Goldstein: Affirming Convictions for Conspiracy and Mail, Wire, and Securities Fraud

In United States v. Goldstein, No. 18-13321 (Feb. 26, 2021) (Wilson, Branch, Julie Carnes), the Court  affirmed defendants' convictions and sentences for conspiracy, mail fraud, wire fraud, and securities fraud. 

Defendants' convictions arose from two fraud schemes: (1) a "pump and dump" market-manipulation operation where defendants artificially inflated the price of MCGI stock before selling it off for a profit; (2) a plan to sell shares of a privately-traded company, Find.com, via misleading and fraudulent representations.  The defendants proceeded to trial and were found guilty of two counts of conspiracy, two counts of mail fraud, seven counts of wire fraud, and one count of securities fraud.  Defendants were sentenced to 10 years in prison, and each ordered to pay restitution in the amount of $1.5 million.  The district court also imposed a forfeiture order against each defendant for the total amount of the proceeds: approximately $1.9 million.  The court specified, however, that the government could not recover more than the total of $1.9 million from defendants under the forfeiture order.  

First, defendants jointly challenged the admission of wiretap evidence as violative of the Fourth Amendment.  They argued that the agent's affidavit in support of the wiretap application did not establish probable cause (because any probable cause that had existed was stale) or satisfy the necessity requirement.  The Court disagreed on both fronts, and in any case, found that the good faith exception to the exclusionary rule applied.         

Second, defendants challenged the validity of the wiretap orders issued under Franks v. Delaware, which requires an evidentiary hearing when a defendant makes a substantial preliminary showing that statements or omissions made in an affidavit supporting a wiretap are deliberately false or made with reckless disregard for the truth.  The Court affirmed the district court's denial of  Franks hearing.    

Third, defendants argued that there was a material variance between the indictment's allegations concerning the Find.com scheme and the evidence the government presented at trial to prove the scheme.  The Court held that the defendants had not established a material variance, much less that any deviation between the facts alleged in the indictment and those proved at trial warranted reversal.  The Court noted that a fatal variance exists only where the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts which, although not specifically mentioned in the indictment, are entirely consistent with its allegations.  

Fourth, defendant Bercoon argued that the government engaged in prosecutorial misconduct during its closing argument by suggesting that the jury could infer his intent to commit fraud from the fact that, rather than contacting law enforcement, he had pursued another pump-and-dump scheme with a co-conspirator the day after learning that the FBI was investigating him for market manipulation.  Defendant's argument was subject to plain error review, and failed. 

Fifth, defendant Goldstein challenged the district court's denial of his motion to suppress statements he made to an SEC attorney during a preliminary, informal telephone interview.  He argued that the SEC attorney's promise of confidentiality rendered his statements involuntary.  The Court affirmed the lower court's denial of the motion to suppress because the SEC attorney testified that it was her practice to read the SEC's Privacy Act script at the beginning of every interview, which informs the witness that the SEC routinely shares information obtained from witnesses with other authorities for investigative and enforcement purposes.  

Sixth, defendant Goldstein challenged the district court's denial of his request for an evidentiary hearing to determine whether the SEC's civil investigation and the US Attorney's criminal investigations improperly merged, depriving him of his due process rights.  The Court held that the district court did not abuse its discretion in denying Goldstein's request.   

Seventh, defendants argued that the district court's $1.9 million forfeiture order improperly held them jointly and severally liable, in violation of the Supreme Court's decision in Honeycutt v. United States, 137 S. Ct. 1626, 1632 (2017).  The Court assumed, without deciding, that Honeycutt's reasoning applied to the forfeiture statute at issue here.  The Court further held that any argument that Honeycutt per se prohibits ordering joint and several forfeiture has no basis in the Supreme Court's decision.  Here, the district court did not err because it limited the forfeiture to the total amount of proceeds each defendant personally acquired.  

Finally, defendant Bercoon filed a pro se motion to dismiss his indictment, alleging prosecutorial misconduct based on what he characterized as numerous instances of the FBI agent's offering false testimony before the grand jury.  The Court found no merit in defendant's arguments.            

   

Harris: Affirming Denial of Compassionate Release

In United States v. Harris, No. 20-12023 (Feb. 26, 2021) (Jordan, Grant, Ed Carnes), the Court affirmed the denial of defendant's motion for compassionate release under 18 U.S.C. 3582(c)(1)(A).  

As an initial matter, the Court sua sponte addressed its jurisdiction to hear the case.  It held, for the first time, that 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, and is instead a non-jurisdictional claim-processing rule.

Addressing the merits of the appeal, the Court first noted that because the statute speaks permissively and says the district court "may" reduce a defendant's sentence, the district court's decision is discretionary and subject to review only for abuse of discretion. 

The Court accepted, without deciding, that medical conditions can rise to being "extraordinary and compelling" reasons warranting a sentencing reduction, and concluded that the medical conditions presented here were not.  Of the conditions presented, only hypertension appears on the CDC's list of conditions, and it appears only as one that means an adult with it "might be at an increased risk" of severe illness from COVID-19.  As a result, the Court concluded that the district court did not abuse it discretion in deciding that defendant's medical conditions were not "extraordinary and compelling" reasons to grant compassionate release.  

The Court also concluded that the district court's independent consideration of the 3553(a) factors and 1B1.13 n.1 further supported its holding that the district court did not abuse its discretion in denying defendant's motion.  

The Court noted in a footnote that it was not reaching the issue of whether a district court is required to consider 1B1.13 n.1.       

Abovyan: Affirming Convictions Relating to Healthcare Fraud and Dispensing a Controlled Substance

In United States v. Abovyan, No. 19-10676 (Feb. 22, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendant's convictions and sentences for conspiring to commit healthcare fraud, conspiring to possess with intent to dispense controlled substances, and seven counts of unlawfully dispensing a controlled substance.  

The alleged healthcare fraud scheme here involved substance abuse treatment centers, whose patients often consisted of individuals from sober homes and halfway houses.  Defendant, a physician, was hired on as the medical director of these treatment centers. 

Defendant first challenged the sufficiency of the evidence supporting his conviction for conspiracy to commit healthcare fraud.  He accepted that a healthcare fraud conspiracy existed, but that the government's evidence was insufficient to prove his knowledge of, and participation in, it.  At most, he argued, the government only showed negligent medical practices on his part, and not willful participation in a criminal conspiracy.  The Court rejected this argument, reiterating that for a defendant to be found guilty of conspiracy, the evidence need only demonstrate that he was aware of the conspiracy's essential nature, not that he knew all of its details, nor that he was a major player, nor that he had direct contact with other alleged co-conspirators.  Additionally, the government's evidence may be circumstantial.  Here, the Court found that the government introduced ample evidence to support the defendant's conviction, though said evidence was largely circumstantial.  

Second, Defendant challenged the sufficiency of the evidence as to the Controlled Substances Act counts.  These counts related to defendant's prescribing of buprenorphine, a Schedule III narcotic that requires a special license and X Number issued by the DEA when being prescribed for addiction treatment.  No special license or X Number is needed when prescribing buprenorphine for other things, like pain.  Here, Defendant argued that the government failed to prove his buprenorphine prescriptions were not for a legitimate medical purpose or were outside the scope of professional practice.  The Court disagreed.  It found that while prescribing buprenorphine without an X Number was not a per se violation of the Act, defendant prescribed it to patients for pain/withdrawal when those patients were not experiencing pain/withdrawal, and he provided no medical addiction treatment with the prescription so that his prescriptions did not serve a legitimate medical purpose. 

Third, defendant challenged, for the first time, the district court's failure to instruct the jury on the elements of substantive healthcare fraud, which was the object of the healthcare fraud conspiracy charged in Count One.  The Court rejected this argument, reasoning that an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or unreliable.  While such an error has been found to be plain in other cases, it was not so here because the court's instruction referred to the superseding indictment, which itself incorporated the statutory elements of healthcare fraud into the conspiracy charge.  Additionally, any omission did not affect the defendant's substantial rights since his theory of defense acknowledged that there was a healthcare fraud scheme.  

Fourth, defendant argued that, as to the Controlled Substances Act offenses, the court abused its discretion by declining to give his requested instruction on the difference between criminal and civil liability.  The Court found no abuse of discretion because defendant's proposed instruction was not a correct statement of the law.  

Fifth, Defendant challenged the court's instructions as they related to the X Number.  He argued that the instruction given created strict Section 841(a) liability for the violation of Section 823(g), which contains the licensing requirement for an X Number.  The Court disagreed, and found the instruction to be a correct statement of the law. 

Sixth, with regard to sentencing, defendant argued that the district court erred in calculating his advisory guidelines range based on intended loss, instead of actual loss.  He argued doing so was erroneous because his codefendants' sentences were based on actual loss, thereby creating an unwarranted sentencing disparity by using the higher intended loss when calculating his guidelines range.  The Court found no error, since U.S.S.G. 2B1.1 suggests using the greater of actual or intended loss.  Additionally, the Court found no unwarranted sentencing disparities because codefendants cooperated and pleaded; they were not similarly situated to defendant.  

