Roy: Counsel's absence from courtroom is not structural error

In U.S. v. Roy, No. 12-15093 (April 26, 2017), the Court (en banc) (8-3) in a 281-page opinion held that harmless error, not structural error, applied to determine whether defense counsel’s absence from the courtroom during the questioning of a prosecution witness at trial was reversible error. The Court recognized that in Cronic, the Supreme Court held that structural error occurs when a criminal defendant has been denied the assistance of counsel at a critical stage of the trial. But defense counsel “was present during 99.6 percent of Roy’s trial, and he vigorously represented Roy.” The Court reasoned that the 18 questions and answers that Roy’s counsel missed were not a “stage” or “critical stage” of a trial, because they did not constitute a separate step in the trial process, or a discrete phase of it. The Court also noted that it was able to make a prejudice analysis because it knew the precise questions and answers that defense counsel missed out on. The Court concluded that the error caused by counsel’s absence was harmless as to the single attempted child enticement charge, noting that in addition to the six images of child pornography mentioned during counsel’s absence, “the jury was presented with overwhelming and irrefutable evidence of Roy’s sexual interest in minor girls.” As to the counts of possession of child pornography, the evidence was also “overwhelming.”

Davis: Prosecution for witness tampering not multiplicitous

In U.S. v. Davis, No. 15-13241 (April 20, 2017), the Court affirmed the convictions of a defendant charged with being a felon in possession of a firearm, and with witness tampering and obstruction of justice in violation of 18 U.S.C. §§ 1512(b)(1) & 1503. The Court rejected Davis’ argument that the witness tampering and obstruction charges were multiplicitous because Congress did not intend for cumulative prosecution under §§ 1512 and 1503. The Court acknowledged that the Second Circuit had held that Congress intended for witness tampering to be prosecuted only under § 1512, but noted that the majority of circuits disagreed with the Second Circuit. The Court also noted that a prosecution under § 1503 involves interference with the due administration of justice, while a violation of § 1512 does not require a “pending judicial proceeding.” The Court rejected Davis’ argument that a prosecution under § 1512 for witness tampering involves an “implicit requirement” of a pending judicial proceeding, holding that so long as two offenses involve different elements, a court need look no further in determining that the prosecution of both offenses does not offend Double Jeopardy.

Gonzalez-Murillo: Remand for 3582 resentencing

In U.S. v. Gonzalez-Murillo, No. 16-11464 (April 4, 2017), the Court held that when it was unclear whether, at the original sentencing, the district court, under USSG § 5G1.3(b)(1), gave the defendant credit for 13 months he served in state custody for a term of incarceration that was undischarged at the time of the federal sentencing, the Court remanded for resentencing pursuant to a subsequently amended Guideline, pursuant to 18 U.S.C. § 3582(c)(2). The Court recognized that if the state custody was discharged, then any sentence reduction would have a discretionary departure, not subject to further reduction under § 3582(c)(2). But because the prior sentence might have not have been based on a departure, the Court remanded for resentencing.

Monzo: Affirming rejection of minor role reduction

In U.S. v. Monzo, No. 16-10222 (April 7, 2017), the Court rejected the argument that the district court erroneously failed to grant the defendant drug courier a “minor role” sentence reduction. The Court found that the district court did no erect any per se role for couriers in drug cases. The Court also rejected the argument that the district court erred in assigning three criminal history points for a prior Nevada drug-possession conviction, finding that Monzo was arrested on a probation violation, his probation was revoked, and he was sentenced to 12-30 months imprisonment. This 30-month sentence exceeded 13 months, the length of sentence sufficient to trigger three criminal history points.

