Wild: Victims' Rights Don't Attached Pre-Charge Under CVRA

In In re Wild, No. 19-13843 (Ap. 14, 2020) (Newsom, Tjoflat, Hull), the Court denied a petition for mandamus brought by victims of Jeffrey Epstein.

The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated.  Here, there was no federal criminal proceeding brought.  So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered.  The majority “sincerely regrets” this outcome but thinks it is compelled by the statute Congress wrote.

Judge Tjoflat concurred in full, but wrote separately to explain that allowing victims to sue prosecutors to enforce a right to confer pre-charge would require courts to interfere with the executive’s investigation and prosecution of crimes, and that would raise serious separation of powers problems.

Judge Hull authored a lengthy dissent, opining that the statute confers rights on victims before charges are brought.  She criticized the majority for effectively deprived the victims of any rights at all for the government’s egregious violations in this case.   She and the majority criticized each other for their rhetoric.

Maher: Rejecting Statute of Limitations Argument to Receiving/Concealing/Retaining Government Property

In United States v. Maher, No. 19-10074 (Apr. 8, 2020) (William Pryor, Branch, Luck), the Court—without oral argument—rejected the defendant’s statute of limitations argument.

The defendant was convicted of conspiracy to defraud the United States by committing mail fraud, wire fraud, and receiving/concealing/retaining  government property.  The Court affirmed that conspiracy conviction because, although the defendant argued that he was not timely indicted for receiving/concealing/retaining government property, there was no dispute about the other two objects of the conspiracy, for which the jury found him guilty in a special verdict.

The Court also concluded that the government timely indicted the defendant for receiving/concealing/retaining government property.  Although the defendant focused only on the date he received the property, the alternative means of retaining property rendered it a continuous offense.  And because the government charged the defendant within five years of the last date he retained the property, there was no statute of limitations problem.

Moore: No Plain Error for Shackling and Rehaif Indictment Error Not a Jurisdictional Defect

In United States v. Moore et al., No. 17-14370 (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the defendants’ gun and drug convictions.

First, reviewing for plain error, the Court held that, although the district court failed to make any security finding for shackling the defendant, there was no prejudice.  There was no indication that the shackles were visible; the jury returned a split verdict; and the defendant was able to participate in the trial.  The Court emphasized that shackling should not be the norm, and it is not difficult for courts to explain why they are needed, but that the defendant failed to object in this case.

Second, the Court rejected the defendants’ arguments pertaining to a jury note expressing concern about their names appearing on the verdict form.  Specifically, the Court rejected the arguments that: the court interrupted a juror attempting to articulate concerns; the court provided a misleading summary of its in camera interview with the jurors; and that the court failed to conduct a Remmer hearing, which is necessary only where there was evidence of external influence on the jury.  The Court provided a roadmap for how district courts should address jury security concerns in the future, which was similar to what the court did here.

Third, and finally, the Court rejected the defendants’ Rehaif challenge to the indictment.   The Court rejected the argument that the failure to track/cite the language of 924(a)(2) was a jurisdictional defect; rather, the Court found that it was the mere omission of an element, which is non-jurisdictional in nature.  Therefore, applying plain error, the Court found that the defendants could not show prejudice because the record reflected that the defendants had served lengthy prison sentences in the past, including for felon-in-possession offenses.

Goldman: District Court Failed to Explain or Support Restitution Award for a Cultural Artifact

In United States v. Goldman, No. 19-11135 (Mar. 25, 2020) (Rosenbaum, Tjoflat, Hull), the Court affirmed the term of imprisonment but vacated the restitution award.

As for the term of imprisonment, the defendant objected to the district court’s valuation of a stolen gold bar for purposes of the guideline governing  theft of cultural artifacts in USSG 2B1.5.  The Court found it unnecessary to address the defendant’s argument because the district court stated that, regardless of the  guideline calculation, it would have imposed the same sentence, and that 40-month sentence was not substantively unreasonable.  Therefore, any guideline calculation error was harmless.