Seventh, defendant argued that the district court erred in determining the amount of the intended loss because it was not supported by a preponderance of the evidence.  He argued that the court failed to make underlying findings as to the scope of the criminal activity that defendant agreed to undertake and the reasonable foreseeability of the loss amount attributed to him.  The Court rejected this argument as waived.  And, in any event, though the district court did not make individualized findings when determining reasonable foreseeability, an appellate court may affirm if the record otherwise supports the court's determination.  The record did so here.  

Finally, defendant argued that his Count Two sentence exceeded the statutory maximum penalty.  Count Two alleged that defendant conspired to distribute controlled substances spanning Schedules II, III, and IV, each of which carries a different statutory maximum penalty.  The jury reached a general verdict for Count Two and did not specify which substance was involved.  Defendant argued that therefore, he should have received the most lenient statutory maximum penalty.  Because defendant did not raise this issue before the district court, the Court reviewed for plain error.  The Court found the error to be plain, but found that it did not affect defendant's substantial rights.         

Maradiaga: Affirming Conviction for Use of Fraudulent Immigration Document

In United States v. Maradiaga, No. 19-11889 (Feb. 12, 2021) (Wilson, Lagoa, Hull), the Court affirmed defendant's conviction for use of a fraudulent immigration document, in violation of 18 U.S.C. § 1546(a).    

Defendant used an order of supervision from the Department of Homeland Security to obtain a Florida driver's license.  He was charged with one count of knowingly possessing and using a document prescribed by statute and regulation as evidence of authorized stay in the United States, specifically, an ICE order of supervision, which he knew to be forged, counterfeited, altered, and falsely made.  He proceeded to trial and was found guilty.  On appeal, he argued the following: (1) his conviction must be vacated because he was charged with and convicted of conduct that does not constitute a crime within the meaning of § 1546(a); (2) the district court's jury instruction on the elements of § 1546(a) offense constructively amended the indictment; and (3) comments by the government during closing arguments misled the jury and improperly bolstered a government witness.

As to the first issue, the Court relied upon its prior decision in United States v. Chinchilla, No. 19-10987 (11th Cir. Feb. 11, 2021), in finding that orders of supervision fall within the scope of § 1546(a).  

As to the second issue, the Court found that any error was invited because defendant proposed the very jury instruction he was challenging on appeal, and failed to object to the instruction at trial.  Additionally, were the Court to review the error, any review would be for plain error, and defendant could not show any prejudice.

As to the third issue, while the Court agreed that some of the government's statements in closing were misleading, defendant's challenge failed because he could not show prejudice.     

Chinchilla: Order of Supervision Falls Under Ambit of 18 U.S.C. § 1546(a)

In United States v. Chinchilla, No. 19-10987 (Feb. 11, 2021) (Wilson, Lagoa, Hull), the Court reversed the district court's order dismissing the superseding indictment and remanded for further proceedings. 

Defendant was charged with violating 18 U.S.C. § 1546(a) for allegedly using a fraudulent order of supervision to obtain a driver's license.  Section 1546(a) criminalizes the knowing use, attempt to use or possession of a forged, counterfeited, altered, fraudulently procured, or unlawfully obtained document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States.  An order of supervision authorizes an unlawful immigrant to be released from custody into the community and to remain living in the United States for an indefinite period of time pending removal.  Such an order may authorize an immigrant to seek employment in the United States, and various federal regulations identify orders of supervision as evidence of lawful presence in the United States for purposes of receiving Social Security and federal health care benefits.  The State of Florida also accepts from applicants seeking to obtain a Florida driver's license an order of supervision as proof of legal presence in the United States.      

Defendant moved to dismiss the superseding indictment for failing to state an offense, arguing that the term "authorized stay" means "lawful presence" in the United States and that no federal statute or regulation expressly identifies an order of supervision as "evidence of authorized stay in the United States."  The district court dismissed the superseding indictment after concluding that an order of supervision does not qualify as a document "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" as required by § 1546(a).

In reversing the district court, the Court considered the plain and ordinary meaning of the statutory language as it was understood at the time the law was enacted, and concluded that the phrase "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" refers to a  document directed by a statute or regulation as proof that its recipient has formal approval to temporarily remain in the United States.  The Court held orders of supervision to be just such a document, and therefore reversed and remanded.         

Isaac: Affirming 80-year Sentence for Producing and Possessing Child Pornography

In United States v. Isaac, No. 19-11239 (Feb. 5, 2021) (Branch, Luck, Ed Carnes), the Court affirmed defendant's convictions and 80-year sentence for producing and possessing child pornography.  

Defendant was charged with two counts of producing child pornography and one count of possessing child pornography.  He moved to suppress the evidence found on one of his cellphones, which was found in his car after he had been arrested.  Defendant argued that the warrant authorizing the search of his phone was invalid because the search of his car was an illegal search incident to arrest.  Defendant also challenged the district court's application of a two-level enhancement under U.S.S.G. 2G2.1(b)(5) because the victim was a minor in the defendant's custody, care of supervisory control; a five-level increase under U.S.S.G. 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct; and an enhancement under U.S.S.G. 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor.  Finally, defendant challenged his sentence as substantively unreasonable.   

 As to the suppression issue, the Court affirmed the district court's denial of defendant's motion to suppress the evidence from his cellphone because the cellphone was recovered pursuant to a valid inventory search.  Here, the car was impounded and searched in line with the police department's standard operating procedures ("SOP").  Per the SOP, officers may impound a car if all reasonable efforts to provide the vehicle driver with alternatives to impoundment have been unsuccessful or impractical due to time or staffing constraints, and must search and inventory a car that has been impounded.  The Court did not find any clear error in the district court's factual determinations as to this issue.

As to the custody, care, or supervisory control enhancement, the Court interpreted its application as broadly inclusive, and defined "care" to mean simply that a person is responsible for looking after the child's wellbeing, even if just temporarily.  It reasoned that because the commentary list of those who would qualify for the enhancement is nonexhaustive and the enhancement is to be applied broadly, the operative language must include defendants whose actual roles in the care of children are comparable to one or more of the commentary's examples.  The Court's reasoning is in line with reasoning from the First, Fifth, and Eighth Circuits.  Under this construction, the minor victim was under the defendant's care because defendant was no different than a temporary caretaker.       

As to the pattern of behavior enhancements, the Court found that the two separate occasions of sexual abuse established a "pattern."  

Finally, the Court found the sentence substantively reasonable because the district court carefully considered the 3553(a) factors, weighed them without making a clear error of judgment, and provided sufficient justification for the sentence imposed.  That the defendant won't live to see the end of his 80-year sentence does not establish that the sentence is unreasonable.  

         

Armstrong: Grant of Sentence Reduction Not a New and Intervening Judgment for Purposes of AEDPA's Bar on SOS Petitions

In Armstrong v. United States, No. 18-13041 (Feb. 5, 2021) (Wilson, Lagoa, Anderson), the Court held that  a sentence reduction under 18 U.S.C. Section 3582(c) does not constitute a new, intervening judgment for purposes of the bar on second or successive section 2255 motions under the AEDPA.  

Here, movant filed his first section 2255 motion in June 2014.  While that motion was pending, the district court sua sponte reduced movant's sentence based on Amendment 782 to the Sentencing Guidelines.  Following that reduction, the district court denied movant's section 2255 motion.  Movant then filed a second section 2255 motion in 2018, challenging his new sentence.  The district court denied this second section 2255 motion as unauthorized. 

The Court held that movant was required to get permission prior to filing his second section 2255 motion because it was second or successive.  It reasoned that because a sentence modification does not constitute a de novo resentencing, it does not constitute a new judgment, and therefore does not reset the count for purposes of AEDPA's bar on second or successive section 2255 motions.         

Morales: Upholding Search Under Good Faith Exception

In United States v. Morales, No. 19-11934 (Feb. 5, 2021) (Jordan, Marcus, Ginsburg), the Court upheld a search conducted pursuant to a warrant based upon the good faith exception to the exclusionary rule.

Law enforcement applied for and received a search warrant for defendant's home on the basis of contraband recovered after two trash pulls conducted three days apart.  Defendant moved to suppress the evidence recovered during the search of his home, arguing that law enforcement's affidavit in support of a search warrant did not establish probable cause because it did not explain the reasons for the trash pulls, reported only minimal amounts of marijuana, and made no mention of items linking the trash to the defendant's residence.  Defendant also argued that the affidavit deliberately or recklessly contained false information because not all the evidence described in the affidavit appeared in the photographs submitted with the affidavit, and the affidavit improperly omitted the fact that defendant's house abutted an open lot where marijuana use was common.   

The Court specifically avoided resolving the issue of whether trash pull evidence alone can support a finding of probable cause.  The Court held that even assuming the affidavit did not establish probable cause, law enforcement officers relied on the warrant in good faith, so defendant was not entitled to suppression.  Here, officers did everything they should have--obtained and relied on a warrant from a neutral magistrate and did not mislead the magistrate--so suppression would do nothing to deter future police misconduct.  No exceptions to the good faith rule applied, and law enforcement's reliance on the warrant was objectively reasonable.  In conducting its analysis of whether law enforcement's reliance on the warrant was objectively reasonable, the Court considered an unobjected-to fact from the PSI that trash pulls were conducted after law enforcement received an anonymous tip that defendant was selling narcotics from his home.     

