Dixon: Affirming Drug Trafficking Convictions and Sentences Over Numerous Challenges

In United States v. Dixon, et al., No. 15-14354 (Aug. 24, 2018) (William Pryor, Jill Pryor, Restani), the Court affirmed the defendants drug and firearm convictions and sentences over numerous challenges.

First, the Court concluded that the evidence was sufficient to support the defendants' convictions for conspiracy to distribute 280 grams of cocaine base.  In so concluding, the Court rejected the argument that there were several different conspiracies that only involved some of the defendants, and that a conspiracy requires a command and control structure with one or more "bosses" coordinating the actions of each player.

Second, the Court concluded that the district court did not err by denying a defendant's suppression motion.  It concluded that he lacked standing to challenge the search of his girlfriend's car in which he lacked a possessory interest, and the officers were entitled to search it in any event under the automobile exception due to the odor of marijuana.  The Court also concluded that the defendant's interview at the jail while under arrest for state charges did not violate his right to counsel, because the defendant initiated the conversation.

Third, the Court concluded that sufficient evidence supported a defendant's 924(c) conviction because, despite the small amount of marijuana, there was evidence that he was on his way to sell drugs and he had a firearm in his possession.

Fourth, the Court rejected the defendant's argument that the district court violated his procedural due process rights by not sua sponte conducting a competency hearing due to traumatic brain injury and mental defects, and that such defects rendered invalid his sentence appeal waiver.

Fifth, the Court found sufficient evidence supported a defendant's conviction for a violent crime in aid of racketeering, finding that he possessed the requisite motive of maintaining or increasing his position in the enterprise.

Sixth, the Court found sufficient evidence supported the defendant's convictions for possession with intent to distribute and 924(c).  The Court found no error by giving a Pinkerton instruction based on his role in the conspiracy.

Seventh, the Court found no error by admitting evidence of uncharged conduct.  The Court found no need to address the Rule 404(b) issue because the conduct was intrinsic to the charged offenses, since they were linked in time and circumstance with the conspiracy, and its admission did not violate Rule 403.

Eighth, the Court found that the district court correctly denied a motion for a mistrial based on prosecutorial misconduct at closing because, although the prosecutor misspoke by referencing dismissed charges, it did not prejudicially affect the defendant's substantial rights.  The reference was not extensive, there was no indication that the prosecutor did so deliberately, the evidence was extensive, the prosecutor quickly admitted his error, and the court gave a curative instruction.

Ninth, the Court found that the district court did not err by refusing to instruct the jury on entrapment.  Clarifying that the proper standard of review is de novo, not abuse of discretion, the Court found that, while the undercover officer attempted to persuade the defendant to sell a firearm, he was prosecuted only for possessing a firearm.  Thus, not entrapment instruction was warranted.

Tenth, the Court found that a defendant's sentence was reasonable.  First, the Court found no clear error by applying a four-level role enhancement.  Second, there was no error by finding him responsible for the sale of at least 2.8 kg of cocaine base under the relevant conduct guideline.  Third, the Court found no reversible error in counting a juvenile offense as criminal history because it was within five years of the commence of the offense, and there was no plain error by counting convictions for which adjudication was withheld and it did not affect the guideline range.  Lastly, the Court found the 420-month sentence substantively reasonable because it was in the guideline range and he was not similarly situated to other conspirators who cooperated with the government and received lower sentences.

McIntosh: Particularly Severe Personality Disorder was "Mental Defect" for Civil Commitment Statute

In United States v. McIntosh, No. 16-16442 (Aug. 20, 2018) (William Pryor, Jill Pryor, Anderson) (per curiam), the Court upheld the district court's decision to deny the defendant unconditional release from civil confinement.

