the Sentencing Commission’s policy statement.  That is, Mr. Handlon's need to care for an incapacitated parent was not included in the list of reasons the Sentencing Commission considered to be “extraordinary and compelling,” so his motion was properly denied.

The Court further noted, though, that since the parties litigated this case, the policy statement has been amended to include in its definitions of “extraordinary and compelling reasons” a circumstance that is closer to the ground Mr. Handlon asserted: “The incapacitation of the defendant’s parent when the defendant would be the only available caregiver for the parent.”  While it could not retroactively apply that amendment to this appeal--as urged by Mr. Handlon--the Court agreed that Mr. Handlon could file a new motion for compassionate release.   

  

Vargas: No Speedy Trial Violation With 35-Month Delay Between Indictment and Arrest

In United States v. Vargas, No. 22-10604 (Apr. 3, 2024) (Jordan, Lagoa, Marcus), the Court affirmed the district court's denial of Mr. Vargas's motion to dismiss his indictment as a result of a 35-month delay between indictment and arrest.  

Mr. Vargas was charged--in September 2018--with conspiracy to possess with intent to distribute one kilogram or more of heroin and possession with intent to distribute one kilogram or more of heroin.  He was indicted in Florida, but was living in New York at the time.  He was not arrested until nearly 3 years later.  The government made immediate attempts to arrest him--with South Florida DEA official reaching out to a number of groups with the New York Division of the DEA to assist--but its efforts stalled around September 2019.  Then, the global COVID-19 pandemic hit, and no activity in Mr. Vargas's case occurred during the first sixteen months of the pandemic.  Mr. Vargas was detained by immigration officials in New York in July 2021, released and re-arrested by the U.S. Marshals Service in August 2021, and finally arraigned in September 2021. 

Mr. Vargas moved to dismiss his indictment, claiming a violation of his right to a speedy trial on account of the delay between indictment and arrest.  The district court denied the motion, finding that the first three Barker factors did not weigh heavily against the government.  More specifically, the district court found that the government had not acted in bad faith or deliberately, but rather had been "merely negligent" in its efforts to apprehend Mr. Vargas.  

This Court agreed, finding that the first three Barker factors did not weigh heavily against the government.  It found that agents had acted in good faith and with due diligence.  Additionally, the Court noted that an emergency global health epidemic was "exactly the kind of 'complicating factor' that would reduce the government’s responsibility for a delay in making an arrest."  Evidence adduced at a hearing in the district court demonstrated that the pandemic had encumbered the government's efforts to arrest Mr. Vargas.  So, in the Court's view, a global pandemic like COVID-19 that is beyond the control of all the parties involved justifies an appropriate delay, more akin to a delay due to a missing witness.  Per the Court, even if little activity takes place for a year or two, the government will not necessarily be held responsible for the delay, as long as the government’s conduct was unintentional and in good faith, even if negligent.  The Court also found that while Mr. Vargas had timely asserted his constitutional right to a speedy trial, that did not excuse him from showing prejudice under the fourth Barker factor.  With regard to prejudice, the Court noted that any delay did not affect the evidence, the charges, the legal defenses or strategies, or any other aspect of the criminal proceedings.  

Judge Jordan concurred in the judgment.  He wrote separately to note that, with regard to the second Barker factor--the reason for the delay--the lower courts were "way too charitable in describing the government's conduct."  He specifically disagreed with the lower court's characterization of law enforcement's efforts as diligent.  Additionally, though the pandemic was a complicating factor, agents were still able to communicate with one another electronically or by phone about pending matters, and here, "[t]he record contains nothing, absolutely nothing, about any communications between agents during the pandemic."  Were he not bound by the clear error standard on appeal, Judge Jordan noted that this case presented "a set of facts [that] called for a ruling which might have a deterrent effect on government apathy."            

Alhindi: Addressing Competency Evals Under 4241

In United States v. Alhindi, No. 23-11349 (Apr. 1, 2024) (Rosenbaum, Newsom, Luck) (per curiam), the Court affirmed the district court's rulings re: competency. 