The Court also denied defendant's challenge to the search warrant on staleness grounds.  The defendant argued that because the trash pulls were two weeks old by the time the warrant issued, the evidence was stale.  Reviewing for plain error, and finding no 11th Circuit or Supreme Court precedent holding that marijuana evidence found in two trash pulls conducted three days apart becomes stale after two weeks, the Court rejected the argument.

Judge Jordan concurred in part, and concurred in the judgment.  He joined the Court's opinion as to all but Part II.B.  He would not have considered the anonymous tip because it was not in the affidavit submitted to obtain the search warrant, the government did not disclose the tip in arguing the good-faith exception in the district court, neither the magistrate judge nor the district court relied on the tip in ruling on the suppression motion, and the existence of the tip only became known when the probation office prepared the PSI.  He reasoned that because the government bears the burden of establishing good faith, and it failed to bring the tip to the attention of the court below, it should not now benefit from its failure.            

Cannon: Upholding Convictions for Conspiracy to Commit Hobbs Act Robbery, Conspiracy to Possess with Intent to Distribute Cocaine, Using and Carrying a Firearm During a COV and Drug Trafficking Crime, and Felon-in-Possession

In United States v. Cannon, No. 16-16194 (Feb. 3, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendants' convictions for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during a crime of violence and a drug trafficking crime, and possession of a firearm by convicted felons.  All charges stemmed from a reverse stash house sting.

First, as to defendants' selective prosecution claim, the Court reiterated the "demanding" burden defendants must carry when seeking to establish a claim of selective prosecution in violation of the Constitution, and held that statistical data reflecting the treatment of only one particular group fails to meet that burden because it fails to show that similarly situated persons were treated differently.  That is, telling the court how many minorities have been prosecuted does nothing to prove how many non-minorities have not been.  The Court also reiterated that defendants' preserved only a selective prosecution claim, and not a selective enforcement claim.

Second, the Court rejected defendants' argument, raised for the first time on appeal, that the indictment was multiplicitous because it improperly charged two conspiracies when only a single conspiracy occurred.  The Court so held because the conspiracies have separate elements, and each requires proof of a fact which the other does not.       

Third, the Court rejected the defendants' argument that the creation of the stash house robbery scheme by the government constituted outrageous government conduct in violation of the Fifth Amendment.  The Court first questioned whether such a defense has ever even been recognized by the Court or the Supreme Court.  The Court then held that the government's conduct was not outrageous; merely presenting defendants with a non-unique opportunity to commit a crime, of which they are more than willing to take advantage, does not amount to outrageous government conduct.  The Court so held even though the government's CI suggested the robbery, and an undercover detective invented the idea of a stash house filled with cocaine and armed guards and offered defendants a van to use.    

Fourth, the Court affirmed the district court's decision not to give an entrapment instruction, finding that defendants failed to present sufficient evidence to create a jury issue on inducement.

Fifth, the Court rejected defendants' sentencing entrapment argument, which was raised for the first time on appeal.  The Court held that the Supreme Court's decision in Apprendi has no application to a sentencing entrapment defense.       

Sixth, the Court held that the district court did not abuse its discretion in dismissing a juror who knew the defendant's wife and styled her hair on a regular basis.  It was well within the district court's discretion to conclude that the juror's relationship to the defendant's wife was financial in nature and too close, and that this created a greater likelihood of her being influenced by her relationship to the defendant's wife.  And, in any case, defendants failed to show that the replacement of the juror resulted in prejudice requiring reversal.  

Seventh, the Court rejected defendant's argument that his right to have all proceedings in open court transcribed was violated because the court reporter failed to transcribe the recorded conversations that were admitted into evidence.  Both the recordings and corresponding written transcripts were admitted into evidence at trial, so, under these circumstances, nothing in the Court Reporter Act requires that the audio or video recordings also be transcribed by the court reporter. 

Finally, the Court considered defendants' argument that the section 924(c) count must be dismissed because one of the two predicates--conspiracy to commit Hobbs Act robbery--is an invalid predicate and the jury entered a general verdict.  The Court first agreed that it was error for the district court to deny defendants' motion to dismiss the predicate of Hobbs Act conspiracy and to submit that crime as a valid predicate in Count 3 for the jury's consideration.  In so finding, the Court cited to Stromberg v. California for the proposition that it is error to instruct a jury that it can convict on alternative theories of guilt, one of which is invalid.  Nonetheless, the Court found that the government had carried its burden in demonstrating that any error was harmless because the trial record makes clear that the two predicate conspiracy crimes were so inextricably intertwined that no rational juror could have found that defendants carried a firearm in relation to one predicate but not the other.  The Court emphasized the importance of the factual record when evaluating section 924(c) crimes after Davis through its discussion of its prior published opinions in In re Navarro, In re Cannon, and In re Gomez.     

 

      

           

Garcia: Prior Opinion Vacated

In Garcia v. United States, No. 19-14374 (Jan. 26, 2021) (Grant, Luck, Ed Carnes) (per curiam), the Court vacated its prior published opinion in Garcia v. United States, __ F.3d __, 2021 WL 68305 (11th Cir. Jan. 8, 2021), which affirmed the denial of a certificate of appealability on a Davis claim.  The petitioner's application for certificate of appealability is now being held in abeyance pending the Court's decision in Granda v. United States, No. 17-15194, and/or Foster v. United States, No. 19-14771.      

Williams: 2255 Movant Failed to Satisfy Beeman Burden Where Legal Landscape in Equipoise

In Williams v. United States, No. 19-10308 (Jan. 13, 2021) (Jordan, Lagoa, Brasher), the Court affirmed the denial of a 2255 motion challenging an ACCA enhancement in light of Johnson.    

The Court held that the movant failed to meet his burden of establishing that the sentencing court relied solely upon the residual clause, as required by Beeman.  The ACCA enhancement was based, in part, on a prior conviction for federal kidnapping, in violation of  18 U.S.C. 1201(a)(1).  The question on appeal was under what circumstances the legal landscape at the time of a defendant's sentencing can establish, as a matter of historical fact, that the sentencing court relied on the unconstitutionally vague residual clause of the ACCA to classify a prior felony as violent. 

The Court first determined, in line with the Eighth and Tenth Circuits, that de novo review was appropriate because determining the legal environment requires a legal conclusion about the controlling law at the time of sentencing.  The movant argued that the case law at the time made it unlikely that the sentencing court relied on the elements clause, citing to two Eleventh Circuit published opinions indicating the same.  In response, the government cited to a different published Eleventh Circuit opinion in support of its argument that the district court could just as likely used the elements clause to categorize the federal kidnapping conviction as violent.  The Court held that because the legal landscape was so uncertain--it provides no satisfactory answer in the movant's favor--the movant failed to meet his Beeman burden.  That is, because there is no clear precedent on point dictating a specific result, the Court would merely be guessing if it was to say that the sentencing court relied on the residual clause alone.  As a result, the movant failed to meet the Beeman more-likely-than-not standard.  If the evidence is silent or in equipoise, then the party with the burden fails.  

Judge Jordan dissented.  He noted that for a Johnson 2255 movant to succeed, he must show, by a preponderance of the evidence, that the district court relied only on the ACCA's residual clause.  But, the preponderance of the evidence standard does not require a movant to make a showing to a high degree of certainty.  Instead, the standard results in a roughly equal allocation of the risk of error between litigants.  So, a movant meets his evidentiary burden so long as the evidence tips the scales just one little bit in his favor.  Here, Judge Jordan found that movant's reliance on two binding Eleventh Circuit opinions did just that.           

Amodeo: 2241 Petition Unavailable for Actual Innocence Claim

In Amodeo v. FCC Coleman-Low Warden, No. 17-15456 (Jan. 8, 2021) (Ed Carnes, Branch, Luck), the Court affirmed the dismissal of a 2241 habeas petition claiming actual innocence.

Applying its en banc decision in McCarthen, the Court held that the petitioner’s claim could not be brought in a 2241 petition because 2255 was not an inadequate or ineffective remedy.  Because the petitioner could have brought that type of claim in an initial 2255 motion, 2255 was not inadequate or ineffective, even if procedural bars would have precluded petitioner from prevailing in a 2255 motion.  Under McCarthen, the Court explained, two categories of claims may be brought under 2241: 1) those challenging the execution of a sentence, such as the deprivation of good-time credits; and 2) those in which the sentencing court has been dissolved or is no longer available, as in the military context. 

Garcia: Denying COA in a Davis Dual Predicate Situation Based on Beeman

In Garcia v. United States, No. 19-14734 (Jan. 8, 2021) (Grant, Luck, Ed Carnes) (per curiam), the Court affirmed the denial of a COA on a Davis claim. 

Relying on Beeman, the Court held that the movant could not meet his burden to prove that his 924(o) conviction was predicated solely on Hobbs Act conspiracy.  After distinguishing In re Gomez and In re Cannon as SOS cases, the Court rejected the movant’s argument that it should assume that the 924(o) was based on the least culpable predicate, and it also rejected his reliance on Alleyne.  Although acknowledging that it was dicta, the Court applied In re Cannon’s “inextricably intertwined” analysis to conclude that he could not meet his burden to prove that his 924(o) offense was predicated solely on Hobbs Act conspiracy.  The Court did not address Stromberg or its progeny.

