Moran: Upholding Convictions for Attempted Child Pornography Production

In United States v. Moran, No. 21-12573 (Jan 13, 2013) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for attempting to produce child pornography.

The defendant commented on several “mom blog” posts asking mothers to display sexually explicit imagines of their young daughters.  First, the Court rejected the defendant’s sufficiency argument that he lacked the specific intent to have bloggers post child pornography because, even if that was unlikely to happen, he still could have desired that result. And that was true even if he also intended to troll people online.

Second, the evidence was sufficient to allow a jury to conclude that the defendant knew that, if produced, the child pornography he sought would travel in interstate commerce.  The Court rejected the defendant’s argument that he first had to know that his attempt would succeed.

Finally, and reviewing for plain error, the evidence was sufficient to show that the defendant took a “substantial step” toward committing the offense.

Harrison: Georgia robbery statute is divisible, and Georgia robbery by intimidation is a "crime of violence" under the enumerated offense clause

In United States v. Harrison, No. 21-14514 (Jan. 10, 2023) (Wilson, Jill Pryor, Ruiz), the Court held, on a government appeal, that Georgia’s robbery statute is divisible, and that Georgia robbery by intimidation is a “crime of violence” under the Guidelines.

First, the Court held that, under Mathis, Georgia’s robbery statute was divisible into three separate crimes: robbery by force, robbery by intimidation, and robbery by sudden snatching.  The Court reached that conclusion based on the text of the armed robbery statute, Georgia case law, and the Georgia jury instructions.  The Court rejected the Fourth Circuit’s contrary conclusion based on its reading of the jury instructions.  Having determined that the defendant was convicted of robbery by intimidation, the Court held that it was a “crime of violence” under the enumerated offense clause of the Guidelines because Georgia robbery by intimidation satisfied the “generic” definition of robbery. 

Esformes: Upholding Convictions/Sentences Over Numerous Challenges and Government Misconduct

In United States v. Esformes, No. 19-13838 (Jan. 6, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed the defendant’s healthcare fraud/kickback/money laundering convictions, as well as restitution and forfeiture awards. 

As an initial matter, the defendant’s challenges to his 20-year prison sentence were moot because President Trump commuted that part of his sentence.  The defendant also argued that the commutation prevented the government from re-trying him on one count on which the jury hung.  However, the Eleventh Circuit lacked jurisdiction to review that argument because the hung count was not part of the final judgment over which the Court had jurisdiction.

Second, the district court properly declined to dismiss the indictment or disqualify the prosecution team in light of admitted government misconduct intruding on attorney-client privilege, because the defendant could not show “demonstrable prejudice.”  Circuit precedent foreclosed any presumption of prejudice, and the defendant did not make any effort to show prejudice, which the district court found did not exist because the privileged materials did not form the basis of the charges, were not admitted at trial, and did not give the government any strategic advantage.  Whether the prosecutors acted in bad faith was not relevant.

Third, federal prosecutor Elizabeth Young did not have a conflict of interest.  Her professional interest in avoiding and challenging sanctions did not make her an “interested prosecutor” that required her recusal.  And she did not violate the advocate-witness prohibition by participating in the hearing on the motion to disqualify her.  The defendant invited any such error by calling her to the stand.  And, in any event, this argument would fail because she was not testifying to the jury about the charges but rather to the magistrate judge about her own investigatory work.

Fourth, the district court properly admitted the government’s expert testimony.  The district court completed the Daubert evaluation before admitting the testimony, and it was not an abuse of discretion for the court to defer ruling until after the jury heard the testimony.  Nor was it an abuse of discretion to actually admit the testimony under Daubert.

Fifth, the court’s restitution order was not clearly erroneous because the loss amount was supported by record evidence.

Finally, the court’s forfeiture order was lawful because the underlying money laundering convictions were supported by sufficient evidence.  And Supreme Court precedent permitted the judge to make its own calculation of the forfeiture amount, even if it differed from the jury’s special verdict.

 

Judge Grant authored a concurrence.  Although it was harmless here (because the expert opinion was properly admitted), she opined that deferring a ruling on admissibility of expert testimony until after the jury hears it is fraught with risk and should be avoided.  

Downs: Transferring Photos from Phone to Hard Drive is "Production" Under Child Pornography Statutes

In United States v. Downs, No. 21-10809 (Jan. 6, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for producing and possessing child pornography.

First, the Court held that the evidence was sufficient to satisfy the interstate-commerce element because transferring photos from a cell phone to hard drives constituted “production,” and the hard drives were manufactured abroad.

Second, the district court did not err by discharging an impaneled-but-not-sworn jury in light of an impending storm.  Because the jury was never sworn, jeopardy never attached, and the defendant therefore had no right to have his case decided by the jury that was initially impaneled.  Nor did the district court plainly err by discharging the panel outside the defendant’s presence; the pre-trial hearing about the discharge of an unsworn jury did not implicate the Confrontation Clause or the due process right to be present in order to defend against the charges.  While Rule 43 plainly did require that the defendant be present, this error did not affect his substantial rights.