The defendant was found not guilty by reason of insanity, and the district court ordered him civilly committed under 18 USC 4243(f).  On appeal, the defendant argued that the district court erred by finding that his risk of danger to others was due to a "mental disease of defect." The Court concluded that there was no clear error given evidence that he suffered from a particularly severe personality disorder.  The Court rejected the argument that, under the statute, mental diseases were limited to those diagnoses that clinicians would classify as such.

Colon: Indiana Causation-of-Injury Battery Statute Satisfied ACCA's Elements Clause

In Colon v. United States, No. 17-15357 (Aug. 16. 2018) (Ed Carnes, William Pryor, Anderson) (per curiam), the Court held, without oral argument, that Indiana battery statutes satisfied the elements clause of the ACCA.

The Indiana battery statute required the causation of bodily injury, which was defined to include any physical impairment, including pain.  The defendant argued that the causation of physical pain did not satisfy the elements clause.  Relying on its en banc decision in Vail-Bailon, the Court disagreed, reasoning that because the statute required the causation of pain, it was necessary "capable" of causing such pain.

Castillo: Guilty Plea Waived Ability to Challenge Pre-Arraignment Delay on Appeal

In United States v. Castillo, No. 17-10830 (Aug. 14, 2018) (William Pryor, Martin, Wood), the Court affirmed the defendant's title 46 conviction and sentence.

First, the Court rejected the defendant's argument that the MDLEA's failure to permit safety-valve relief violated equal protection and due process.  Applying a rational basis test, the Court concluded that there were legitimate reasons for Congress to craft stricter sentences for MDLEA offenses than domestic drug offenses given pressing concerns about foreign relations, global treaty obligations, and deterrence.

Second, the Court rejected as foreclosed by precedent the argument that the MDELA violates due process by subjecting foreign nationals to U.S. prosecution absent a nexus to the U.S.

Third, the Court concluded that the defendant could not challenge the constitutionality of his detention on appeal.  Although he argued that a 19-delay before presentment to a magistrate judge was unreasonable and violated due process, the Court found that his guilty plea precluded him from raising that argument on appeal, citing the Supreme Court's recent decision in Class.  The defendant could not circumvent that bar by characterizing his complaint as a constitutional challenge to the MDLEA.  Thus, the Court could not reach the merits of his detention.

Judge Martin concurred in the judgment.  She agreed with the first two holdings, but disagreed with the holding that, by pleading guilty, the defendant waived his argument that a 19-day detention between arrest and first appearance violated due process.  She did not read Class or circuit precedent as supporting that result.  Nonetheless, she concluded that the delay in this case was reasonable.

Joyner: Applying Good-Faith Exception to Carpenter Error

In United States v. Joyner, et al., No. 17-10289, 17-10826 (Aug. 14, 2018) (William Pryor, Julie Carnes, Antoon) (per curiam), the Court affirmed the defendants' convictions for Hobbs Act robbery and 924(c), but vacated one defendant's sentence due to a plain guideline miscalculation.

First, the Court concluded that the district court did not err by providing the jury with a copy of the indictment listing the dates of the charged robberies in response to a jury question about the dates and times of the offenses.  The defendants argued that supplying the jury with the indictment improperly suggested that it was evidence of guilt without re-instructing the jury that it was not.  The Court concluded that, while it would have been prudent for the court to remind the jury of that, it concluded that the court did not abuse its discretion in failing to do so under the circumstances of this case. 

Second, the Court concluded that the district court's denial of a motion to suppress cell site data did not warrant reversal.  Although the Supreme Court's decision in Carpenter rendered their admission erroneous, abrogating in part prior circuit precedent in Davis, it did not abrogate the alternative good-faith holding in Davis.  The defendants made no argument for why the good-faith exception did not apply where the government complied with circuit precedent then in existence.

Third, the Court found no abuse of discretion in denying a defendant's motions for new counsel due to a breakdown in communication.  After several hearings, the court found that there was no such breakdown, and a defendant's general loss of confidence or trust in counsel, alone, is not sufficient to establish good cause.