Osman: Restitution for child pornography

In U.S. v. Osman, No. 14-14124 (April 12, 2017), the Court rejected a child pornography defendant’s challenge to a restitution order covering future therapy: “We are not dealing here with just the likelihood that a young child whose pornographic images are shared online will suffer residual effects from the reproduction of those images will need treatment. We are dealing with a child who was molested by her father, who will be informed of that fact, who will know that her father is absent from her life and suffering imprisonment based on that interaction. That is a heavy burden to place on a child. We cannot imagine that therapy will not be in order at the relevant times. Given the facts here, it seems that the need for future therapy is not just likely, but a virtual certainty.”

Pridgeon: Fla. Stat. 893.13 qualifies as controlled substance offense

In U.S. v. Pridgeon, No. 15-15739 (April 12, 2017), the Court affirmed the career offender sentence for a defendant convicted of methamphetamine trafficking. The Court rejected the argument that a Florida drug trafficking violation of Fla. Stat. § 893.13 fails to qualify as a “controlled substance offense” because the offense lacks the requisite mens rea with respect to the illicit nature of the substance. The Court pointed out that this argument was foreclosed by prior Circuit precedent.

Horner: Affirming tax fraud convictions

In U.S. v. Horner, No. 15-14675 (April 13, 2017), the Court rejected challenges to convictions for filing false tax returns. The Court rejected the argument that the government presented false testimony from an IRS agent. The testimony “was neither false nor misleading.” The Court also rejected the argument that the district court erroneously failed to give the jury the “good faith reliance” instruction that had been given in another case, pointing out that that this was not the “only acceptable instruction on good faith reliance.” The Court also rejected the argument that the district court erred in failing to instruct the jury on the “due diligence” obligations of tax preparers. The Court also rejected the argument that the district court erred in allowing the government to characterize the Horners’ cash deposits as “structuring.” “The evidence was highly probative in addressing the issue of the Horners’ financial savvy.” Finally, the Court rejected the argument that it was unfair to admit the defendants’ 2005 and 2006 tax returns. The Court found that these acts, though in earlier years, were part of the same set of actions through which the jury found the defendants committed tax fraud in 2007 and 2008.

Bergman: No withdrawal from conspiracy

In U.S. v. Bergman, No. 14-14990 (March 24, 2017), the Court rejected the argument that the defendant withdrew from the health care fraud more than five years before the indictment, and that the prosecution was therefore barred by the five-year statute of limitations. The Court concluded that the jury could reasonably have found that Bergman resigned his position at the firm that was committing fraud only under threat of being fired, and that this resignation therefore did not constitute the kind of affirmative step to disavow or defeat the conspiracy required for withdrawal. The Court rejected Bergman’s substantive unreasonableness challenge to his 180-month sentence. The Court pointed out that Bergman “played a key role” in perpetuating a scheme that fraudulently billed Medicare of nearly $200 million. The Court rejected a co-defendant’s claim that a “vulnerable victim” enhancement should not have been imposed based on patients who were also co-conspirators. The Court explained that some of the patients, including some who suffered from dementia, were not co-conspirators. [Martin, J., dissented from the statute of limitations holding, concluding that Bergman’s resignation qualified as a withdrawal from the conspiracy].

McCullough: reassignment of judge permissible after guilty plea

In U.S. v. McCullough, No. 15-15430 (March 15, 2017), the Court held that Fed. R. Crim. P. 25(b)(1), which bar reassigning a case to a new judge after a guilty verdict unless the judge who presided “at trial” is absent or disabled does not bar reassignment after a guilty plea. The Court noted that guilty pleas are governed not by Rule 25, but by Rule 11. The decision to separate Rules 25 and 11 suggests that Rule 25 does not apply to defendants who plead guilty. The Court also rejected the argument that the sentencing judge was too unfamiliar with the record. Turning to the Fourth Amendment suppression issue, the Court held that a traffic stop based on the police’s determination that certain portions of a vehicle’s Alabama licence plate were not clearly visible, in violation of a provision of the Alabama Code. This provided an objectively reasonable basis for the traffic stop. The Court also rejected the argument that the officer’s interpretation of the traffic code was inconsistent with the decision of an Alabama appellate court. Finally, the Court found that McCullough waived his argument in a supplemental authority letter that he was not a career offender, by failing to make this argument in his opening brief.