Third, the victim testified that the defendant took photos of her using a flip phone, while the forensic expert testified that the photos were taken with a particular Samsung model.  The defendant argued that, because that Samsung model was not a flip phone, the victim’s testimony was “factually impossible” and the evidence was therefore legally insufficient.  The Court rejected that argument, noting that credibility questions were for the jury to resolve, and there was no evidence about whether the Samsung model was a flip phone or not.

Ruan: Vacating Substantive 841 Convictions due to Erroneous Jury Instruction on Mens Rea

In United States v. Ruan, No. 17-12653 (Jan. 5, 2023) (Wilson, Newsom, Coogler) (per curiam), the Court affirmed in part and vacated in part the defendants' convictions.

This case was on remand from the Supreme Court, which clarified the mens rea standard for a doctor’s liability under the federal drug statute, 21 U.S.C. 841.  The Supreme Court explained that the defendant must have knowingly or intentionally dispensed a controlled substance, and knowingly or intentionally did so in an unauthorized manner.  What matters in that regard is the defendant’s subjective mens rea.  Applying that new standard to the facts of this case, the Eleventh Circuit held that the district court’s “good faith” instruction was insufficient because it did not make clear that the defendant’s subjective intent was what mattered.  As to the defendants’ substantive drug convictions, the Eleventh Circuit held that this erroneous instruction was not harmless because the jury may have convicted based on an objective reasonable-doctor standard and may not have convicted had it been properly instructed on a subjective standard.  However, the Court found that the erroneous instruction was harmless as to the remaining convictions for conspiracy to violate the Controlled Substances Act, conspiracy to commit health care fraud, conspiracy to violate the Anti-Kickback statute, conspiracy to commit mail or wire fraud, conspiracy to violate RICO, and money laundering.

Jackson: Court Reverses Course and Applies Version of CSA Schedules in Place When Defendant Was Convicted of Prior State Drug Offense

In United States v. Jackson, No. 21-13963 (Dec. 13, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court reversed course and held that the Supreme Court's reasoning in McNeill v. United States, 563 U.S. 816 (2011), requires the conclusion that ACCA's "serious drug offense" definition incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.

Mr. Jackson's prior convictions included convictions for violating Fla. Stat. § 893.13 in 1998 and in 2004 with conduct involved cocaine.  In 1998 and in 2004, § 893.13 criminalized selling, manufacturing, delivering, or possessing with the intent to sell, manufacture, or deliver, cocaine and cocaine-related substances, including a substance called ioflupane.  The federal version of Schedule II of the Controlled Substances Act ("CSA") also encompassed ioflupane in 1998 and 2004.  The federal government only exempted ioflupane from Schedule II in 2015.  So, in 2017, when Mr. Jackson possessed the firearm that resulted in his federal conviction, ioflupane was not a controlled substance "as defined . . . [under] the Controlled Substances Act."

Be that as it may, however, the Court ultimately held that ACCA's definition of "serious drug offense" incorporates the version of the controlled-substances schedules in effect when the defendant was convicted of his prior state drug offense.  The Court so held because of the Supreme Court's reasoning in McNeill, wherein the Supreme Court construed ACCA’s third criterion for qualifying prior state drug offenses: the requirement that the state law prescribe “a maximum term of imprisonment of ten years or more” as a punishment for that drug offense.  In line with McNeill, the Court reasoned that it could not be correct that subsequent changes in state law could erase an earlier conviction for ACCA purposes.  The Court also reasoned that because it must construe the definition of a federal "serious drug offense" to incorporate the CSA in existence at the time of the prior federal drug conviction, it could not simultaneously construe the federal “serious drug offense” definition’s single use of that term—Controlled Substances Act—to incorporate the federal drug schedules in effect at the time the defendant committed the federal firearm offense.  In the Court's view, the structure of ACCA’s parallel definitions of “serious drug offense” for state and federal prior convictions logically requires the conclusion that the state-offense definition incorporates the federal drug schedules in effect at the time of the prior state drug conviction.  As such, Mr. Jackson's prior cocaine convictions qualify as "serious drug offenses" under the ACCA.  

Judge Rosenbaum filed a separate concurrence to express "deep[] concern[] that [the Court's] reading seemingly requires the 'ordinary person' to be an expert in the ACCA and in historical knowledge of the federal drug schedules."  She noted that incorporating the federal drug schedules in effect at the time of the federal firearm offense "would be far more consistent with how [courts] generally construe statutes," as well as consistent with "Congress's determination to decriminalize certain substances."  As a result, she "urge[d]" Congress to consider amending the statute to incorporate the version of the controlled-substances list in effect when the defendant commits his federal firearm offense."              