Fourth, the Court concluded that the district court did not err by rejecting the defendant's Bruton argument.  The admission of a co-defendant's statement was not erroneous because it was not directly incriminating on its face, but rather became so only after linked with other evidence later introduced at trial.

Lastly, the Court accepted the government's concession the district court erroneously applied a 5-level enhancement rather than a 4-level enhancement under the unit-based grouping guideline in USSG 3D1.4.  Although nobody objected to that error, the Court found that it satisfied the requirements for plain error and therefore vacated the sentence.

Elbeblaway: Upholding Health Care Fraud Convictions but Vacated Forfeiture Order Under Honeycutt

In United States v. Elbeblawy, No. 16-16048 (Aug. 7, 2018) (William Pryor, Martin, Wood), the Court affirmed the defendant's health care fraud convictions but vacated the forfeiture order.

First, the Court concluded that the court did not err by admitting at trial a signed factual basis for a plea agreement that the defendant entered before changing his mind and proceeding to trial.  Although rules of evidence and procedure normally bar that admission, the defendant agreed to waive those rules in the plea agreement, and that waiver is enforceable if voluntary.  The Court rejected the defendant's argument that the waiver was unenforceable, finding that the waiver was unambiguous, and the court did not clearly err by finding a voluntary waiver due to his attorney's failure to explain it.

Second, the Court concluded that the government did not violate Brady by failing to disclose an allegedly exculpatory report about a police interview.  The Court found no reasonable probability of a different outcome from that report, but rather found that it would have had only some minimal impeachment value of a witness, and the evidence was overwhelming even without that witness' testimony.

Third, the Court concluded that the court did not constructively amend the indictment by instructing the jury on the conspiracy count.  Despite the court's slightly different wording from the pattern instruction, the court correctly stated the law and its instruction tracked the pattern almost verbatim.  It observed that cheating the government out of money or property, as charged, was indeed a kind of deceptive interference with the lawful functions of the government. 

Fourth, the Court concluded that the court did not clearly err when calculating the guideline range.  There was no ex post facto violation by sentencing him under the more recent version of the Guidelines because his offense continued after the amendment.  There was no clear error by applying the sophisticated means enhancement.  And there was no clear error in calculating the loss because it was supported by the evidence, including the signed factual basis of his plea agreement.

Lastly, as to the forfeiture  order, binding precedent foreclosed the arguments that forfeiture statutes did not authorize personal money judgments, and that the Sixth Amendment required proof beyond a reasonable doubt.  However, the Court found that the court erred under Honeycutt by imposing a forfeiture order that held the defendant jointly and severally liable for the proceeds of the conspiracy.  Although Honeycutt involved a different statute, the same reasoning applied to the statute for health care fraud.

Maitre: Upholding Agg ID Convictions and Loss Calculation

In United States v. Maitre, No. 17-12166 (Aug. 7, 2018) (Martin, William Pryor, Hall), the Court affirmed the defendant's convictions and sentence for access device fraud and identity theft.

First, the Court upheld the district court's deliberate ignorance instruction.  It concluded that there were facts supporting an inference that the defendant purposefully contrived to avoid learning all of the facts beyond her own denial of knowledge.

Second, the Court found that the evidence was sufficient to uphold her convictions.  As to the conspiracy count, the Court found that she had the requisite knowledge because the home she shared had stolen goods in plain view around the house, she engaged in "heat runs" to avoid being followed by the police, she accompanied the other defendants to throw away evidence.  As for the aggravated identity theft counts, the Court concluded that the defendant constructively possessed the means of identification and that she knew they belonged to real people who had been victimized.

As for the sentence, the Court found no clear error with regard to the loss calculation because credit cards, debit cards, social security numbers, and driver's licenses all qualified as "access devices."  The Court also found no clear error in refusing to deny her a minor-role reduction.