Kushmaul: Prior Florida Conviction for Promoting Minor Sexual Abuse Triggered CP Mandatory Minimum

In United States v. Kushmaul, No. 20-10924 (Jan. 6, 2021) (Jordan, Luck, Tjoflat) (per curiam), the Court, without oral argument, affirmed the defendant’s 15-year mandatory minimum sentence for distributing child pornography.

The district court applied the mandatory minimum because the defendant’s prior Florida conviction for promoting the sexual performance of a child related to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.  The Court found no plain error.  It rejected the defendant’s categorical-approach argument that the Florida offense was obviously broader than the federal definition because the former encompassed clothed as opposed to unclothed minors.  And because there was no precedent on point, the defendant could not show plain error.

Smith: State PD Not Ineffective When Correctly Advised Client About State Plea Deal

 In United States v. Smith, No. 19-12686 (Hull, William Pryor, Marcus), the Court affirmed the defendant’s felon-in-possession conviction and sentence.

As to the conviction, the defendant argued that his state public defender was ineffective during state plea negotiations, and that the federal indictment should be dismissed.  Assuming without deciding that the Sixth Amendment attached during state plea negotiations, the Court determined that there was no ineffective assistance of counsel.  There was no deficient performance because the state public defender correctly communicated, and reasonably advised the client to accept, the state prosecutor’s 5-year plea deal, which would have resulted in the federal prosecutor dropping the federal charge carrying a 15-year mandatory minimum.  And there was no prejudice because the client was adamant that he would not have accepted a 5-year deal in state court because he wanted to go to trial, and he believed that the federal prosecutor was bluffing about filing charges.

As to the sentence, the Court affirmed the ACCA sentence because its prior precedent in Smith established that Florida sale of cocaine under 893.13 was a “serious drug offense.”

Santos: 2255 Movant Could Not Satisfy Burden Under Beeman to Show Reliance on Residual Clause

In Santos v. United States, No. 17-14291 (Marcus, William Pryor, Hull), the Court affirmed the denial of a 2255 motion challenging an ACCA enhancement in light of Johnson.

The Court held that the movant could not meet his burden to establish that the sentencing judge relied solely on the residual clause, as required by Beeman.  The ACCA enhancement had been based in part on a prior Florida battery conviction.  However, the sentencing record was silent as to which definitional clause was used, and the case law at the time of sentencing would have allowed the judge to impose the enhancement under either the residual clause and the elements clause.  Finally, although the district court denied the motion before Beeman was decided, the Court determined that a remand would be futile.  Unlike the Eleventh Circuit’s earlier decision in Pickett, the district court here had already made a finding that the record was unclear as to which clause had been used, and the district court handling the 2255 motion was not the original sentencing judge.  Thus, the Court did not decide whether the “touch or strike” aspect of Florida battery was divisible, and it stated that this question remains an open one.

Taylor: Dual-Object Drug Conspiracy Including Crack Element is a "Covered Offense" Under Section 404 of the First Step Act

 In United States v. Taylor, No. 19-12872 (Grant, Marcus, Axon (N.D. Ala.)), the Court vacated the denial of a  motion for a reduced sentence under Section 404 of the First Step Act.

 The Court held that a dual-object drug conspiracy count including both a crack and a powder element is a “covered offense.”  Even though the Fair Sentencing Act did not modify the statutory penalties for the powder offense, it did modify the statutory penalties for the crack offense.  And that satisfied the “covered offense” definition in Section 404(a).  The district court therefore had discretion to reduce the sentence, though it is not permitted to conduct a plenary or de novo re-sentencing proceeding, and it cannot reduce the sentence based on changes in the law beyond those mandated by the Fair Sentencing Act.   

Graham: Upholding Conviction Under Marinello for Obstructing IRS Collection Action

 In United States v. Graham, No. 18-15299 (Dec. 4, 2020) (Grant, Marcus, Julie Carnes), the Court affirmed the defendant’s conviction for obstructing the IRS.

In addition to proving that the defendant knowingly and corruptly tried to obstruct or impede the administration of the tax laws, the Supreme Court’s decision in Marinello also required it to prove a nexus between the defendant’s conduct and a particular administrative proceeding.  The Court held that the IRS’s extensive collection activities qualified as such a proceeding, and there was otherwise sufficient evidence to support the conviction based on the defendant falsifying a bill of exchange to the IRS.

The Court also rejected the defendant’s evidentiary challenges.  It reviewed the exclusion of evidence for plain error because he failed to make a proffer about what the evidence would show.  First, the Court found no plain error in limiting a defense witness’ testimony because  the defendant was permitted to present his defense, and he failed to draw a connection between that defense and the limits placed on the witness.  Second,  there was no error under Rule 404(b) in admitting the defendant’s prior misdemeanor conviction for failing to file a tax return.  Third, there was no plain error in striking an answer the government’s expert gave on cross-examination because it did not affect his substantial rights.  And, finally, there was no error in excluding evidence of the defendant’s other efforts to comply with the IRS because good character evidence is inadmissible.

 

Watkins: Reversing Order Granting Suppression Based on the Inevitable Discovery Exception

In United States v. Watkins, No. 18-14336 (Dec. 3, 2020) (Ed Carnes, Luck, Marcus), the Court reversed an order granting the defendant’s motion to suppress on the government’s appeal.

The government conceded that it violated the Fourth Amendment when a GPS tracking device placed inside an intercepted package re-activated inside the defendant’s home.  However, the Court concluded that the inevitable discovery exception to the exclusionary rule applied.  The Court reasoned that, based on leads and evidence already in the agents’ possession, there was a reasonable probability that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result.  The district court erroneously disregarded the magistrate judge’s credibility findings without holding a new hearing.

Johnson: Upholding 922(g)(9) Conviction Against Rehaif Challenge

In United States v. Johnson, No. 19-10915 (Rosenbaum, Martin, Tallman (CA9)), the Court affirmed the defendant’s conviction under 18 U.S.C. 922(g)(9) for being a domestic-violence misdemeanant in possession of a firearm.

In a lengthy opinion, the Court held that, after Rehaif, the defendant must know three things to violate 922(g)(9): 1) he was convicted of a misdemeanor; 2) to be convicted of that crime, he had to knowingly or recklessly use at least the “slightest offensive touching”; and 3) he knew that the victim was his spouse.  Those are the facts that render his offense a “misdemeanor crime of domestic violence.”  And because the record—namely, a bench trial stipulation and undisputed PSI facts about a prior Florida battery conviction—established the defendant’s knowledge of all three points, he could not show that his substantial rights were affected under the third prong of plain-error review.   Because he knew the facts that established his unlawful status, it was no defense that he did know that status prohibited his firearm possession.  Nor was it a defense that his civil rights were never abrogated.  The Court also found no plain error with respect to the defendant’s equal protection and commerce clause claims.

Judge Martin dissented.  She believed that Rehaif requires the government to prove that the defendant knew his conviction qualified as a “misdemeanor crime of domestic violence” under federal law.  She also believed that the government must prove knowledge of that status as the time of the firearm possession; by referring only to the stipulation and PSI facts, the majority instead looked to the defendant’s knowledge of that status at the time of the federal trial.  Finally, she believed that, given the absence of such knowledge and the complexity of the “misdemeanor crime of domestic violence” analysis, plain error was satisfied, and the majority created a split with a Seventh Circuit decision.

Bobal: Supervised Release Condition Banning Computer Use for Life Not Plainly Unconstitutional After Packingham

In United States v. Bobal, 19-10678 (Nov. 30, 2020) (William Pryor, Hull, Marcus), the Court affirmed the defendant’s enticement conviction and lifetime supervised release condition prohibiting him from using a computer.

As for the conviction, the Court held that the district court did not abuse its discretion by denying a motion for a mistrial based on the prosecutor’s comments at closing.  The comments were not improper and did not substantially affect the verdict.

As for the supervised release condition, and applying plain error, the Court found that the lifetime computer restriction was not plainly unconstitutional in light of Packingham.  The Court found that Packingham was distinguishable because it applied to those who completed their sentences, it applied even to sex offenders who did not use a computer to commit the offense, and the restriction here contained an exception for work.  The Court joined three other circuits who have found no plain error in a similar restriction, and it rejected a Third Circuit opinion that ruled that blanket computer restrictions would rarely be permissible after Packingham.

Trader: No Reasonable Expectation of Privacy in Email/IP Addresses Post-Carpenter

In United States v. Trader, No. 17-15611 (Nov. 25, 2020) (William Pryor, Hull, Marcus), the Court affirmed the defendant’s enticement conviction and life sentence.

First, the Court held that the Supreme Court’s decision in Carpenter did not establish a reasonable expectation of privacy in email addresses or IP addresses.  The Court held that the third-party doctrine applied because the defendant affirmatively and voluntarily conveyed that information when he downloaded and used an app.  The Court rejected the defendant’s argument that email and IP addresses are akin to cell phone or location records, as neither directly records an individual’s location and is only incidentally associated with cell phones.

Second, the Court held that, based on the totality of the circumstances, the warrant application established probable cause to believe that the defendant’s home contained evidence of a crime.

Third, the Court held that the life sentence was not substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to the guidelines and too little weight to his redeeming qualities.

Shah: No Proof of Motive Required for Conviction to Accept Healthcare Kickbacks

In United States v. Shah, No. 19-12319 (William Pryor, Hull, Marcus), the Court affirmed the defendant’s conviction for receiving healthcare kickback payments.