Garcon: En Banc Court Holds Disqualifying Safety-Valve Criteria in 3553(f)(1)(A)-(C) Are Conjunctive, Not Disjunctive

In United States v. Garcon, No. 19-14650 (Dec. 6, 2022), the en banc Court--in an opinion authored by Chief Judge Pryor--considered whether, in the First Step Act, the word "and" means "and" with regard to a grant of safety-valve relief.  More specifically, the en banc Court considered the language of 18 U.S.C. § 3553(f)(1), which empowers a court to grant a criminal defendant relief from a mandatory minimum sentence only if "the defendant does not have" "more than 4 criminal history points," "a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense."    

The Majority--in an opinion drafted by Chief Judge Pryor and joined in full by Judges Wilson, Jill Pryor, Newsom, Luck, and Lagoa--after considering the text of the statute and applying the ordinary-meaning canon, held that because the conjunctive "and" joins together the enumerated criminal history characteristics in (A)-(C), a defendant must have all three before he is ineligible for safety-valve relief.  In so holding, the Majority specifically rejected the government's distributive reading of the word "and," declining "to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome."      

Judge Rosenbaum concurred in the judgment only, noting that she would have resolved the issue by applying the rule of lenity.  

Judge Newsom, joined by Judge Lagoa, filed a separate concurrence to note that no canon of construction can make the word "and" mean "or" because the text is unambiguous.  If Congress made a mistake, it should exercise its authority to amend the statute; "Article III doesn't empower [the Court] to do Congress's job for it."

Judge Jordan dissented, explaining that, depending on the context, the word "and" can be read disjunctively in legal texts.  He also set out the views of the Senators who proposed the provision that became § 3553(f)(1) as further support.  

Judge Branch, joined in full by Judges Grant and Brasher, and in part by Judge Jordan, dissented.  She noted the circuit split on this issue before reasoning that the Majority's interpretation was contrary to the structure and context of the statute, and created two surplusage problems--first, it renders an entire subsection, (f)(1)(A), redundant; and second, it disregards Congress's plain instruction that all pertinent statutory determinations for purposes of § 3553(f)(1) are to be made "as determined under the sentencing guidelines."  After consideration of context and structural cues, in her opinion, the best reading of § 3553(f)(1) is that it bars safety-valve relief for defendants who have any one of the enumerated criminal history characteristics in (A)-(C).      

Judge Brasher authored a separate dissent to comment on criminal-history-based sentencing and to "give some advice to district judges about how to deal with the majority's decision."   

BGG: In Government Appeal, District Court Abused its Discretion by Dismissing Information With Prejudice Under Rule 48(a)

In United States v. B.G.G., No. 21-10165 (Nov. 22, 2022) (Wilson, Luck, Lagoa), the Court, on appeal by the government, vacated the dismissal of an information with prejudice under Rule 48(a).

During the pandemic, the Southern District of Florida imposed a temporary moratorium on grand juries.  Concerned that they would not be able to charge the defendant within the statute of limitations, prosecutors filed an information before the statute of limitations expired.  Then, after the limitations period expired, the government moved to dismiss the information under Rule 48(a) without prejudice, which it believed would have triggered a six-month extension within which they intended to bring an indictment.  The district court, however, dismissed the information with prejudice, precluding a subsequent indictment.

On appeal, the Eleventh Circuit held that the district court abused its discretion by committing five separate legal errors.  First, the district court failed to apply the presumption of good faith to the government’s Rule 48(a) motion to dismiss.  That presumption applies even where, as here, the government articulates a reason for the dismissal.  Second, the district court failed to require the defendant to rebut the presumption by showing that the government sought the dismissal in bad faith.  Third, the district erroneously focused on the government’s reasons for filing the information (to preserve the availability of a future prosecution) rather than its reasons for seeking the dismissal (the defendant’s refusal to waive an indictment and consent to an information).  Fourth, the district court failed to apply the correct test in deciding whether to grant leave to dismiss even where the government overcomes the presumption of good faith: it failed to find that the dismissal went to the merits or demonstrated a purpose to harass.  Finally, the district court erred in dismissing with prejudice; where the government, the moving party, seeks dismissal under Rule 48(a) without prejudice before trial, then any such dismissal must be without prejudice and cannot bar a second prosecution.  The Court expressed no view on whether any subsequent prosecution would be barred by the statute of limitations.

Judge Wilson dissented.  He opined that the government’s dismissal was in bad faith and for the purpose of harassment, and it therefore should have been dismissed with prejudice.  In his view, the government sought to achieve a tactical advantage contrary to the defendant’s rights.

Malone: Finding Breach of Plea Agreement by Government

In United States v. Malone, No. 20-12744 (Oct. 26, 2022) (Rosenbaum, Tjoflat, Moody (M.D. Fla.)), the Court, applying plain-error review, vacated Mr. Malone's sentence and remanded for resentencing before a different district court judge.