Butts: rejecting ineffective assistance of counsel claim

In Butts v. GDCP Warden, No. 15-15691 (March 9, 2017), the Court affirmed the denial of habeas relief to a Georgia death row inmate, rejecting his claim that counsel was ineffective for failing to develop mitigating evidence during the sentencing phase of his trial. The Court found that the defense team “thoroughly” investigated mitigating evidence. The Court declined to second guess trial counsel’s strategic decision to focus on residual doubt instead of mitigation evidence.

Hughes: Rule 11(c) defendant not eligible for sentence reduction

In U.S. v. Hughes, No. 15-15246 (Feb. 27, 2017), the Court held that a defendant who pled guilty under a Rule 11(c)(1)(C) plea, which binds the district court to impose the sentence recommended by the parties, was not subsequently eligible for a sentence reduction based on an Amendment to the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). The Court noted that the Supreme Court addressed this issue in Freeman (2011), a “plurality” decision in which Justice Sotomayor’s concurrence provided the “less-far-reaching” ground, and therefore represented Freeman’s holding. The Court noted the Circuit split on the holding in Freeman, and sided with the majority view. Under this view, a Rule 11(c) defendant is only eligible for a § 3582(c)(2) sentence reduction if the sentencing judge’s decision to accept the recommended sentence is based on the guidelines (not, as the plurality reasoned, because every sentence is based on the guidelines). Here, Hughes’ plea agreement did not make clear that a sentencing range formed the basis for his sentence. Therefore, Hughes was not sentenced “based on” the guidelines range, and he is not eligible for a sentence modification.

Phillips: Granting 2255 relief where false statement by police officer tainted conviction

In Phillips v. U.S., No. 14-11960 (Feb. 23, 2017), the Court, reversing the denial of § 2255 relief, agreed with the defendant (and the government’s concession) that a prior conviction for drug trafficking was tainted by the false testimony at trial of a West Palm Beach police officer, who was also under criminal investigation for conduct that occurred at the time of his investigation of the defendant. The Court concluded that the officer’s false testimony was “material” to the government’s case, and thus there was “grave doubt” about whether it influenced the jury’s verdict. The Court, however, affirmed the district court’s ruling on two other counts that despite the warrant application’s reliance on false statements by the police officer, there was other information in the warrant that supported probable cause. There was sufficient evidence, apart from the false testimony, to justify the search warrant that led police to the discovery of ammunition in Phillips’ residence.

Vargas: Duration of traffic stop not unreasonable

In U.S. v. Vargas, No. 16-14714 (Feb. 16, 2017), the Court affirmed the denial of a motion to suppress evidence on Fourth Amendment grounds, rejecting the argument that the police detained the defendant for an unreasonable time after a traffic stop. The Court pointed out that neither the driver nor the passenger of the vehicle that had been pulled over for a traffic infraction had a driver’s license. The police therefore had a duty to continue to detain them, and prevent them from driving off.

Votrobek: Georgia and Florida conspiracies were separate

In U.S. v. Votrobek, No. 14-12790 (Feb. 13, 2017), the Court affirmed the convictions and sentences of defendants convicted of conspiring to distribute drugs and money laundering. The Court rejected the argument that Double Jeopardy barred prosecution for a Georgia conspiracy on the ground that it was the same conspiracy for which a defendant was acquitted after a jury trial in Florida. The Court concluded that the defendant committed two separate conspiracies, noting that the conspiracies did not overlap in time, and involved different co-conspirators. Though the offenses were almost identical, this factor is least important to the Double Jeopardy analysis. Moreover, the overt acts were different – and the conspiracies took place in two separate States: Florida and Georgia. The Court also rejected a challenged failure to hold a Franks hearing to determine whether the probable cause affidavit supporting a warrant lacked a basis. The Court cited the information detailed in the affidavit, and found that it supported the need for a wiretap. The Court further rejected the argument that the district court should have given an “entrapment by estoppel” defense jury instruction. Entrapment by estoppel occurs when a defendant reasonably relies on an official’s approval of the conduct at issue. Here, at no point did an official communicate to a defendant that his conduct was in compliance with the law.