In re Williams: Judges Wilson and Martin Criticize the Rule that Published SOS Holdings are Binding Precedent

In In re Williams, No. 18-12538 (Aug. 1, 2018) (Wilson, Martin, Jill Pryor) (per curiam), the Court denied an application by a state prisoner for leave to file a successive 2254 petition.

Judge Wilson, joined by Judges Martin and Jill Pryor, specially concurred in order to criticize the Court's recent holding in St. Hubert that all published SOS orders are binding precedent.  In a thorough opinion, he explained why that holding was problematic: SOS applications are prepared on a standardized form and often decided without counsel, oral argument, adversarial testing, or the full record; the 11th circuit publishes more SOS orders than other circuits, no other circuits considers itself bound by the 30-day deadline to decide an SOS application, and several other circuits receive briefing and oral argument in SOS application; SOS orders are unreviewable by statute, and so any mistake can be corrected only if a judge sua sponte requests rehearing en banc; and there are no formal rules on when orders can be published or reheard en banc.

Judge Martin, joined by Judges Wilson and Jill Pryor, also specially concurred in order to explain how creating binding precedent through SOS orders "goes far beyond the prima facie examination called for by the statute."  She emphasized that no other circuit examines the underlying merits at the SOS stage.  But the Eleventh Circuit, by contrast, has "entered hundreds of orders denying motions based on this merits inquiry, thus touching many lives."  And, in doing so, it has published at least eight opinions holding, for the first time, that a particular offense was a violent felony or crime of violence.

Watts: Upholding Armed Bank Robbery and Obstruction Enhancements Following Pro Se Trial

In United States v. Watts, No. 17-12066 (July 24, 2018) (Branch, Martin, Jill Pryor), the Court affirmed the defendant's convictions for armed bank robbery and brandishing a firearm during a crime of violence.

First, the Court concluded that the evidence was sufficient to support the convictions because there were eyewitness accounts, clothing found in his car matched that worn by the robber, and he possessed the same caliber ammunition as would be used in the weapon that the robber brandished.

Second, the Court concluded that the district court did not violate his constitutional right to testify on his own behalf.  Although the pro se defendant repeatedly requested to testify, he changed his mind after having off-the-record conversations with his advisory counsel.  The record did not rebut the presumption that the defendant made his decision not to testify knowingly and voluntarily, even if he later had second thoughts.  And it did not indicate that he had a mistaken belief about his ability to testify.

Third, the Court upheld the imposition of a sentencing enhancement for obstruction of justice--namely, for destroying or concealing material evidence.  The Court found that the defendant did far more trying to avoid arrest; rather, he tried to alter his distinctive identifying tattoos that the investigators were looking for, thus destroying material evidence.

Hylor: Florida Attempted First-Degree Murder is a Violent Felony under the ACCA's Elements Clause

In Hylor v. United States, No. 17-10856 (July 18, 2018) (William Pryor, Jill Pryor, Restani), the Court held that Florida attempted first-degree murder was a "violent felony" under the elements clause of the Armed Career Criminal Act.

Relying on circuit precedent, the Court rejected the defendant's argument that murder by surreptitious poisoning would not satisfy the elements clause, because it is "capable" of causing pain or injury.  It was irrelevant that the offense was committed with indirect, rather than direct, force.  Also relying on circuit precedent, the Court found that attempting to commit murder had an attempted use of force as an element.  The Court also reiterated that, under circuit precedent, Florida aggravated assault and robbery were violent felonies.

Judge Jill Pryor concurred in the result.  Although bound by circuit precedent, she opined that the attempted murder offense should not satisfy the elements clause.  She disagreed with circuit precedent conflating an attempt to commit a violent felony with attempt to use physical force, arguing that this conflation rested on faulty logic: one could attempt to commit a violent crime without attempting to use physical force.