As for restitution, the Court clarified that the fair market value of a unique item lacking actual cash value is determined by its replacement cost.  In this case, however, the district court failed to meaningfully explain how it arrived at its valuation figure, and the underlying evidence was unsubstantiated.  Accordingly, the Court remanded for the district court to ascertain the amount of restitution consistent with its opinion.

Eason: Hobbs Act Robbery Not a Crime of Violence Under Career Offender Guideline

In United States v. Eason et al., 16-15413 (Mar. 24, 2020) (Jill Pryor, Jordan, Walker), the Court held that Hobbs Act robbery is not a “crime of violence” under the career offender guideline in USSG 4B1.2.

The Court joined four other circuits that had concluded that Hobbs Act robbery did not satisfy any of the three possible definitions.  As for the elements clause, which (unlike the elements clause in 924(c)) is limited to force against another person, the Court concluded that Hobbs Act robbery was overbroad because, by its plain statutory language, it could be committed by threats of force against property, not people.  For that same reason, the Court concluded that it did not satisfy the generic definition of “robbery.”  And, finally, the Court concluded that it did not satisfy the Guidelines’ narrow definition of “extortion,” which requires a threat or fear of “physical injury.”

Cingari: No Plain Error in Joint/Several Forfeiture and 2B1.1 Rather than 2L2.1 Applied to Immigration Fraud

In United States v. Cingari, No. 17-12262 (Mar. 17, 2020) (Grant, Jordan, Siler), the Court upheld the forfeiture award and the defendants’ sentences.

As to forfeiture, the defendants, a married couple, argued for the first time on appeal that the Supreme Court’s decision in Honeycutt precluded holding them jointly and severally liable.  However, the Court found no plain error because it was not clear that Honeycutt applied to civil asset forfeiture under 981(a)(1)(C), which independently authorized the forfeiture in this case, and because Honeycutt turned on the employer-employee relationship and did not obviously apply to a husband-wife relationship where there was joint ownership of the proceeds.  In a footnote, the Court noted that the government had attempted to expressly waive this argument, but that did not relieve the defendants of their burden to show plain error.

As to the sentence, the defendants, who were convicted of both mail fraud and falsifying immigration forms, argued that the district court should have applied 2L2.1 instead of 2B1.1.  Although the calculation began with 2B1.1, since that produced a higher offense level, the defendants argued that the cross-reference provision in 2B1.1(c)(3)(C) applied.   Applying circuit precedent, the Court rejected that argument, finding that the heart of the offense conduct was a fraud that more aptly fit 2B1.1 rather than 2L2.1.  The Court also found that this analysis was supported by the commentary governing the cross-reference provision, and there was no inconsistency with the text of the Guideline.  The Court again cast doubt on whether the rule of lenity applies to the Guidelines but found it unnecessary to resolve that issue because the language was not grievously ambiguous.

Martin: No Deficient Performance in Advising Defendant About Immigration Consequences

In Martin v. United States, No. 18-12643 (Feb. 4, 2020) (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.

The defendant alleged that he would not have pled guilty to access device fraud and aggravated identity theft but for counsel’s erroneous advice about the deportation consequences of his plea.  Specifically, he alleged that counsel failed to advise him that deportation would be mandatory for an aggravated felony conviction, and that counsel informed him that the loss amount would be less than the aggravated-felony threshold.  On appeal, the Court found no deficient performance.  His convictions did not make deportation presumptively mandatory.  And because the deportation consequences were uncertain and subject to an immigration proceeding, counsel was required to advise him only that his pending criminal charges may carry a risk of adverse immigration consequences.  Furthermore, counsel could not have predicted the sentencing court’s loss findings, to which he objected, and the defendant may have had another opportunity to contest them in the immigration proceeding.  Finally, the Court found no abuse of discretion in denying an evidentiary hearing, as the allegations in the 2255 motion were contradicted by the record.