Scheels: Enhancement for sadistic conduct

In U.S. v. Scheels, No. 15-15405 (Jan. 31, 2017), the Court rejected the argument that the four level enhancement of U.S.S.G. § 2G2.1(b)(4) for an offense involving material that portrays sadistic or masochistic conduct should not apply when the sadistic or masochistic conduct in the pornography was directed at the defendant, not at the child victim. The Court pointed out that the Guideline covered conduct that “involved” sadistic or masochistic conduct, not that the conduct be directed at the victim. The Court noted past cases involving conduct directed at the victim, but found that these cases merely hold that conduct directed toward a child is sufficient to warrant the enhancement, not that it is necessary. The Court affirmed the 600-month sentence.

Golden: Turner remains binding precedent

In United States v. Golden, No. 15-15624 (Jan. 24, 2017), the Court held that it was bound by its precedent in Turner v. Warden Coleman FCI to hold that a Florida conviction for aggravated assault, in violation of Fla. Stat. § 784.021, constitutes a crime of violence for Guideline enhancement purposes. [Jill Pryor, J, concurring, urged the Court to reconsider the viability of Turner en banc. She argued that Turner conflicts with other Circuit precedent, and with the analytical approach of subsequent Supreme Court cases.

Stein: Signalife investor loss amount vacated

In United States v. Stein, No. 14-15621 (Jan. 18, 2017), the Court affirmed all fraud convictions arising out of a scheme to inflate the stock price of Signalife, but vacated his conviction and remanded for resentencing. The Court rejected Stein’s Brady claim, finding that the evidence at issue was exculpatory, and was available to him with reasonable diligence. The Court also rejected Stein’s Giglio claim, finding that the prosecution did not speak falsely, and its statements did not involve testimony that would have materially affected the judgment. Turning to the sentence, the Court noted that the district court calculated the loss amount based on a finding that all 2, 415 shareholders who owned shares of stock of the company whose value Stein inflated suffered a loss during the period the stock was artificially inflated. The Court noted that there was no direct evidence, and insufficient circumstantial evidence, that 2,415 investors relied on the fraudulent information Stein disseminated. The Court noted that on remand, the district court could try again to prove the losses of the Signalife investors, or rely on the defendant’s actual gain, instead of the actual loss, as a measure of the loss for Guideline purposes. The Court also agreed with Stein that, in calculating loss, the district court erroneously failed to account for “intervening events” that may have affected the stock price, specifically, the short-selling of over 22 million shares of Signalife and the across-the-board decline of the market in 2008. The Court instructed the district court to determine whether these intervening events affected the price of Signalife, and, if so, whether Stein reasonably foresaw this.

Garcia-Martinez: Florida Second Degree Burglary is not a Violent Felony

In U.S. v. Garcia-Martinez, No. 14-15725 (Jan. 11, 2017), the Court held that a prior conviction for second-degree burglary of a dwelling in violation of Fla. Stat. § 810.02(3) does not count as a violent felong for purposes of USSG 2L1.2(b)(1)(A)(ii). Noting a Circuit conflict on the meaning of a “dwelling,” and siding with the majority view, the Court held that a generic dwelling is a space intended for use as “a human habitation.” Florida, however, includes the “curtilage” of a space within its definition of a “dwelling.” This takes Florida’s definition outside the generic definition. Further, the dwelling and the curtilage are not alternative elements of a burglary, just different means of committing the offense. Thus, the locational element is indivisible. The Court therefore vacated the sentence and remanded for resentencing.