Guevara: Evidence Sufficient to Support Conviction for Causing Business to File False FinCEN Form, but Obstruction Sentencing Enhancement Not Sufficiently Supported

In United States v. Guevara, No. 15-14146 (July 11, 2018) (Robreno (E.D. Pa.), Tjoflat, Wilson), the Court upheld the defendant's conviction for causing or attempting to cause a sports car business to file a false FinCEN form with the IRS, but it remanded for reconsideration of whether a two-level sentencing enhancement for obstruction of justice was warranted.

The Court found that the evidence was sufficient to support the conviction.  Although the defendant never tried to persuade, influence, coax, or encourage the business to file a form containing misstatements, he knowingly caused the business to do so.  The defendant negotiated and paid for the vehicles with cash; he knew that the business would be required to complete a form as a result; he solicited his friend to act as a straw owner; and, as a result, the forms contained material misstatements about the identity of the owner.

The defendant also argued, for the first time on appeal, that the evidence was insufficient because the government failed to introduce either the original or certified copy of form submitted to the IRS, but instead introduced an IRS-prepared document summarizing the transactions.  The Court agreed that the failure to admit the IRS form was error under the best evidence rule in Federal Rule of Evidence 1002.  However, applying plain error, the Court concluded that this error did not affect the defendant's substantial rights or the fairness, integrity, or public reputation of the proceedings because, even without any evidence of a form containing the misstatements, the defendant still could have been convicted of attempting to cause the business to file a false form.

The Court, however, remanded for re-sentencing because the district court failed to make sufficient factual findings about how the defendant obstructed or impeded the investigation.  Instead, it made only vague and equivocal statements about his tax returns filed years before the offense, his use of a straw buyer, and his false statements that did not actually impede the investigation.  And the record did not clearly reflect how those statements supported the obstruction enhancement.  Accordingly, the Court vacated the sentence and remanded to allow the district court reconsider the obstruction enhancement and support it with factual findings.

Morales: Consent to Search by a Co-Occupant Was Valid Where Co-Occupant Defendant Was Nearby and Failed to Object

In United States v. Morales, No. 16-16507 (June 29, 2018) (Ed Carnes, Marcus, Ross), the Court upheld the defendant's felon in possession conviction and sentence.

First, the Court upheld the denial of the defendant's motion to suppress a warrantless search of the home based on the consent of a co-occupant.  The Court determined that the consent was voluntary because the two officers did not threaten or intimidate her, she was not restrained, she fully cooperated, and they explained that she had the right to refuse consent.  The Court then rejected the defendant's argument that her consent was invalid because the officers intentionally declined to ask him, a physically present co-occupant, for consent.  The Court emphasized that the defendant did not object, even though he was not far away from the door, and there was no evidence that the officers intentionally removed him from the area so that he could not refuse consent.  And the officers were not required to ask him whether he objected where the co-occupant consented.

Second, the Court found that the evidence was sufficient to support the conviction.  The defendnat admitted that he found the guns, brought them into the home, and placed them in the bag where they were found.  The Court rejected the defendant's argument that his confession was not sufficiently corroborated by other evidence, including the guns, ammunition, bag, and testimony of the searching officer.

Third, and finally, the Court rejected the defendant's argument that his ACCA sentence violated the Eighth Amendment.  That argument was foreclosed by precedent, and the defendant's "out-of-the-blue" argument that the prior precedent rule does not apply to sentencing issues was "without any support in the law."

Henderson: Upholding False-Statement Convictions by VA Employee

In United States v. Henderson, No. 16-16984 (June 27, 2018) (Ripple, Rosenbaum, Jill Pryor), the Court upheld the convictions and sentence for making false statements by a VA employee in connection with the delivery and payment of healthcare services.