Mr. Malone was charged with (1) three counts of wire fraud, in violation of 18 U.S.C. § 1343; (2) one count of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312; and (3) one count of sale of a stolen motor vehicle, in violation of 18 U.S.C. § 2313.  He agreed to plead guilty to four counts in exchange for the government's agreement to dismiss one count.  The government reserved the right to oppose a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 if it received information that Mr. Malone acted inconsistently with acceptance of responsibility between the date of the plea hearing and the date of the sentencing hearing.  The government also agreed to move for a one-level reduction for acceptance of responsibility, and to recommend a sentence within the advisory Guidelines range as calculated by the court at the sentencing hearing. 

The PSR recommended that Mr. Malone be denied acceptance of responsibility, which resulted in a guidelines range of 57 to 71 months' imprisonment.  Mr. Malone objected, arguing he had accepted responsibility, and that therefore, his guidelines range should instead be 41 to 51 months' imprisonment.  The government filed a sentencing memorandum seeking a term of imprisonment of 66 months--it did not explain its recommendation other than a general reference to the probation-recommended guidelines range and the § 3553(a) factors--and argued against any reduction at Mr. Malone's sentencing hearing, relying on pre-plea conduct.  The government also argued against any downward variance.  The district court declined to award any deduction for acceptance of responsibility, denied Mr. Malone's motion for a downward variance, and sentenced him to 71 months' imprisonment.      

On appeal, Mr. Malone argued that the government breached the plea agreement by relying on Mr. Malone's pre-plea conduct to argue against acceptance of responsibility and against a sentence within the guidelines range.  The Court--reviewing for plain error because Mr. Malone did not object before the district court that the government had breached the plea agreement--agreed with Mr. Malone.  Applying the framework set forth in Puckett v. United States, 556 U.S. 129 (2009), the Court found error, that was plain, that affected Mr. Malone's substantial rights.  The Court also worried that the government's "repeated, clear violations of the plea agreement" seriously affected the fairness, integrity, and public reputation of the judicial proceedings.  As such, the Court remanded for resentencing according to the terms of the plea agreement before a different judge.       

Judge Tjoflat dissented.  He asserted that such a claim--the government's unobjected-to breach of a plea agreement--cannot be raised on direct appeal (because it is not an error committed by the district court), and instead must be raised in a collateral attack in order to develop a complete factual record as to why Mr. Malone's attorney did not object.  He also asserted that the majority's analysis was improper because it is premised on the idea that the government can withhold evidence from sentencing judges based on promises made in plea agreements.  He recommended that the Court take up en banc the issue of the government's obligations under 18 U.S.C. § 3661 at sentencing.     

Conage: Fla. Stat. 893.135 Trafficking Is a "Serious Drug Offense" Under the ACCA

In United States v. Conage, No. 17-13975 (Sept. 30, 2022) (per curiam), the Court affirmed the defendant’s ACCA sentence based on a prior drug trafficking conviction under Fla. Stat. 893.135.

The defendant argued that his prior conviction was not a ACCA “serious drug offense” because 893.135 can be committed by purchase, whereas the ACCA requires possession with intent to distribute.  In a prior opinion, the Eleventh Circuit certified a question to the Florida Supreme Court about whether “purchase” under 893.135 necessarily required actual or constructive possession.  The Florida Supreme Court held that it did.  In light of the Florida Supreme Court’s opinion, the Eleventh Circuit rejected the defendant’s argument and affirmed his ACCA sentence.

Grushko: Upholding Access Device Fraud Convictions/Sentences Over Various Challenges

In United States v. Grushko, No. 20-10438 (Sept. 23, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the defendants’ convictions and sentences for conspiracy to commit access device fraud.

First, the Court held that officers did not violate the Fourth Amendment by entering the defendants’ home after detaining them outside.  Under the totality of the circumstances, the officers had reason to believe that one of the defendants was still inside the home because they did not know the identity of the men they had detained.  Although they had previously seen a picture of the defendant, his appearance had since changed, and the officers were not permitted to look through the wallets of the men because they were not under arrest.  And the officers heard noises from inside the home, and so had reason to believe that the defendant was still inside.

Second, the district court did not abuse its discretion in making comments to the voir dire panel about types of forensic evidence that might be seen on TV.  Although the statements were unnecessary and unwise, it was not reversible error because the court did not suggest that the government did not have to prove the elements or was relieved its burden of proof.  Nor did the statements create a mandatory presumption in favor of the government or entitle the jury to discount the defendant’s arguments in closing about whether the absence of fingerprint evidence created a reasonable doubt.

Third, as for the sentences: it was not impermissible double counting to apply a two-level enhancement for possessing device-making equipment just because that conduct underlied the conviction; there was no clear error in applying an aggravating-role enhancement because the defendants were organizers and leaders of the scheme, which involved another participant, and it did not matter if the two defendants were equally culpable; the district court adequately explained the sentence, and so it was not procedurally unreasonable; and any error as to the loss calculation was harmless because the court said it would have imposed the same sentence, and that sentence was not substantively unreasonable.