Cabezas-Montano: Upholding MDLEA Convictions and Sentences Over Numerous Challenges

In United States v. Cabezas-Montano et al., No. 17-14294 (Jan. 30, 2019) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendants' title 46 convictions and sentences in an 80-page opinion.

First, the Court rejected, as foreclosed by precedent, the defendants' argument that the MDLEA was constitutional on various grounds.

Second, the Court concluded that the government met its burden to prove that the vessel was a stateless vessel subject to the jurisdiction of the United States.

Third, applying plain error, the Court rejected the argument that the government purposely delayed presenting the defendants the United States by 7 weeks.  Because this argument was raised for the first time on appeal, there was no evidence to support the assertion that the delay was purposeful or unnecessary.  The Court declined to apply a presume undue delay.  And the Court found that the 48-hour requirement for presentment did not apply in this context.

Fourth, the Court held that binding precedent foreclosed the defendant's argument that the Fifth Amendment prohibited the government from using his post-arrest, pre-Miranda silence as evidence of guilt.

Fifth, the Court found that the evidence was sufficient to support the convictions.

Sixth, the Court found no abuse of discretion in denying a motion for mistrial based on the failure to turn over Brady material because he could not show that the evidence was favorable rather than incriminating.

Seventh, the Court held, in accordance with circuit precedent, that the safety valve did not apply to the MDLEA (before the First Step Act) and that this did not violate equal protection.  The Court again left open whether the safety valve's truthful disclosure requirement violated the right against self-incrimination.

Eighth, the Court upheld the denial of a minor-role reduction to the defendants.  Because they did not identify other participants in the offense, the district court was not required to consider the relative culpability of unknown higher-level co-conspirators who recruited them and organized the offense.

Ninth, the Court found that the district court provided a sufficient explanation of the reasons for its sentence under 3553(c).

Tenth, the Court rejected the defendants' argument that the district court refused to vary downward because they exercised their right to go to trial.

Lastly, the Court found that the defendants' low-end sentences were not substantively unreasonable.

Bane: Affirming Denial of Coram Nobis Challenge to Forfeiture Order Due to Procedural Default

In United States v. Bane, No. 18-10232 (Jan. 24, 2020) (William Pryor, Martin, Sutton (6th)), the Court affirmed the denial of a writ of coram nobis.

After their convictions became final, the defendants petitioned for a writ of coram nobis, challenging their forfeiture judgment in light of the Supreme Court’s ruling in Honeycutt.  Initially, the Court found that the defendants had standing because they were challenging the preliminary (not final) forfeiture order.  As to the merits, the Court assumed, without deciding, that coram nobis could be used to challenge a forfeiture order and that Honeycutt applied retroactively.  The Court affirmed, however, because the defendants procedurally defaulted their claim by not raising it on direct appeal.  The Court found that a Honeycutt error is not jurisdictional because the indictment charged a federal offense; even if the forfeiture allegations were insufficient, that went only to the sentence.   The Court also found that the cause and prejudice exception to procedural default did not apply: they failed to show cause because their claim was not sufficiently novel just because Honeycutt had not yet been decided; and they failed to show prejudice either, as one defendant was responsible for all the proceeds, and the government could have obtained the same property against the other defendant through restitution.

Judge Martin concurred in part and dissented in part, opining that the error was jurisdictional as to one defendant in light of the Supreme Court’s decisions in Welch and Montgomery v. Louisiana.  She reasoned that, as to the one defendant, the forfeiture amount exceeded the statutory limits.

Mancilla-Ibarra: Probable Cause Supported Arrest, and Safety Valve Did Not Apply Based on Failure to Disclose All Truthful Information

In United States v. Mancilla-Ibarra, No. 17-13663 (Jan. 15, 2020) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's drug conviction and sentence.

First, the Court upheld the denial of a suppression motion, finding that probable cause supported the defendant's arrest based on information provided by an informant.  The Court found that, under the totality of the circumstances of that case, the informant's tip was shown to be veritable, reliable, and corroborated.