First, and reviewing for plain error, the Court rejected the defendant's argument that the government failed to prove that the false statements were "material."  The Court found that the statements, even if ambiguous, had a natural tendency of influencing the decision-making body, because they could have misled a medical professional about whether the health care services had actually be rendered by the VA contractor.  Second, the Court concluded that the government sufficiently established the defendant's statements were made knowingly and willfully because, despite claiming to be informed that the patients had actually received medical services, the government presented evidence at trial to refute that claim.  Similarly, the government presented sufficient evidence to refute his claim that he lacked the requisite mens rea by closing consults only from earlier fiscal years.

Second, the Court upheld the defendant's conviction for making false statements to federal investigators during an interview.  The Court found the evidence sufficient with regard to his mens rea because the statement he made to investigators was inconsistent with other evidence.  And the Court found the evidence sufficient with regard to the materiality of his statement because, regardless of whether the agents already knew the truth or were actually misled, it had the tendency of influencing the government's investigation.

Third, and finally, the Court upheld the application of the enhancement in USSG 2B1.1(b)(15)(A) for the "conscious or reckless risk of death or serious bodily injury."  The government presented evidence showing that the false statements could have delayed and influenced patient care, and the government did not need to show actual evidence of death or serious bodily injury.  Moreover, the fact that the defendant initially refused to participate in the project, coupled with his eventual acquiescence, demonstrated his awareness of the risks posed by his conduct.  Moreover, one of the defendant's arguments was made in a Rule 35 proceeding after the notice of appeal had been filed, and the Court lacked jurisdiction to consider it because he did not amend his notice of appeal.  Finally, it was irrelevant that the probation officer disagreed with applying the enhancement.

Suarez: Upholding ISIS-Related Material Support Convictions and LWOP Sentence

In United States v. Suarez, No. 17-11906 (June 27, 2018) (Wilson, Ed Carnes, Jordan), the Court affirmed both the defendant's convictions for attempting to use a WMD and to provide material support to ISIS, and his life without parole sentence.

The Court concluded that the evidence was sufficient to support his convictions.  As for attempting to use a WMD, the Court rejected the defendant's argument that the government was required to prove a "substantial effect" on interstate commerce.  Instead, the Court concluded that, because this element went only to jurisdiction, the government was required to prove only a minimal effect on interstate commerce.  And the government met that low bar because a witness testified about how a terrorist attack would have affected tourism.  As for attempting to provide material support to ISIS, the Court found the evidence sufficient even though the defendant coordinated only with government informants and undercover officers, because he had the requisite intent to coordinate with and direct his services to ISIS, and he took substantial steps to do so.

As for the sentence, the Court first found no plain Eighth Amendment error.  The defendant was 24 years old, not a juvenile, and attempted to kill as many people as possible by detonating a bomb.  The Court next found no plain error with respect to the guideline calculations, rejecting the defendant's double-counting argument.  The fact that the base offense level and a "terrorism" enhancement were triggered by the same conduct did not constitute double-counting, because the two guidelines served different sentencing considerations and harms: one addressed the attempted use of dangerous materials with intent to injure the US or to aid a foreign entity, while the other addressed actions intended to influence or affect the government through intimidation or coercion.  Finally, the Court found the guideline sentence of life to be substantively reasonable, emphasizing that the district court properly considered what would have happened had the attempt offenses been completed.

Noel: Upholding Convictions for Extraterritorial Hostage Taking of an American Citizen

In United States v. Noel, No. 17-10529 (June 26, 2018) (Anderson, Marcus, Hull), the Court upheld convictions for hostage taking of an American citizen by a Haitian national in Haiti.

First, the Court held that the government was not required to prove that the defendant knew that the victim was an American citizen.  The Court reasoned that the victim's citizenship status was purely jurisdictional, and no mens rea is necessary for jurisdictional facts where the statute is otherwise silent.

Second, the Court rejected the defendant's argument that the statute was limited to crimes of terrorism.  The Court concluded that the plain language of the statute encompassed the defendant's conduct because he seized, detained, threatened to kill, and demanded ransom for the release of the hostage, who was an American citizen.  While the statute was focused primarily on terrorism and crimes involving governmental organizations, the plain language encompassed kidnapping and ransom demands with regard to private parties.  The Court joined every other circuit to address that issue.