The parties ultimately agreed that the statue requires no proof of the defendant’s  motivation for accepting the kickbacks, so long as he accepts it knowingly and willfully.  The Court agreed, though it distinguished the case of a payee (no motive required) from that of a payor (motive required).  Although the jury instruction in this case was erroneous, the Court found that the error was harmless because, if anything, the instruction harmed the government by requiring the government to prove more than what was required, and the district court properly instructed the jury on willfulness.

Delgado: Upholding Drug and Silencer Convictions

In United States v. Delgado, No. 19-11997 (Nov. 23, 2020) (Baker (S.D. Ga.), Newsom, Branch), the Court affirmed the defendant’s drug and silencer convictions.

First, the Court concluded that a search warrant was supported by probable cause to believe that there would be drugs in the defendant’s home.  Authorities intercepted packages from overseas that were addressed to the defendant at his residence; it didn’t matter that the packages were not actually delivered.  And, in any event, the good faith exception applied.

Second, the district court did not clearly err by considering as relevant conduct another package that was addressed to the defendant, even though it was the subject of a count that was dismissed.  The Court found it unnecessary to determine whether the Supreme Court’s decision in McFadden applied to relevant conduct for sentencing purposes because the government proved by a preponderance of circumstantial evidence that the defendant knew the package contained a controlled substance.

Finally, the district court did not clearly err by imposing an enhancement in USSG 2D1.1(b)(1) for possessing a firearm in connection with a drug offense.  There were numerous firearms and silencers found at the home with the drugs, and the defendant could not meet his burden to establish that their connection was improbable.

Gonzalez: Upholding Denial of Coram Nobis as Untimely Due to Tactical Delay

In Gonzalez v. United States, No. 19-11182 (William Pryor, Hull, Marcus) (Nov. 20, 2020), the Court affirmed the denial of a petition for coram nobis as untimely.

The petitioner sought relief after removal proceedings were commenced, arguing that he received ineffective assistance of counsel about the immigration consequences of his criminal conviction from over a decade earlier.  Reviewing for clear error, the Court upheld the district court’s determination that the petitioner failed to provide sound reasons for delay.  The Court found it fatal that the petitioner’s counsel made a tactical decision to delay because he did not believe that petitioner would actually be removed under the immigration policy then in effect.

Johnson: No Plain Error in Refusing to Move for Third Acceptance Point Due to Pre-Plea Obstruction

In United States v. Johnson, No. 17-15259 (Nov. 19, 2020) (Julie Carnes, Marcus, Kelly (CA10)), the Court affirmed the defendant’s sentence.

First, the Court found no clear error in holding the defendant accountable for more than 400 grams of marijuana for purposes of USSG 2D1.1.  To the extent the district court relied on hearsay about the weight of marijuana per shipment, that hearsay was sufficiently reliable.

Second, the Court found no clear error in applying an obstruction enhancement where the defendant used discovery from the case to threaten potential witnesses.  The Court rejected his argument that the enhancement applied only to conduct attempting to hinder an investigation.  And it did not matter that the threats were not communicated directly to the witnesses.

Third, the Court found no clear error in applying an enhancement because he committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.  The defendant made more money from the drug operation than he did from any legitimate employment, and he earned more than minimum wage.  The Court rejected the defendant’s argument that the livelihood enhancement did not apply whenever the defendant had some legitimate employment.

Fourth, the district court did not plainly error by sua sponte denying the defendant a third point off for acceptance of responsibility.  The government failed to move for the third point because the defendant obstructed justice before making his guilty plea.  The Court engaged in a lengthy discussion of the case law about when the government may refuse to move for a third point—whether it may be withheld only where the acceptance is untimely, or whether it may also be withheld where the defendant engages in conduct inconsistent with USSG 3E1.1.  Although it was clear that the government cannot withhold due to a defendant’s refusal to waive his appellate rights, little else was clear in this Circuit, and there was no consensus in other circuits.  Accordingly, the defendant could not show plain error.

Finally, the Court found that the defendant’s low-end 151-month sentence was not substantively unreasonable.  The Court rejected the defendant’s unwarranted disparity argument, finding that his co-defendants were not similarly situated. 

Senter: Vacating Denial of 2255 For Failure To Address Johnson/ACCA Claim

In Senter v. United States, No. 18-11627 (Nov. 13, 2020) (Baker (S.D. Ga.), Newsom, Branch), the Court vacated the denial of a 2255 motion based on Johnson.

In his 2255 motion, the movant argued that his 1988 Alabama attempted robbery offense was a non-existent offense under state law, and it therefore did not satisfy the ACCA’s elements clause because it did not have any elements at all.  The district court, however, mischaracterized that claim as a collateral attack on the validity of the state conviction.  Because the district court failed to address the movant’s ACCA/Johnson claim, the Eleventh Circuit vacated and remanded for the district court to do so in the first instance.

Judge Branch dissented, opining that the district court adequately addressed the movant’s claim.

Joseph: Affirming Heroin Convictions Over Various Challenges

In United States v. Joseph, No. 19-11198 (Oct. 27, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s drug convictions and sentence.

First, the Court upheld the denial of a motion to suppress.  An officer testified that he saw drugs inside the car and, although two witnesses testified that they could not see through the tinted, the district court did not clearly err by crediting the officer’s testimony.

Second, the Court found no error in the district court’s denial of three motions for mistrial.  The prosecutor’s reference to the defendant’s false identity did not warrant a mistrial because it was inextricably intertwined with the drug offense and thus admissible at trial.  An officer’s testimony about the dangers of fentanyl did not violate Rule 403.  And an outburst by the defendant’s brother at trial did not warrant a mistrial because the jurors who saw it said they could still be fair and base their verdict only on the law and evidence.

Third, the Court found no reversible evidentiary error.  DNA evidence did not reveal that the defendant engaged in identity theft.  And a rental application qualified as a business record because, although the testifying witness was not the record custodian for the business, she was still a qualified witness.

Finally, the defendant’s 20-year guideline-range sentence was not substantively unreasonable.  Contrary to the defendant’s argument, the court presumed that the defendant was innocent of a pending firearm charge, and it declined the government’s request for a variance based on evidence of identity theft.

Wilson: Upholding Conviction for Possession of Unregistered Sawed-off Shotgun

In United States v. Wilson, No. 17-12379 (Oct. 27, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for possession of an unregistered sawed-off shotgun.

First, the Court held that the district court had subject matter jurisdiction over the prosecution, holding that the National Firearms Act does not violate the Second or Tenth Amendments.

Second, the Court held that the evidence was sufficient to support the conviction.  The Court clarified that the government was required to prove that the defendant was aware of any feature of the weapon that subjected it to registration.  Here, the evidence established that the defendant knew that his shotgun was either was less than 26 inches long or had a barrel of less than 18 inches, and that he knew it was not an antique.

Third, the Court upheld the denial of a motion to suppress evidence discovered during a traffic stop.  After making a valid stop traffic stop, the officer was allowed to arrest the defendant because there was probable cause to believe that the defendant committed a criminal offense, namely refusing to comply with a lawful order to produce his driver’s license.  The Court also found that the subsequent search of the vehicle was a lawful inventory search because the police standard operating procedures mandated towing and impounding where the operator is arrested or the car created a traffic hazard, both of which existed here.

Fourth, the Court held that the defendant knowingly and voluntarily waived his right to counsel at trial.  And, in any event, there was no prejudice on the facts here.

Finally, the Court upheld a sentencing enhancement under USSG 2K2.1(a)(4)(B) for being a “prohibited person” under 922(g).  The evidence showed, and the defendant did not dispute, that he was an unlawful user of marijuana at the time he committed the offense.  The government did not need to show that he was under the influence at the time he possessed the gun.

 

Bazantes: Affirming False Payroll Convictions But Vacating Loss Enhancement

In United States v. Bazantes, No. 17-15721 (Oct. 26, 2020) (Ed Carnes, Branch, Tjoflat),  the Court affirmed the defendants’ false statement convictions but vacated their sentences.

The defendants first argued that certified payroll forms containing false statements were not  made or used in a matter within the jurisdiction of a federal agency.  The Eleventh Circuit rejected that argument because federal law, the Copeland Act, covers statements in payroll records that government contractors and subcontractors must furnish to the agency in charge of the project.

The defendants next argued that the indictment and the evidence failed to charge or establish that the false payroll records were material.  The Court held that the indictment sufficiently alleged materiality even though the records were not submitted directly to the decision-making body they had the potential to influence.  And the Court held that the evidence was sufficient because it established that the records had the potential to influence the federal agency, even though they were not directly submitted to that agency.

The Court vacated the loss enhancement at sentencing because the government failed to prove that there was any pecuniary loss to the agency.  While the fraud compromised the integrity of the government contracting process, that did not establish a financial loss.  And the agency ultimately received the full, bargained-for benefit of the defendants’ labor.  The Court rejected the argument that the defendants’ gain could be used instead of loss where there was no actual loss; personal gain can be used only where there is a loss that cannot be reasonably determined.

Muho: Upholding Fraud Convictions and USSG 2B1.1(b)(17)(A) Enhancement

In United States v. Muho, No. 18-11248 (Oct. 22, 2020) (Watkins (M.D. Ala.), Martin, Newsom), the Court affirmed the defendant’s fraud convictions and sentence.