Judge Jordan concurred.  He joined the opinion in full, but wrote separately to emphasize that the court’s statements during voir dire were improper.

Doak: Affirming Convictions and Sentences for Transporting and Sexually Abusing Minors

In United States v. Doak, No. 19-15106 (Sept. 7, 2022) (Grant, Luck, Hull), the Court largely affirmed the defendants’ convictions and sentences for offenses involving the transportation and sexual abuse of minors.

As to the counts under 2423(a)—charging the transportation of minors with the intent that they engage in unlawful sexual activity—the defendants argued that the indictment was insufficient because it omitted the underlying state statutes prohibiting the sexual activity.  The Court rejected that argument because the specific state-law offenses are means rather than elements of a 2423(a) offense.  Thus, the state statutes did not need to be included in the indictment; including the statutory language of 2423(a) was enough.  Nor were the defendants deprived of fair notice; although it is best practice to include the state statutes, the indictment here contained key details about the defendant’s intended sexual activity. 

The Court next rejected the defendants’ sufficiency arguments.  As for the main defendant, the evidence at trial was sufficient for a jury to find that he transported the minors with an intent to sexually abuse the minors; even if he had other innocent reasons as well, that did not allow him to elude liability.  As for the co-defendant, who was convicted of aiding and abetting, the evidence was sufficient for a jury to find that she helped the other defendant transport the minors with the knowledge that he was sexually abusing them; it did not matter whether she disapproved of his conduct.

The Court next rejected the defendants’ evidentiary arguments.  First, the Court found that any error under Rule 412 in preventing the defense to offer evidence about one of the victim’s other sexual behavior was harmless; that evidence was offered to show that someone else had abuse her, but the defense was otherwise permitted to advance that theory, and the contrary evidence was substantial.  Second, the Court rejected the defendants’ argument that an FBI forensic expert’s testimony about how children process and disclose incidents of abuse was unreliable, as the expert had participated in thousands of such interviews, and the testimony helped the jury understand why the victims responded differently to the abuse.  Third, the district court did not abuse its discretion under Rule 404(b) or 403 by admitting a video of the defendant slapping the victims’ brother, since it explained why the victims felt threatened by the defendants and why they silently endured the abuse.

 

As for sentencing, the government cross-appealed the co-defendant’s statutory minimum sentence, arguing that it was substantively unreasonable.  However, the Court found no abuse of discretion: the district court did not improperly give her a lower sentence because she merely helped the main defendant as an aider and abettor; it did not overlook her own abuse of the minors and lack of remorse; and because the district court’s weighing of the 3553(a) factors was a close call, that meant there was no abuse of discretion even though the Court might have gone the other way.  In addition, the district court did not clearly err by imposing a special assessment; the defendant was not indigent because he previously failed to disclose that he owned real estate.  Finally, as to restitution, the district court properly relied on a clinical psychologist’s testimony about estimated therapy costs, but the district court erred by ordering the defendants to pay more in living expenses than what the victim herself admitted was an overestimate.

Ifediba: Affirming Healthcare Fraud Convictions and Sentences

In United States v. Ifediba, No. 20-13218 (Aug. 25, 2022) (Jill Pryor, Branch, Ed Carnes), the Court affirmed the defendants' convictions and sentences.   

Mr. Ifediba, a doctor, operated a clinic called CCMC, and employed his sister, Ms. Ozuligbo, as a nurse there.  Mr. Ifediba was alleged to have been running a "pill mill" to distribute controlled substances to patients who had no medical need for them, as well as running an allergy-fraud scheme.  Mr. Ifediba and Ms. Ozuligbo were indicted on substantive counts of health care fraud, conspiracy to commit health care fraud, money laundering of the clinic's unlawful proceeds, and conspiracy to money launder.  Mr. Ifediba was also indicted for unlawfully distributing controlled substances for no legitimate medical purpose and for operating CCMC as a "pill mill."  

On appeal, Mr. Ifediba first challenged the district court's exclusion of his evidence of good care he provided his patients to prove that his medical practice was legitimate.  The Court agreed with the district court that such evidence was improper character evidence because evidence of good conduct is not admissible to negate criminal intent.  The Court also held that the exclusion of such evidence did not violate Mr. Ifediba's constitutional right to present a defense.      

Next, he challenged the district court's decision not to question all jurors individually after dismissing an alternate juror upon learning that the alternate had independently researched the case outside of court.  The Court found that the district court acted within its discretion in addressing the juror misconduct and then instructing the jury collectively.  