Third, and finally, the Court rejected the defendant's argument that the extraterritorial application of the statute to his case violated due process.  Congress expressly provided that the statute would apply extraterritorially where the hostage is an American.  The Court rejected the defendant's argument that Congress lacked the constitutional authority to criminalize non-terrorism conduct committed by a Haitian national entirely in Haiti.  The Court's precedent had previously held that, regardless of whether the statute could be justified by the offenses clause (incorporating the law of nations) or the commerce clause, it implemented an international treaty and was therefore justified by the necessary and proper clause.  Finally, the Court concluded that application of the statute in this case was not arbitrary or fundamentally unfair, because the treaty, signed both by the U.S. and Haiti, provided global notice that such conduct could be prosecuted in a U.S. court.  And, even assuming that something more than the treaty was required, the victim's U.S. citizenship reflected a significant national interest of the U.S. in protecting Americans abroad.

Cozzi: Officer Lacked Even Arguable Probable Cause to Arrest Where He Ignored Easily Verifiable Exculpatory Evidence

Although a civil rights case, the Court's Fourth Amendment probable cause analysis should apply in criminal cases.  The Court emphasized that the officer unreasonably disregarded easily verifiable exculpatory evidence before arresting the plaintiff--specifically, the officer was told that the perpetrator had multiple tattoos, but the officer did not check to see if the plaintiff had matching tattoos before arresting him.  In addition, the evidence connecting him to the crime was otherwise very weak.  The officer received two tips that the plaintiff resembled the perpetrator, but one was anonymous, the officer knew that there was at least one other person who resembled the perpetrator, and the fact that one of the tipster's accurately identified the plaintiff's address and vehicle showed only that the tipster knew the plaintiff, not that he committed the crime.  Furthermore, while the officer found a plastic bag of pills on the plaintiff, that evidence did not match the items that the perpetrator stole, the officer did not conduct further investigation of that evidence, and the officer' search did not reveal any evidence linking the plaintiff to the crime.  The Court found that it did not need to decide whether the weak evidence possessed by the officer was alone sufficient because, by failing to verify the exculpatory information (the tattoos) before arresting him, the officer lacked even arguable probable cause under the totality of the circumstances.

Cobena Duenas: Evidence was Sufficient to Support Knowledge of Counterfeit Currency

In United States v. Cobena Duenas, No. 17-10509 (June 11, 2018) (Marcus, Ed Carnes, Ebel), the Court affirmed the defendant's counterfeit currency convictions.

On appeal, the sole issue was whether there was sufficient evidence to establish that the defendant knew that the transaction involved counterfeit currency.  Viewing the evidence in the light most favorable to the government, the Court found the evidence sufficient.   The Court emphasized that the defendant had substantial contacts with the organizer of the transaction and thus had ample opportunity to discover the object of the transaction; the defendant knew that the transaction was unlawful in nature; the defendant was instrumental to the success of the transaction, since he was responsible for the exchange; and, under the "prudent smuggler" doctrine, a jury could infer that the organizer would not have entrusted the defendant to close a deal for over $600,000 in counterfeit currency without telling him the details.  The Court distinguished five of its earlier sufficiency cases upon which the defendant relied, emphasizing again that he played a critical role in the actual exchange (as opposed to being merely present), had substantial contact and conversations with the organizer of the transaction, and was vested with substantial trust by the organizer.  Because the defendant was not a mere bystander or peripheral player, the Court found that the evidence was sufficient.

McLean: Immigration Judges are "U.S. Judges" for purposes of Criminal Statute Prohibiting Interference with Federal Officials

In United States v. McLean, No. 17-10741 (June 8, 2018) (Jordan, Wilson, Higginbotham), the Court upheld the defendant's conviction for threatening to assault an immigration judge with the intent to interfere with that judge's performance of official duties.