This appeal raised two questions regarding how to apply 18 U.S.C. § 4241, which sets forth the procedures for determining a defendant's competency to stand trial and addressing any incompetency.  

First, the Court held that the statute permits a court to order more than one competency hearing and commitment order for the same defendant in a single case.      

Second, the Court held that the four-month period to which § 4241(d)(1) refers is the period during which the defendant receives treatment while he is hospitalized--meaning, it begins with the defendant's hospitalization.  The Court rejected Mr. Alhindi's argument that the period begins with the entry of the commitment order.    

The Court specifically reserved for another time (in footnote 4)--in a case where it is properly presented--the issue of whether the Due Process Clause limits the time the BOP has to hospitalize a defendant following a district court's order directing it to do so.  

Judge Rosenbaum concurred, writing separately to point out that the Court's holding that the four-month time limit in § 4241(d) applies to the hospitalization period does not mean that the Attorney General has free rein under the statute to hold a defendant for an unreasonable prehospitalization period after the court has ordered commitment.  She clarified that in her view, the prehospitalization period is also subject to reasonable limitations under § 4241.  She also reasoned that the delays that the Due Process Clause may tolerate may still amount to unreasonable delay under § 4241.  She specifically pointed to the government's admission at oral argument that the average wait time over the past few years has reached as much as nine months, and noted: "That is still a long time."      

Gray: Conviction for Conspiracy to Commit a Controlled-Substance Offense Requires Proof Only that Defendant Knew He Possessed a Controlled Substance, Not that He Knew He Possessed a Certain Substance

In United States v. Gray, No. 22-13516 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court affirmed Mr. Gray’s conviction for conspiracy to commit a controlled-substance offense.

The Court rejected Mr. Gray’s chief contention: that his conviction could not stand because the government failed to prove that he knowingly possessed--as the indictment alleged--either “a Schedule II controlled substance” or, more specifically, “50 grams or more of methamphetamine.” This argument, the Court held, was foreclosed by prior-panel precedent requiring only that the government prove general knowledge to obtain a controlled-substance conviction. That the indictment listed a specific substance simply specified an element of an enhanced penalty under 21 U.S.C. § 841(b).

The Court also rejected argument concerning the district court’s denial, as untimely, of Mr. Gray’s Rule 29 motion for judgment of acquittal. It held that the denial, although erroneous, was harmless because this issue depended entirely on Mr. Gray’s knowledge argument--which the Court had rejected.

Tripodis: Government May Recommend Supervised Release Where Plea Agreement is Silent on the Matter

In United States v. Tripodis, No. 22-12826 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court upheld the supervised-release portion of the sentence for Mr. Tripodis’s general-conspiracy conviction under a negotiated plea agreement.

Mr. Tripodis argued that the plea agreement did not contemplate the imposition of supervised release, and that the government and the district therefore breached the agreement by recommending supervised release and erred by ordering it, respectively. The Court rejected both arguments. It determined that the plea agreement’s scope was unambiguous: it required only that the government recommend a total custodial sentence of sixty months. In the absence of a supervised-release provision, the government was free to recommend supervised release. The Court alternatively determined that, even if the agreement was ambiguous, extrinsic evidence reflected Mr. Tripodis’s understanding that he could be subject to supervised release. This evidence included Mr. Tripodis’s and his counsel’s statements at the initial plea entry and sentencing, Mr. Tripodis’s affirmative response to the district court’s asking if he understood that the court could sentence him to a three-year term of supervised release, and counsel’s failure to dispute the government’s argument for supervised release at sentencing.

Notably, the Court acknowledged that a defendant might be “unintentionally misled” where his plea agreement does not “explicitly state” the extent of the government’s promises to, or requirements of, the defendant. The Court therefore expressed that the government, in future cases, “should” make “clear . . . what it is promising—and what it is not—to the defendant.”