Third, he challenged the sufficiency of the evidence supporting his substantive health care fraud convictions that were based upon evidence from medical records rather than patient testimony.  The Court held that patient records were sufficient to support Mr. Ifediba's convictions for substantive health care fraud.  Documentary evidence alone can be sufficient to establish the elements of an offense.   

Finally, he challenged his sentence by disputing the district court's drug-quantity calculation on which the sentence was based.  The PSI calculated the quantity of illegal substances attributable to Mr. Ifediba to be between 30,000 and 90,000 kilograms.  The estimate came from an analysis of Alabama's Prescription Drug Monitoring Program ("PDMP") data spanning the charged conspiracy period.  Mr. Ifediba objected, arguing that the court should derive the drug quantity using only the prescriptions admitted into evidence at trial that the jury found to be unlawful--which would have totaled between 1,000 and 3,000 kilograms.  The Court disagreed with Mr. Ifediba and found his sentence to be procedurally reasonable.       

Ms. Ozuligbo separately appealed the court's exclusion of her cultural-defense evidence proffered to demonstrate that Nigerian cultural norms required her to obey her older brother.  The Court agreed with the district court that such evidence was irrelevant.    

Utsick: Affirming Sentence and Order of Restitution

In United States v. Utsick, No. 16-16505 (Aug. 22, 2022) (Newsom, Marcus, Covington (M.D. Fla.)), the Court affirmed Mr. Utsick's sentence and order of restitution.   

Mr. Utsick was charged with nine counts of mail fraud, in violation of 18 U.S.C. § 1341 based upon an earlier civil action brought by the SEC regarding securities fraud.  Before authorities could arrest him, however, he fled to Brazil.  The United States filed an extradition request, which Brazil granted.  Mr. Utsick then returned to the United States on the eve of his trial.  He entered into a plea agreement--agreeing to plead guilty to one count of wire fraud--and the court sentenced him to 220 months' imprisonment and ordered him to pay $169,177,338 in restitution.  On appeal, he challenged his sentence and order of restitution as violative of the extradition treaty between the United States and Brazil as well as the voluntariness of his guilty plea.  

First, Mr. Utsick argued that his sentence and restitution order violated the terms of his extradition order, the extradition treaty between the United States and Brazil, and the international law doctrine known as the "rule of specialty."  He claimed that all three barred the district court from relying on any conduct prior to November 30, 2005 to determine his sentence.  The Court was unpersuaded.  It noted that when sentencing after extradition, the rule of specialty does not restrict the scope of proof of other crimes that may be considered in the sentencing process and does not control the evidentiary procedural rules of American Courts.  While the rule of specialty bars proof of other crimes in order to exact punishment for those other crimes, it does not bar proof of other crimes as a matter germane to the determination of punishment for the extradited crime.  The Court also found no plain error in the restitution order.  

Second, the Court was also unpersuaded by Mr. Utsick's argument that he entered his guilty plea without a clear understanding of the parameters of his conviction and without the requisite mental competence to knowingly enter into the plea.   

Alvarado-Linares: VICAR Murder and Attempted Murder Crimes of Violence Under § 924(c) Elements Clause

In Alvarado-Linares v. United States, No. 19-14994 (Aug. 16, 2022) (Newsom, Branch, Brasher), the Court affirmed the district court's denial of Mr. Alvarado-Linares's Davis-based § 2255 motion.    

Mr. Alvarado-Linares was convicted of one count of conspiracy under the Racketeer Influenced Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d); four counts under the Violent Crimes in Aid of Racketeering Act ("VICAR"), in violation of 18 U.S.C. § 1959(a)--two for murder and two for attempted murder, in violation of Official Code of Georgia §§ 16-5-1(a) and 16-4-1; and four counts of using a firearm in committing those offenses, in violation of 18 U.S.C. § 924(c).  He was sentenced to three concurrent life sentences plus eighty-five years.  Mr. Alvarado-Linares filed a motion to vacate his four firearms convictions--which resulted in 85-years of consecutive imprisonment--as unconstitutional in light of Davis. 

The Court granted a certificate of appealability on one issue: whether Mr. Alvarado-Linares's four firearms convictions are unconstitutional in light of Davis.  To resolve the issue, the Court noted that Mr. Alvarado-Linares must "bear the burden of showing that he is actually entitled to relief on his Davis claim, meaning he will have to show that his § 924(c) convictions[s] resulted from application of solely the [now-unconstitutional] residual clause," citing to In re Hammoud and Beeman.      

The Court, applying the modified categorical approach, and looking through the VICAR statute to the elements of the underlying state predicate--Georgia malice murder--held that Georgia malice murder is a crime of violence under § 924(c)(3)'s elements clause.  The Court also noted that a VICAR murder conviction predicated on federal murder would also meet the definition of crime of violence.  The Court then held that VICAR attempted murder--both under Georgia and federal law--is also a crime of violence under the elements clause because a conviction for attempted murder requires the government to prove--as an element of the offense--the use or attempted use of physical force.  Finally, the Court reasserted that aiding and abetting offenses can qualify as crimes of violence under § 924(c).  So, even though Mr. Alvarado-Linares's VICAR murder and attempted murder convictions were premised on an aiding and abetting theory, they nevertheless count as crimes of violence under § 924(c).      