The Court rejected the defendant's argument that an immigration judge was not a "United States judge" within the meaning of the statute of conviction.  Because the statute defined that term to include U.S. Magistrate Judges, that foreclosed the defendant's argument that it was limited to Article III judges.  And the Court rejected his additional argument that immigration judges did not qualify because they are appointed by the Attorney General and serve within the Executive branch, emphasizing that they function as "judicial officers."

Man: Upholding Arms Export Conspiracy Conviction/Sentence Over Multiple Challenges

In United States v. Man, No. 16-15635 (June 6, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed a conviction and sentence for conspiracy to export defense articles without approval, in violation of the Arms Control Export Act. 

First, the Court found the evidence was sufficient to support the conviction.  Sufficient evidence established that she entered into an unlawful agreement with a co-conspirator, and so it did not matter that a third-party rejected their export proposals.  Sufficient evidence established that the defendant and her co-conspirator willfully violated the Act because, although the government was required to prove that the defendants knew their actions violated a known legal duty rather prove a mere awareness that their actions were generally unlawful, the government met that heightened mens rea standard in this case.  And because sufficient evidence showed showed that she was predisposed to commit the offense, the Court rejected the defendant's argument that she was entrapped.

Second, the Court found no abuse of discretion in admitting evidence of conspirators' communications.  A transcript of a conversation among her co-conspirators was admissible under the hearsay exception for statements offered against the defendant made by her co-conspirator during and in furtherance of the conspiracy.  Emails sent to the defendant by an unidentified third party were also admissible under that same hearsay exception.  And communications between the defendant her co-conspirator were intrinsic to the charged conspiracy and thus were not barred by Rule 404(b).

Third, the Court found that the defendant's sentence was procedurally and substantively reasonable.  As to the former, the Court concluded that the district court did not clearly err by declining to award her a minor role reduction under USSG 3B1.2(a), because she played an essential role in the conspiracy as the sole intermediary, by helping plan and organize the crime, she understood the scope and structure of the activity, she stood to benefit from its success, and her reliance on her mental status was governed by a different guideline and unpersuasive in any event given her persistent, deliberate, and sophisticated communications with the co-conspirators.  Her 50-month sentence was not substantively unreasonable because, contrary to the defendant's argument, the district court did not rely on an impermissible factor--i.e., her Chinese national origin--because the court was entitled to reference her allegiance to China, which was relevant to the offense.

Finally, the Court found found no plain Brady error by the government's failure to provide the defendant with an email sent by one of her co-conspirators to another, which the defendant argued could have been used to impeach one of them at trial.  The Court, however, found that she knew about the email yet failed to exercise reasonable diligence in procuring it before trial.  And she failed to establish a reasonable probability that it would have changed the verdict because, if anything, it would have helped the government establish the conspiracy.

Ponton: Castro's Notice-and Warning Requirement Applies to Petitions Pre-Dating Castro

In Ponton v. Sec'y, Fla. Dep't of Corrs., No. 16-10683 (June 4, 2018) (Ed Carnes, Marcus, Ross), the Court held that the district court erroneously dismissed a state prisoner's 2254 habeas petition as an unauthorized "second or successive" petition.

Although the district court denied on the merits an earlier pro se petition back in 1988, the Court concluded that this denial did not trigger the statutory bar on unauthorized second or successive petitions.  That was because there was no indication that the district court notified the petitioner that it would re-characterize the pleading as a habeas petition and gave him an opportunity to withdraw it, as required by the Supreme Court's decision in Castro.  Although Castro was not decided until 2003, the Court concluded that Castro's notice-and-warning requirement applied to petitions filed before that decision was issued.  And, although the petitioner here filed a number of other federal pleadings, they were all dismissed without prejudice or as unauthorized second or successive petitions, and thus also did not trigger the bar on second or successive petitions.