Second, the Court upheld the refusal to apply a two-level reduction under the safety-valve provision in 2D1.1(b)(17).  At issue was whether the defendant satisfied the fifth criteria for truthfully disclosing all information about the offense.  To show that the defendant failed to do so, the government relied on testimony by an agent with only second-hand information who had no personal knowledge about the defendant's interview.  That equivocal and uncorroborated account was not sufficiently reliable.  However, the defendant bore the burden to prove that he disclosed all truthful information, and the record undermined his assertion that he made only two drug deliveries.

Justos: Naturalization Form Containing Adjudicator's Notes Was Admissible and Did Not Violate Confrontation Clause

In United States v. Santos, No. 18-14529 (Jan. 9, 2020) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendant's convictions for naturalization fraud.

The Court rejected the defendant's argument that it was error for the court to admit a naturalization application form containing written notations made by the interviewing immigration officer who did not testify at trial.  The Court first found that the form was admissible non-hearsay as an adopted admission by an opposing party, because the applicant adopted the form by signing it at the end of the interview.  The Court also found that the form was admissible under the public records exception to hearsay because it was part of the A-file, immigration officers routinely complete the form during non-adversarial interviews with applicants, and the primary purpose of the form is to administrate the naturalization process, not criminal prosecution.  The Court also rejected the defendant's Confrontation Clause challenge because the application form was not testimonial.  It was a public record produced as a matter of administrative routine for the primary purpose of determination eligibility for naturalization, not for the purpose of criminal prosecution.

The Court also found no abuse of discretion by permitting the government to elicit testimony about the inculpatory portion of a post-Miranda statement but prohibiting the defendant from eliciting further testimony about the exculpatory portion.  The rule of completeness did not apply because the exculpatory part of the statement did not explain or clarify the inculpatory part of the statement.

Finally, the Court found that there was sufficient evidence to support his conviction for unlawfully procuring naturalization, finding that his false statements were knowingly made and material to procuring naturalization.   

Brown: Upholding Dismissal of Juror Based on Religious Beliefs

In United States v. Brown, 17-15470 (Jan. 9, 2020) (Rosenbaum, William Pryor, Conway), the Court affirmed the defendant's convictions.

The main issue was whether the district court abused its discretion by dismissing a juror who told other jurors that the Holy Spirit told him that the defendant was not guilty.  In a lengthy opinion, the Court concluded that there was no abuse of discretion because the district court made a finding that the juror meant that the Holy Spirit told him to acquit regardless of the evidence, not that the Holy Spirit would guide him in his review of the evidence.  The Court also rejected the defendant's arguments that the district court lacked a sufficient basis to inquire into the juror's statements, that the court's inquiry violated Rule 606(b), and that the court's dismissal violated the Religious Freedom Restoration Act, the juror's First Amendment rights, and the Sixth Amendment right to a unanimous verdict.

Judge Conway concurred but wrote separately to emphasize that the majority opinion did not mean that a juror could not use religious beliefs to seek guidance when applying the law to the evidence in the case.  Rather, the Court held only that the district court did not abuse its discretion by finding that the juror was not following the court's direction to consider the evidence.

Judge Pryor issued a 60-page dissent, criticizing the majority for mischaracterizing the juror's comments and for making it too easy to disqualify jurors who hold religious beliefs.

Oliver: Georgia's Terrorist Threats Offense Is Not a Violent Felony Under the ACCA

In United States v. Oliver, No. 17-15565 (Jan. 6, 2020) (Wilson, Jill Pryor, Tallman (9th)), the Court held that a Georgia offense for making terroristic threats is not a violent felony under the ACCA's elements clause.

The Court concluded that the Georgia statute was indivisible under Mathis because the statute, state case law, pattern jury instruction, and record of conviction did not make clear whether the alternatives were means or elements.  Therefore, the Court resolved the inquiry in favor of indivisibility.  And the Court concluded that the statute was categorically overbroad because it could be committed by threatening or burning property, which did not have as an element the threatened use of force against a person.