Therefore, because Mr. Alvarado-Linares's VICAR convictions predicated on murder and attempted murder qualify as crimes of violence under § 924(c)'s elements clause, his four § 924(c) convictions remain valid after Davis.  

Judge Newsom filed a concurring opinion, writing separately "to ask whether the 'categorical approach' to identifying 'crime[s] of violence' has, to use a technical term of art, jumped the shark."  In Judge Newsom's view, the VICAR statute itself--where VICAR stands for Violent Crime in Aid of Racketeering--indicates that VICAR offenses are crimes of violence.         

Pate: § 1521 Applies to Both Current and Former Federal Officers and Employees

In United States v. Pate, No. 20-10545 (Aug. 10, 2022) (Newsom, Branch, Lagoa), the Court affirmed Mr. Pate's convictions predicated on violations of 18 U.S.C. § 1521, which prohibits the filing of a false lien or encumbrance against the property of any officer or employee of the United States on account of the performance of official duties.  

Mr. Pate was accused of filing various false liens against the former Commissioner of the Internal Revenue Service and the former Secretary of the Treasury for acts they performed as part of their official duties.  He filed these false liens after they had left their positions with the federal government.  On appeal, the Court considered whether § 1521 applies to false liens filed against former federal officers and employees for official actions they performed while in service with the federal government. 

The Court held that the plain language of § 1521 covers both current and former federal officers and employees.  For purposes of § 1521, Congress premised liability on action taken against "an individual described in section 1114," which itself addresses "any officer or employee of the United States or of any agency in any branch of the United States Government." As such, and giving effect to all of § 1521's provisions, the Court reasoned that reading § 1521 to limit its scope only to current officers and employees would fail to give effect to the phrase, "on account of the performance of official duties."  Section 1521 makes it illegal to file a false lien against the property of a federal officer or employee because of something he did as part of his official duties.  Thus, because § 1521’s prohibition depends upon what an individual did while acting as a federal officer or employee, and not simply his employment status at the time of the action at issue, the natural reading of the statute’s language leads to the conclusion that the terms “officer” and “employee” encompass both current and former officers and employees. 

Judge Newsom dissented.  He noted that this case raised a straightforward question of statutory interpretation: Is a former government official an "officer or employee of the United States" within the meaning of § 1114 and, thereby, of § 1521? Affording the quoted language its ordinary meaning, he would answer the question in the negative.  Therefore, because Mr. Pate's filed the liens against individuals when they were no longer officers or employees of the United States, Judge Newsom would have held that Mr. Pate's conduct fell outside the scope of § 1521's prohibition.           

Witt: Affirming Convictions and Sentence for Livestock Forage Disaster Program Fraud

In United States v. Witt, No. 21-10557 (Aug. 9, 2022) (Newsom, Marcus, Middlebrooks (S.D. Fla.)), the Court affirmed Ms. Witt's convictions and sentence. 

Ms. Witt was convicted for her part in a scheme to defraud the federal government out of relief funds intended for farmers affected by drought and fire (the Livestock Forage Disaster Program).  She was convicted of one count of conspiracy to commit wire fraud; two counts of theft of government funds; and one count of aggravated identity theft. 

On appeal, Ms. Witt first challenged the district court's denial of her motion for a new trial, arguing that the weight of the evidence preponderated in favor of a not guilty verdict.  The Court first noted that the government misunderstood Ms. Witt's argument on appeal, and clarified that a challenge to the denial of a motion for a new trial involves a different inquiry from that of a challenge to the sufficiency of the evidence.  The Court then rejected Ms. Witt's challenge.     

Next, Ms. Witt challenged the substantive reasonableness of her sentence, arguing that the district court should have sentenced her to house arrest rather than a traditional prison sentence.  The Court disagreed, finding her sentence of 28 months' imprisonment reasonable.  The Court noted that under 18 U.S.C. § 3582(a), district courts only "impose a term of imprisonment," but that the implementation of that sentence is left to the discretion of the BOP--that is, district courts do not have the authority to dictate whether a sentence is to be served in prison or in home confinement.  Additionally, though U.S.S.G. § 5C1.1(d)(2) provides that if the applicable guideline range is in Zone C of the Sentencing Table, the minimum term may be satisfied by a sentence of imprisonment that includes a term of supervised release with a condition that substitutes home detention, provided that at least one-half of the minimum term is satisfied by imprisonment, Ms. Witt's guideline range of 28 to 32 months placed her in Zone D, not Zone C.        