First, the district court did not err in failing to sua sponte reinstate counsel for the defendant after he validly invoked his right to self-representation.

Second, the district court did not abuse its discretion by denying a Rule 17(b) motion to subpoena two witnesses.  Although the district court did not explain its denial, the Court affirmed because the defendant failed to articulate specific facts to show the relevancy and necessary of the witness’ testimony.  In any event, the error was harmless due to the weight of the evidence and the defendant was able to present the defense that would have been supported by the two witnesses.

Third, in an issue of first impression, the Court upheld a two-level enhancement under USSG 2B1.1(b)(17)(A) for deriving more than $1 million in gross receipts from a bank as a result of the offense.  In a lengthy discussion, the Court held that, in a case involving property held by a financial institution for a depositor, the enhancement applies if the institution has rights in the property and was victimized by the offense conduct.

Finally, the Court held that the defendant’s 264-month sentence, which was below the guideline range, was not substantively unreasonable.

Grow: Affirming Healthcare Fraud Convictions but Vacating Dual-Object Conspiracy Sentence

In United States v. Grow, No. 18-11809 (Oct. 21, 2020) (Luck, Ed Carnes, Marcus) (per curiam), the Court affirmed the defendant’s convictions but vacated his sentence.

First, the Court that the evidence was sufficient to support convictions for conspiracy to commit healthcare and wire fraud, substantive healthcare fraud, paying and receiving illegal kickbacks, and money laundering.

Second, the Court rejected that the defendant’s argument that a district court’s jury instruction was coercive.  On Friday, the court told the jury that it had another trial starting on Monday, and that the jury could reach a partial verdict.  However, the court told the jury that there was no time limit on its deliberations, and the jury did in fact continue deliberating into Monday and ultimately did not return a partial verdict.

Third, the Court found that the defendant invited any error with regard to the district court’s failure to instruct the jury on wire fraud, one of the objects of the conspiracy.  The defendant not only agreed with the court’s proposed instructions, but his own proposed instructions omitted any instruction on wire fraud.

Finally, the Court vacated the 20-year sentence for the conspiracy count.  Although that sentence was below the statutory maximum for the wire fraud object, it exceeded the ten-year statutory maximum for the healthcare fraud object.  And because the jury returned a general verdict, and was instructed it could find the defendant guilty if it found him guilty on either or both of the objects of the conspiracy, the Court could not discern the object(s) for which the jury found him guilty.  Following circuit precedent, the Court vacated the sentence and remanded for the government to either consent to a sentence based on the ten-year maximum or retry the defendant with a special verdict.

Iriele: Lay Expert Can Testify About Handwriting Learned During Course of Criminal Investigation

In United States v. Iriele, No. 17-13455 (Oct. 9, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the pharmacist defendant’s convictions stemming from the illegal dispensation of prescription medications.

On appeal, the defendant raised 15 claims of error.  However, the Court addressed only  a few of them because the remainder did not warrant discussion.  The Court “remind[ed] counsel that raising a plethora of issues is not good advocacy.”

First, the defendant challenged the admission of testimony by a non-expert law enforcement agent who investigated the defendant’s schemes and told the jury that a ledger contained the defendant’s handwriting.  The Court upheld the admission of that testimony under Rule 901(b)(2).  Joining every circuit to address the issue, the Court concluded that a lay witness cannot become familiar with someone’s handwriting when he does so solely for the purpose of identifying it at trial; that is the role of an expert.  But a lay witness can become familiar with handwriting during the course of a criminal investigation, even if he later testifies about it at trial.

Second, the Court found the evidence sufficient to support the defendant’s drug conspiracy, drug distribution, and money-laundering convictions.  As to the drug convictions, the Court concluded that sufficient circumstantial evidence established that the defendant personally knew that doctors conspired to issue prescriptions without a legitimate medical purpose, and that he voluntarily joined that conspiracy by filling prescriptions.  The Court also found the evidence sufficient to establish that the defendant conspired to commit promotional money laundering.

Third, and reviewing for plain error, the Court found no reversible error with respect two jury instructions.  On the drug counts, the district court plainly erred by failing to instruct the jury that the pharmacist must know that the doctor issued the prescription without a legitimate medical purpose.  But the defendant could not show prejudice because the evidence was overwhelming in that regard.  On the money-laundering conspiracy count, the court failed to expressly set out the elements of the offense, but the instructions as a whole sufficiently conveyed them.  And although the court did not convey everything to the jury about financial transaction money laundering, he could not show prejudice due to overwhelming evidence of guilt on an omitted element.

Gallardo: Upholding Cocaine Conspiracy Conviction Over Multiple Challenges

In United States v. Gallardo, No. 18-11812 (Oct. 9, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine.

First, the Court found no abuse of discretion in denying a mistrial based on an agent’s false rebuttal testimony because the defendant did not meet his burden to show prejudice.  The district court gave a curative instruction, and the agent’s testimony only hurt his own credibility.

Second, there was no error in denying a motion for a new trial on the ground that the weight of the evidence established that the conspiracy involved only one kilogram of cocaine rather than five kilograms.  The Court found ample evidence that, although the confidential source was the one pushing for a five-to-seven kilogram deal, the defendant agreed to sell that amount, even though he was caught with only one kilogram of cocaine.

Third, applying plain error, the Court found no Brady violation with respect to the government’s belated disclosure that the confidential source had been deactivated due to self-dealing.  The defendant could not show a reasonable probability that he would have been acquitted, as the defendant used that evidence in his defense to his advantage.   And there was no Giglio violation because evidence of the source’s deactivation did not reveal any false trial testimony.

Fourth, and again applying plain error, the Court found that the district court did not err by failing to sua sponte grant a new trial based on alleged sentencing entrapment or sentencing factor manipulation due to the confidential source’s repeated requests for more than the one kilogram to which the defendant was predisposed.  The Eleventh Circuit does not recognize sentencing entrapment as a viable defense.  And his sentencing manipulation claim failed because the remedy was merely a lower sentence, not a new trial; the Eleventh Circuit has consistently rejected such claims based on the government’s decision to involve a large quantity of drugs in its sting operation; and, in any event, the defendant was a willing participant in the larger conspiracy.

Gayden: Upholding Prescription Drug Convictions Over Multiple Challenges

 In United States v. Gayden, No. 18-14182 (Oct. 9, 2020) (Tallman (CA9), Martin, Rosenbaum), the Court affirmed the defendant’s convictions and sentence for unlawfully distributing prescription drugs.

First, the Court found no abuse of discretion related to the government’s pre-indictment delay because, even assuming that the defendant could show prejudice, he could not show that the government deliberately delayed to gain a tactical advantage.

Second, the Court upheld the denial of a motion to suppress.  Applying the third party doctrine, and rejecting the defendant’s reliance on the Supreme Court’s decision in Carpenter, the Court found that the defendant did not have a reasonable expectation in prescriptions he wrote for patients, and he voluntarily disclosed those records to others.

Third, the district court did not abuse its discretion by denying the defendant’s motion to exclude the government’s expert witness under Daubert.  Although the defendant argued that the expert was exposed to irrelevant and inflammatory information about the defendant before forming his opinion, the defendant was able to cross examine the expert.

Fourth, the Court found no procedural or substantive error with respect to the sentence.   As for procedural error, the Court found no ex post facto violation by considering his conduct before Florida law pertaining to the standard of care was amended because his conduct was prohibited both before and after the amendment; and an obstruction enhancement was appropriate because the defendant “updated” his records after a state search warrant (but before a federal search warrant) was executed.  Lastly, the Court found that his 235-month sentence was not substantively unreasonable.

Bruce: Finding Reasonable Suspicion Based on an Anonymous 911 Tip

In United States v. Bruce, No. 18-10969 (Oct. 8, 2020) (Grant, Lagoa, Martin), the Court affirmed the denial of a motion to suppress.

First, the Court held that there was reasonable suspicion to stop the defendant.  An anonymous 911 call at 3am reported that men in a high-crime area were outside of a white car, one of them had a gun, and there might be a shooting any minute.  Officers arrived at the location and saw two men sitting in a car at the address.  Relying heavily on the Supreme Court’s decision in Navarette, the Court found that the tip was sufficiently reliable because it gave a first-hand contemporaneous account, and it supplied reasonable suspicion, even though the officers did not observe any criminal activity when they arrived at the scene.  The officers could have reasonably believed that the men in the car were the men being described by the tipster, they could have been hiding their dispute from the police, nothing the police observed undermined the tip, and the police were not required to watch and wait for a shooting to occur or risk their lives by approaching for a consensual encounter.

Second, the Court rejected the defendant’s argument that the police needed more than reasonable suspicion because the car was parked in the curtilage of a home.  Because that fact-specific argument was raised for the first time on appeal, and there was little information about the home or the defendant’s relationship to it, the defendant could not establish plain error.  The Court declined to remand for fact-finding, as doing so would undermine the plain-error doctrine.

Judge Martin dissented.  She agreed that the anonymous tip was sufficiently reliable, but she believed that any reasonable suspicion generated by the tip had dissipated when the officers arrived and merely saw two men sitting in a car with the dome light on.  She disagreed that an ongoing violent conflict was disguisable, and believed that the majority’s contrary conclusion was speculative.  She believed the officers should have observed the car and the occupants’ conduct, or should have conducted a consensual encounter.