Judge Tallman dissented.  He agreed that threatening to burn a building did not satisfy the elements clause, but he opined that the statute was divisible based on its structure, state court decisions reflecting charging practices, and the indictment in the defendant's case (which was not in the record but was quoted by the government and PSI).  And he opined that threatening to commit a crime of violence with the purpose of terrorizing another, the section under which the defendant was charged, satisfied the elements clause because it necessarily required a threat against a person.

Hill: Exclusionary Rule Inapplicable in Revocation Proceedings

In United States v. Hill, No. 19-10647 (William Pryor, Jill Pryor, Marcus) (per curiam), the Court held--without oral argument--that the exclusionary rule does not apply in supervised release revocation proceedings.

In so holding, the Court joined six other circuits that have reached that conclusion.  The Court relied primarily on a Supreme Court decision declining to extend the exclusionary rule to state parole revocation proceedings.  The defendant failed to present any argument on appeal for why that decision did not apply equally to the supervised release context.  

Bankston: Selling Body Armor Is Not a "Use" of Body Armor Under USSG 3B1.5

In United States v. Bankston, No. 18-14812 (Grant, Martin, Newsom), the Court vacated the defendant's sentence based on the miscalculation of his guideline range.

Specifically, the Court accepted the defendant's argument, raised for the first time on appeal, that the district court erroneously applied an enhancement for the "use" of body armor under USSG 3B1.5.  The commentary explained that use of body armor required either active employment to protect the person from gunfire, or use as a means of bartering.  The defendant, however, did no more than sell body armor for money, which was different than bartering, as bartering meant trading goods without the use of money.  Finding the language of the commentary clear, the Court rejected the government's reliance on legislative history and purpose.  And having found that the district court committed an error that was plain, there was not dispute that the remaining plain-error prongs were satisfied.

Vineyard: Tennessee Sexual Battery is Covered Sex Offender Under SORNA

In United States v. Vineyard, No. 18-11690 (Dec. 20, 2019) (Julie Carnes, Marcus, Kelly (10th)), the Court upheld the denial of a motion to dismiss a conviction for failure to register under SORNA.

The Court rejected the defendant's argument that his prior Tennessee conviction for sexual battery was not a covered "sex offense" under SORNA, which (as relevant here) required "sexual contact" as an element.  First, the Court held that the categorical approach (rather than a circumstance-specific approach) applied.  Second, the Court held that, based on dictionary definitions and common understanding, "sexual contact" under SORNA meant a touching or meeting of body surfaces where the touching or meeting is related to or for the purpose of sexual gratification.  The Tennessee offense required such contact, and the defendant did not argue otherwise.  Third, the Court rejected the defendant's argument that "sexual contact" under SORNA instead incorporated a broader meaning from an unrelated federal statute.  Finally, even if the Court used that broader meaning, it concluded that the Tennessee offense satisfied it.  The Court rejected as "border[ing] on the absurd" the defendant's argument that the Tennessee offense was overbroad because it required contact with the "primary genital area" rather than just the genitals.  And the Court rejected the defendant's argument that Tennessee case law permitted the contact to be with the lower back or abdomen.

Perez: Threat-of-Death Enhancement Did Not Apply Where Bank Robber Threatened Harm But Not Death

In United States v. Perez, No. 17-14136 (Nov. 26, 2018) (Rosenbaum, Tjoflat, Pauley) (per curiam), the Court held that the district court clearly erred by applying the threat-of-death enhancement in the bank robbery Guideline, 2B3.1(b)(2)(F).

Accepting the government's concession, the Court concluded that, on the facts of this case, the defendant's conduct during two bank robberies would not have put a reasonable person in fear of death (as opposed to mere harm or danger).  While the defendant's notes to the tellers threatened harm in general, there was nothing to communicate a threat of death.  He did not state or imply that he had a weapon.  He did not wear clothing that could have concealed a weapon.  He did not wear a disguise.  He did not make any threatening gestures or act menacingly.  His note stated that he had kids to feed.  He did not aggressively demand money.  And, during one robbery, the teller rebuffed his demands; and, during the other, the teller left the counter and returned several minutes later.  Applying the enhancement under these facts would have impermissibly led to applying the enhancement in all bank robberies.