King: Collateral-Attack Waiver Precludes 2255 Motion Based on Davis

In King v. United States, No. 20-14100 (July 28, 2022) (Grant, Luck, Anderson), the Court affirmed the denial of a 2255 motion based on Davis.

In his plea agreement, the defendant agreed not to collaterally attack his conviction or sentence in a 2255 motion.  After Davis, the defendant brought a 2255 motion, arguing that his 924(c) conviction, which was predicated on conspiracy, was no longer a valid crime.  The Eleventh Circuit held that, even though Davis subsequently announced a new retroactive rule of constitutional law, the defendant’s waiver remained valid under contract principles.  And while the Court had previously recognized limited exceptions to such waivers, including in the case of a jurisdictional defect, the defendant’s Davis claim did not fit any of those exceptions.  Specifically, the Court held that the claim did not involve a sentence exceeding the statutory maximum, because the maximum must be understood based on the law in effect at the time the waiver was signed by the parties.  The defendant bore the risk that there would be a favorable change in the law, and “the government’s wager has paid off” in that regard.

Judge Anderson concurred.  He agreed that the Davis claim did not satisfy the exception for sentences exceeding the statutory maximum.  However, he wrote separately to address the movant’s reliance on an exception for a miscarriage-of-justice/actual innocence.  A footnote in the majority noted that the Court had never adopted such an exception.  And Judge Anderson opined that this case would not satisfy any such exception because the defendant admitted to his involvement in an armed bank robbery at the plea, and that dismissed count could have formed the basis of the 924(c) offense.

Watkins: Sufficient Evidence Supported Convictions for Defrauding Investors

In United States v. Watkins, No. 19-12951 (July 15, 202) (Newsom, Tjoflat, Ed Carnes), the Court affirmed the defendants’ fraud convictions.

The defendants solicited millions of dollars in investments from wealthy and famous people, including Sir Charles Barkley, by misleading them about their ownership interest in the investment company, that the funds would be used for business (rather than personal) purposes, and that other high-profile people were involved in the company.  The defendants also directed a friend to request a loan from a bank where the defendants were already maxed out, and to conceal that the loan was for the defendants.

On appeal, the Eleventh Circuit held that the evidence was sufficient to support the defendants’ convictions.  As for wire fraud, the evidence was sufficient to show an intent to defraud because the misrepresentations affected the nature of the bargain and sought to obtain money to which the defendants were not entitled.  As for bank fraud, the evidence was sufficient because concealing the true recipient of the loan affected the nature of the bargain with the bank.

The Eleventh Circuit held that the district court did not abuse its discretion by denying the defendants’ proposed jury instruction on the “intent to harm” element of wire/bank fraud.  Using the pattern instruction, the court properly instructed the jury that it could not have convicted without finding that the misrepresentations were made with an intent to cause loss or injury to the people from whom he solicited money, and thus to obtain money to which he was not entitled.  The court also properly instructed the jury on the theory of defense.

Finally, the Eleventh Circuit held that the district court did not abuse its discretion by excluding defense evidence about the value of the investment companies.  That evidence would not have affected the government’s theory of the case.  For example, showing that the companies were successful would have done nothing to relieve the defendant from liability for deceiving investors about how their money would be used.

Lewis: No Privity Between State/Federal Prosecutors for Collateral Estoppel, and Upholding Exclusion of Moral Juror for Cause

In United States v. Lewis, No. 20-12997 (July 14, 2022) (Grant, Luck, Hull), the Court affirmed the defendant’s drug convictions.

First, the Court upheld the denial of a motion to suppress.  The argued that collateral estoppel prevented the federal government from re-litigating the legality of the traffic stop, which was already decided in state court.  The Court assumed, without deciding, that collateral estoppel applied to successive criminal prosecutions by different sovereigns, but held that it would not apply here because the defendant failed to establish privity between the state and federal authorities.  There was no evidence that the state was acting as a tool of, or were controlled by, federal prosecutors.

Second, the Court rejected the defendant’s arguments pertaining to jury selection.  It found no abuse of discretion in dismissing a juror for cause where the juror could not sit in judgment due to moral beliefs.  Unlike the religious juror in the en banc decision in Brown, the juror here never confirmed the ability to follow the law and the court’s instructions, and, unlike in Brown, the juror here was not already seated.  In addition, the Court found no clear error in the district court’s finding of discriminatory intent under Batson as to one of the defendant’s peremptory strikes, and that decision was harmless in any event because the defendant did not claim that the juror was unqualified to sit and he did not renew his challenge when given the chance.

Third, the Court upheld the district court’s exclusion of evidence about why the state court proceeding against the defendant was terminated, including the state court’s order finding the federal government’s main witness to be not credible.  Although the district court excluded the evidence as irrelevant, the Eleventh Circuit did not decide whether it was because it was harmless, as there was other overwhelming evidence of guilt.  For the same reason, the Court found no plain error with respect to the defendant’s argument that the exclusion deprived him of his right to present a complete defense.