Amede: Upholding Drug Conviction an Sentence Over Various Challenges

 In United States v. Amede, No. 18-11172 (Oct. 8, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for attempted possession with intent to distribute five kilograms of cocaine.

First, the Court upheld the denial of the defendant’s motion to exclude three recorded phone calls between a co-conspirator and undercover officer to arrange the drug deal.  The Court held that the statements were admissible under the co-conspirator hearsay exception, because they were made during the course and in furtherance of the conspiracy, even if the defendant had not joined the conspiracy until after the calls were made (though he already had).

 Second, the district court did not constructively amend the indictment by omitting “willfully” from the indictment's “knowingly and willfully” allegation.  The government was only required to prove that the defendant acted knowingly or intentionally, not willfully.  So the indictment’s inclusion of “willfully” was mere surplusage that the district court was free to omit.

 Third, the Court found the evidence sufficient to sustain the conviction because it established that the defendant acted knowingly and was attempting to possess cocaine with intent to distribute it.

Fourth, the Court held that the district court did not abuse its discretion by limiting cross-examination and the defendant’s own testimony regarding a duress defense.  There was no evidence that the defendant had no reasonable opportunity to escape or to inform the police that others were threatening his family or coercing him to do the drug deal.  His subjective belief alone that law enforcement would not have protected his family abroad was insufficient.  In any event, any error was harmless because the defense was still able to elicit testimony to support the duress defense.

Fifth, the Court found that, under the particular facts and circumstances, the defendant knowingly and voluntarily waived the right to counsel at sentencing after refusing to cooperate with his retained substitute counsel or his original court-appointed counsel.

Innocent: Affirming 922(g) Convictions Over Rehaif Challenge

 In United States v. Innocent & Jones, Nos. 19-10112, 18-15210 (Oct. 8, 2020) (William Pryor, Tjoflat, Hull), the Court affirmed 922(g) convictions over a Rehaif challenge.

Applying plain error review, the Court agreed that the defendants’ pre-Rehaif indictments were erroneous in light of Rehaif, and that error was now plain.  But the Court concluded that the defendants could not show a reasonable probability of a different result, because circumstantial evidence established that each knew of their felon status.  Although one defendant had never served more than a year in prison and had  a low intelligence score during a competency evaluation, that was not enough to meet his burden in light of his four prior felony convictions.  The other defendant admitted he was a felon at the time of arrest, had a prior felony conviction for being a felon in possession, had multiple prior felonies for which he served many years in prison, and immediately dropped the gun when the police approached.   The Court rejected the defendants’ arguments that plain error review should not apply at all.

 The Court also affirmed an ACCA enhancement based in part on Florida aggravated assault.  The defendant invited the error at sentencing by agreeing that this offense qualified as a violent felony.  And, in any event, he could not show plain error because circuit precedent foreclosed his argument.

Abreu: Reversal for Insufficient Evidence Alone Does Not Establish Actual Innocence for Unjust Conviction Statute

 In United States v. Abreu, 18-13965 (Oct. 1, 2020) (Jordan, Newsom, Hall), the Court affirmed the denial of a petition for a certificate of innocence under the Unjust Conviction Statute.

 The Eleventh Circuit had previously reversed the petitioner’s fraud convictions for insufficient evidence.  However, the Court held that, even assuming such a reversal  (or an acquittal) could itself entitle a person to a certificate of innocence, the appellate decision did not demonstrate the petitioner’s actual innocence.  The Court held only that there was no direct or circumstantial evidence from which a jury could find guilty beyond a reasonable doubt.  And because the petitioner relied only on the appellate decision, without otherwise alleging or proving actual innocence, the district court did not abuse its discretion by denying the petition.

 Judge Newsom concurred in the judgment.  He opined that an appellate decision reversing for insufficient evidence, by itself, can never establish innocence under the actual-innocence prong of the the statute.

Conage: ACCA Case Certifying Question about "Purchasing" Trafficking Quantity to Florida Supreme Court

 In United States v. Conage, No. 17-13975 (Sept. 30, 2020) (Julie Carnes, Ed Carnes, Clevenger), the Court certified a question to the Florida Supreme Court about the Florida trafficking statute in 893.135.

 The question was whether cocaine trafficking under 893.135(1)(b)1 is a “serious drug offense” under the ACCA.  That Florida statute is indivisible, and it prohibits “purchasing” a trafficking quantity of drugs.  To satisfy the ACCA’s definition of a “serious drug offense,” the offense must “involve” certain acts, one of which is possession with intent to distribute.  Thus, the question was whether purchasing a trafficking quantity under 893.15 “involves” actual or constructive “possession” of the drug being purchased.  If not, then the statute is categorically overbroad, and it will never qualify as an ACCA predicate.  However, because Florida law did not specify the elements of trafficking by purchase, and did not otherwise define the term “purchase,” the Court certified that issue to the Florida Supreme Court.

Bolatete: Upholding Conviction for Possessing Unregistered Silencer Over Constitutional Challenges

 In United States v. Bolatete, No. 18-14184 (Sept. 29, 2020) (Ed Carnes, Branch, Luck), the Court affirmed the defendant’s conviction and sentence for possessing an unregistered silencer.

 First, the Court held that the National Firearms Act was constitutional under Congress’ taxing power.  It explained the binding circuit precedent foreclosed the defendant’s contrary arguments.

 Second, applying plain error review, the Court rejected the defendant’s argument that the Act imposes an unconstitutional tax because it imposes impermissible fees on the exercise of Second Amendment rights.  There was no decision addressing that argument, so any error was not plain.  For the same reason, the Court also found no plain error as to the defendant’s argument that the Act’s application to silencers violates the Second Amendment.

 Third, the Court found that there was sufficient evidence to support the jury’s finding that he was not entrapped.  Although the defendant initially told the undercover officer that he did not want a silencer, there were others facts that showed a predisposition to receive and possess an unregistered silencer.

 Fourth, as to sentencing, the Court found that any guideline error was harmless because the court said it would impose the same 60-month sentence anyway, and that upward variance was not substantively unreasonable. 

Boyd: Enforcing Sentence Appeal Waiver Where Defendant Challenged Calculation of Guidelines

 In United States v. Boyd, No. 18-11063 (Sept. 16, 2020) (Branch, Marcus, Huck), the Court granted the government’s motion to dismiss the appeal based on a sentence appeal waiver.

 The appeal waiver barred the defendant from appealing his sentence unless the court imposed a sentence “that exceeds the advisory guideline range.”  Although the court imposed a guideline sentence, the defendant argued that the waiver did not bar his argument challenging the calculation of the guideline range.  Rejecting the defendant’s argument that the waiver was ambiguous, the Court held that the “advisory guideline range” clearly referred to the range calculated by the district court.  The Court also found that, based on the record, the defendant knowingly and voluntarily agreed to the waiver.

Davila-Mendoza: MDLEA Prosecution for Drug Trafficking in Foreign Waters Exceeded Congress' Authority

 In United States v. Davila-Mendoza et al., No. 17-12038 (Aug. 26, 2020) (Branch, Jill Pryor, Boggs), the Court vacated the defendants’ MDLEA convictions on the ground that the statute, as applied, exceeded Congress’ constitutional authority.

 The drug-trafficking activities in this case occurred in the territorial waters of a consenting foreign country, not the high seas.  The Court first concluded that, as applied, the MDLEA exceeded Congress’ authority under the Foreign Commerce Clause.  The Court assumed, without deciding, that this clause had the same scope as the interstate commerce clause.  Applying that framework, the defendants’ conduct lacked a “substantial effect” on commerce between the United States and foreign nations.  There was no allegation or evidence that drug trafficking in waters of a foreign nation by foreign nationals on a foreign boat of drugs not bound for the US substantially affected US commerce with foreign nations.  The Court rejected the government’s argument that wholly foreign drug trafficking impacted the international drug trade, which in turn could impact US commerce with foreign nations.  The Court also rejected the government’s argument that this prosecution was an exercise of Congress’ authority under the Necessary and Proper Clause to enforce a bilateral treaty with Jamaica, because the MDLEA was enacted before the treaty and thus could not have effectuated it.

Mastin: Extending Rule of Michigan v. Summers from Search Warrants to Arrest Warrants

 In United States v. Mastin, No. 18-14241 (Aug. 26, 2020) (Grant, William Pryor, Antoon), the Court affirmed the defendant’s felon in possession conviction.

 The Court upheld the denial of a motion to suppress the gun.  The gun fell out of the defendant’s waistband after the police ordered him to get on the ground and crawl out of a hotel room where the officers were executing arrest warrants on others.  First, the Court explained that, based on the totality of the circumstances, the officers could enter the hotel room to carry out the arrest warrants because they had a reasonable belief that it was the suspects’ dwelling and that one of them was there.  Second, the Court rejected the defendant’s argument that it was unreasonable to require him to crawl out of the room, because officers may briefly detain those on the premises not only while they execute a search warrant but also while they execute an arrest warrant.  In so holding, the Court extended the Supreme Court’s decision in Michigan v. Summers in a manner that the Ninth Circuit had not.