Achey: Government Not Required to Prove Specific Drug Type When Included in the Indictment Only for Sentencing Purposes

In United States v. Achey, No. 18-11900 (Nov. 21, 2019) (Robreno, William Pryor, Jill Pryor), the Court affirmed the defendant's conviction for conspiracy to distribute a controlled substance.

The defendant argued that the evidence was insufficient because the government was required to prove that he conspired to distribute a specific controlled substance, but at trial it proved only that he distributed a controlled substance in general.  The Court rejected that argument.  The Court held that, under 21 U.S.C. 841(a)/846, the government was generally required to prove a conspiracy to distribute only a generic controlled substance; the type of controlled substance was not an element of the offense but was relevant only for sentencing purposes under 841(b).  While the government must prove the specific type of drug when it is charged as an element in the indictment, the indictment's reference to a specific drug here was fairly read as relevant only for sentencing purposes, as evidenced by the word "involving" and a citation to 841(b).  And, on the particular facts of this case, the Court found sufficient evidence of a conspiracy to distribute a controlled substance in general.

Brown: Hobbs Act Conspiracy Is Not a Crime of Violence

In Brown v. United States, No. 17-13993 (Nov. 12, 2019) (Martin, Rosenbaum, Jill Pryor) (per curiam), the Court granted the parties' joint motion for summary reversal of the denial of a 2255 motion challenging a 924(c) conviction.

First, the Court determined that Brown's 924(c) conviction was predicated solely on Hobbs Act conspiracy.   Although the indictment referenced both Hobbs Act conspiracy and two drug trafficking crimes, and the factual proffer included facts about the drug crimes, the plea agreement and plea colloquy showed that Brown's 924(c) conviction was based solely on the Hobbs Act conspiracy.  Those facts distinguished this case from In re Navarro, where the plea agreement referred to both Hobbs Act conspiracy and drug-trafficking crimes.

Second, and joining other circuits, the Court held that Hobbs Act conspiracy was not a crime of violence under the elements clause in 924(c)(3)(A).  The Court explained that neither an agreement to commit a crime nor knowledge of the conspiratorial goal necessarily requires the use, attempted use, or threatened use of force.  And a defendant's voluntary participation in the conspiracy can manifest itself in countless non-violent ways.

In re Wright: Denying Successive Application Based on Rehaif

In In re Wright, No. 19-13994 (Nov. 7, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Rehaif.

The applicant sought to make two claims.  First, he claimed that he was actually innocent of his 922(g)(1) offense in light of Rehaif because he did not know he was a felon.  However, relying on its earlier decision in In re Palacios, the Court ruled that this claim did not satisfy the gatekeeping criteria in 2255(h)(2) because Rehaif was a statutory (not constitutional) decision, and the Supreme Court had not made it retroactive to cases on collateral review.

Second, the applicant claimed that he received ineffective assistance of counsel when his counsel advised him to plead guilty.  He had previously been convicted of a felon-in-possession offense in state court, and he claimed that his subsequent federal conviction violated his double jeopardy rights.  The Court denied him leave to pursue that claim in a 2255 motion because he did not identify any newly discovered evidence, and the Supreme Court had not issued any new rule of constitutional law to support his claim.

Judge Rosenbaum concurred.  She agreed that the Rehaif claim could not be brought in a successive 2255 motion, but she suggested that he may be able to do so in a 2241 petition.  She explained that Rehaif applied retroactively.  And although Eleventh Circuit law would preclude him from filing a 2241 petition, that law did not govern his case because he was incarcerated in the Fourth Circuit.  Accordingly, she suggested that he attempt to file a 2241 in that Circuit.