Rushin: Defense precluded from asking cooperating witnesses about specific future sentences

In U.S. v. Rushin, No. 14-15622 (Dec. 21, 2016), the Court affirmed the convictions and sentences of prison guards charged with abusing prisoners and covering up the incidents. The Court declined to address whether the district court erroneously limited one defendant’s counsel CJA voucher, finding that no appellate jurisdiction existed because the notice of appeal did not indicate that counsel intended to participate as an appellant. The Court rejected the defendants’ challenge to the district court’s ruling that during cross-examination of the government’s cooperating witnesses who had pled guilty, the defense could not inquire regarding the specific sentences these cooperating witnesses might have received, absent their cooperation. The Court noted that the defendants were permitted to ask whether the cooperating witnesses would have faced a more severe penalty, or expected a lesser sentence. However, “the precise number of years the cooperating witnesses may have faced provides little, if any, value above those questions defense counsel were permitted to ask.” Moreover, “due to the fact that the sentence range applicable to these witnesses would reveal the sentence range for defendants, the proposed additional examination could invite jury nullification. The risk of jury nullification is accentuated by the fact that defendants were guards and the victims prisoners.” The Court also rejected the defendants’ claim that the district court unduly limited their defense when it precluded them from introducing evidence of “unrelated inmate violence.” The Court explained that unrelated inmate violence did not make the defendants’ assaults more or less likely or more or less justified. Moreover, jury nullification appeared to be the reason for introducing this evidence – an improper basis. Turning to sentencing, the Court rejected the argument that the district court unduly relied on the conduct underlying the civil rights violations, for which the defendants were acquitted, to punish them for obstruction of justice. A district court may rely on acquitted conduct at sentencing. [Jordan, J., concurring, stated that in certain cases it could be a Confrontation Clause error to preclude the defense from asking a cooperating witness about the mandatory minimum sentence he would otherwise be facing.]

Green: Harmless Rule 404b errors

In U.S. v. Green, No. 14-12830 (Nov. 30, 2016), the Court affirmed the conviction and sentence of 262 months for a defendant charged with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court rejected Green’s challenge to the sufficiency of the evidence: Green was hiding in the same room in which the firearm was discovered, had been living at this residence, and had admitted to the arresting officer that the firearm was his. The Court also rejected the argument that Green’s admission was uncorroborated and therefore should not have been considered, finding that there was circumstantial evidence of constructive possession. The Court agreed with Green that the district court should have redacted the indictment’s reference to prior “crimes” in the plural, given that Green had stipulated to having a single prior conviction. The Court recognized that communicating to the jury that a defendant could have “dozens of convictions” increases the risk of unfair prejudice. However, the error was harmless in light of the significant circumstantial evidence. The ammunition possession conviction that the government relied on for purposes of Rule 404(b) had been entered after Green pled nolo contendere to the charge. Citing Federal Rule of Evidence 803(22), which precludes the use of a nolo plea to prove the truth the matter asserted in a judgment of conviction, the Court concluded that the admission of Green’s prior conviction was insufficient to prove that Green actually committed the prior act at issue. However, again, the error was harmless in light of the “ample” evidence “independent of the Rule 404(b) conviction,” supporting guilt. Moreover, the nolo conviction was “not emphasized during trial or closing argument,” as the district court gave a cautionary Rule 404(b) instruction, and the prosecutor in closing told the jury that the 404(b) conviction was only admitted for the “very limited purpose” of showing whether Green had the “intent” to possess the items at issue. Turning to the sentence, the Court found no error in sentencing Green under the Armed Career Criminal Act (“ACCA”), based on prior Florida battery convictions. The Court noted that the Supreme Court left open the possibility of relying on Shepard documents to determine whether a prior battery conviction qualified as a “crime of violence.” Here, these documents (the agreed factual basis for Green’s nolo plea) indicated that Green “struck” another against his will. Specifically, that the victim said that Green “hit him in the face.”