The Court also rejected the defendant’s argument that he was deprived of a fair trial because the court limited his right to cross examine a police witness and develop his defense theory.  The Court found no abuse of discretion because the questions he wanted to ask would not have been probative of bias and would have confused the jury.

Jimenez: Upholding Visa Fraud and Money Laundering Convictions

 In United States v. Jimenez, No. 18-10569 (Aug. 25, 2020) (Hull, Wilson, Lagoa), the Court affirmed the defendant’s immigration-fraud conspiracy and money laundering convictions.

 The Court held that sufficient evidence supported the immigration-fraud conspiracy conviction because the  material misrepresentations he conspired to make were in documents “required by immigration laws and regulations.”  The Court rejected his argument that the document in question, an I-140 petition, was not such a document.  And the Court held that there was sufficient evidence that the defendant conspired to make false statements in the I-140 petitions in order to obtain visas for Chinese nationals.  Because the evidence was sufficient to support the immigration-fraud conspiracy, the jury could have also convicted him of money laundering because the visa fraud conspiracy was a “specified lawful activity” for money-laundering purposes.

Estrada: Upholding Convictions for Smuggling Cuban Baseball Players

 In United States v. Estrada, No. 17-15405 (Aug. 13, 2020) (Jill Pryor, Rosenbaum, Branch), the Court affirmed the defendants' convictions for smuggling baseball players out of Cuba into the United States.

 First, the Court rejected as foreclosed by prior precedent the defendants' arguments that the Cuban Adjustment Act and Wet-Foot/Dry-Foot policy established “prior official authorization” for the players to enter the US.  The Court also rejected the argument that 1324(a)(2)’s “prior official authorization” component was unconstitutionally vague.

 Second, the Court found that the evidence was sufficient to support the defendants' convictions for both aiding and abetting alien smuggling and conspiracy to commit alien smuggling.

Third, the Court found no abuse of discretion in five evidentiary rulings.  Two witnesses were permitted to give lay (as opposed to expert) testimony about government unblocking licenses and visas.  The court did not improperly limit the defendants’ ability to cross examine those two government witnesses about whether they acted in good faith to comply with government regulations.  The court properly admitted evidence of uncharged violence and extortion because it was intrinsic evidence necessary to complete the story of the crimes.  The court properly admitted hearsay under the co-conspirator exception.  Finally, the court did not err by refusing to strike a government witness’ testimony because the court allowed the defendant to  put on evidence showing that the witness had lied, and his credibility was a matter for the jury.

Carter: Two Prior Drug Offenses Were Committed Separately Because Only One Received Location-Based Enhancement

 In United States v. Carter, No. 18-14806 (Aug. 12, 2020) (Grant, William Pryor, Antoon), the Court upheld the defendant’s ACCA sentence.

 The issue was whether two prior Alabama drug offenses were committed on separate occasions.  Based on a review of the indictment and plea admissions, the Court held that they were more likely than not committed separately, because only one of the two offenses received a location-based enhancement under state law.

McKathan: Probationer was "Compelled" For Fifth Amendment Purposes to Truthfully Answer Probation Officer's Questions

 In McKathan v. United States, No. 17-13358 (Aug. 12, 2020) (Rosenbaum, Branch, Dubina), the Court vacated the denial of a 2255 motion asserting ineffective assistance of counsel for failing to file a motion to suppress statements that he made to a probation officer while he was on supervised release.

 The question was whether the movant would have established a violation of his privilege against self-incrimination.  Because he never invoked the privilege, he had to show that he was compelled to make the incriminating statements.  Resolving that question affirmatively, the Court concluded that, in light of binding precedent, he was faced with a “classic penalty situation” because he could reasonably believe that his supervised release would be revoked if he did not truthfully answer the probation officer’s questions.  The Court remanded for the district court to determine if the statements would been admissible based on the inevitable discovery doctrine.

 Judge Branch dissented, opining that it was unreasonable for the movant to believe he faced a “classic penalty situation.”

Green: RICO Conspiracy Is Not a Crime of Violence Under 924(c)

In United States v. Green, No. 17-10346 (Aug. 11, 2020) (Wilson, Grant, Hinkle), the Court affirmed in part and vacated in part. 

First, the Court held that RICO conspiracy is not a “crime of violence” under the elements clause in 924(c)(3)(A).  The Court reasoned that, like Hobbs Act conspiracy, RICO conspiracy was premised on a mere agreement to participate in unlawful activity and does not require an overt act. 

Second, the Court held that one of the defendant’s 120-year sentence was procedurally unreasonable because the district court failed to adequately clarify the applicable guideline range, which was determined to be 210-262 months at the initial sentencing hearing.  The district court also clearly erred by finding that the defendant participated in a murder, which stipulated cell phone records made physically impossible.

 Third, the Court upheld the denial of a motion to suppress cell-site data acquired pursuant to state court orders consistent with section 2703(d) of the Stored Communications Act.  For one defendant, the Court found that he abandoned any interest in his cell phone by failing to recover the phone during the course of four years in the government’s possession.  For other defendants, the Court found that the good-faith exception to the exclusionary rule applied: with respect to cell-site data because the government reasonably relied on the state court orders, which were issued five years before Carpenter; and with respect to real-time tracking data, the legality of which remains open today.

 Fourth, the Court found no abuse of discretion in denying a peremptory strike because it violated the voir dire procedure, under which he agreed to jointly exercise peremptory strikes with the other defendants.

 Fifth, the Court found that the district court erroneously admitted testimony concerning street rumors that one of the defendants committed murder.  That testimony was not admissible under 801(d)(2)€ because the witness did not hear it from co-conspirators, only through street rumors.  However, the Court found the error to be harmless given other substantial evidence involving that defendant’s involvement in the murder.

 Based on a review of the record, the Court rejected various evidentiary claims, found the evidence sufficient, and found no error with regard to inconsistent verdicts.

Walked: Reversing Denial of Government Motion for Forfeiture in Money Laundering Case

 In United States v. Walked, No. 18-11951 (Aug. 11, 2020) (Martin, Grant, Lagoa), the Court reversed the denial of the government’s forfeiture motion.

 The Court held that, if a defendant is convicted of a money laundering scheme that caused no financial harm to an innocently involved bank, a forfeiture order is still mandatory.  Applying the mandatory forfeiture statute in 18 U.S.C. 982(a)(1), the Court concluded that there was property “involved in” the scheme.  The Court rejected the defendant’s arguments that laundered money is not “property” under the statute, and that laundered money could not be used to calculate his forfeiture obligation because the money was returned to the bank as part of the scheme.  Finally, the Court held that the district court erred by holding that the Eighth Amendment imposed a $10,000 per transaction ceiling, and the Court remanded for the district court to consider whether a $10 million forfeiture award violated the Eighth Amendment.

 Judge Lagoa concurred in part and dissented in part.  She disagreed with a portion of the majority opinion suggesting that the government was entitled to substitute asset forfeiture under 21 U.S.C. 853(p), as the government had not sought forfeiture under that statute.  And because the district court had not yet made factual findings on the Eighth Amendment issue, she would not opine on whether a $10,000 per transaction maximum was excessive.

Henry: Downward Adjustment Under USSG 5G1.3(b) is Mandatory Notwithstanding Booker

 In United States v. Henry, No. 18-15251 (Aug. 7, 2020) (William Pryor, Grant, Antoon), the Court vacated the district court’s refusal to adjust the defendant’s sentence under USSG 5G1.3(b) based on time served on a related state case.

Although there was no dispute that the criteria for an adjustment under 5G1.3 were satisfied, the district court refused to apply it because it determined that the Guidelines were advisory.  Disagreeing with other circuits, the Eleventh Circuit reached the contrary conclusion, holding that an adjustment under 5G1.3 is mandatory, notwithstanding Booker.  The Court reasoned that Booker rendered advisory only the Guideline provisions that relate to the guideline range.  But 5G1.3 relates to the imposition of the sentence and comes in to play only after the guideline range has been determined.  And because its application can only reduce (not increase) the defendant’s sentence, treating it as mandatory does not violate the Sixth Amendment.

Knights: Encounter Between Officers and Defendant Was Consensual, Not a Seizure

In United States v. Knights, No. 19-10083 (Aug.  3, 2020) (William Pryor, Rosenbaum, Michael Moore), the Court upheld the denial of a motion to suppress.

Officers parked a patrol car close to the defendant’s car and then approached him.  The Court held that this was a consensual encounter that did not rise to the level of a seizure because a reasonable person would have felt free to leave.  In fact, the defendant’s companion ignored the officers and left, and the defendant could have also driven away.  The officers did not display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Nor did they activate their lights or siren.  The defendant was free to abandon his car in a high-crime area because two officers were there, and he could have returned when they left, and the officers’ use of a flashlight to did not communicate a show of authority.

Competa: No Additional Competency Hearings Required Before Trial and Sentencing

In United States v. Cometa, No. 19-11282 (Aug. 3, 2020) (William Pryor, Rosenbaum, Luck), the Court upheld the denial of additional competency hearings before trial and sentencing.

The Court found no abuse of discretion because an expert opined that he was competent before trial.  And the defendant’s continued understanding of the proceedings, ability to consult with counsel, and ability to assist with his defense established that there was no bona fide doubt about his competency after the district court initially found him competent.