Hunt: Alabama Second/Third-Degree Robbery and Michigan Carjacking Satisfied the Elements Clause

In United States v. Hunt, et al., No. 17-12365 (Oct. 30, 2019) (Jordan, Grant, Siler) (per curiam), the Court affirmed the defendants' sentences (after re-issuing what was previously an unpublished opinion).

First, the Court held that, based on a prior SOS precedent and Stokeling, Alabama second-degree and third-degree robbery satisfied the elements clause in the ACCA and Guidelines, because it required force to overcome the victim's resistance.

Second, the Court held that Michigan carjacking satisfied the elements clause.  Although the offense could be accomplished by putting another person in fear, the defendant identified no Michigan case which involved putting the victim in fear without the use, attempted use, or threatened use of force.

Finally, the Court found that a 60-month 922(g) sentence was not substantively unreasonable.  Although this sentence was an upward variance, the court justified it based on his criminal history and use of firearms during illegal activity.

Harris: Alabama Attempted First-Degree Assault Satisfied the ACCA's Elements Clause

In United States v. Harris, No. 18-11513 (Oct. 29, 2019) (Marcus, Julies Carnes, Paul Kelly (10th)), the Court upheld the defendant's ACCA enhancement based on Alabama attempted first-degree assault.

The Court held that the Alabama assault offense satisfied the elements clause.   The parties disputed which alternative element of Alabama assault was at issue.  The Court ruled out reckless assault as a matter of state law, as the Court found that a specific intent was required.  Of the remaining two possibilities, circuit precedent had already held that assault by causation of serious injury satisfied the elements clause, and the same was true of attempting to commit that offense.  As to assault by serious disfigurement, the Court similarly held this offense satisfied the elements clause because it required the causation of pain or injury.

Ross: Reasonable Expectation of Privacy in Motel Room Vanishes at Checkout Time

In United States v. Ross, No. 18-11679 (Oct. 29, 2019) (Newsom, Wilson, Proctor), the Court affirmed the denial of a motion to suppress evidence found in two searches of a motel room.

The first search was conducted 10 minutes after the defendant fled the motel on foot.  Although the government did not raise the argument below, the Court considered the government's argument that the defendant abandoned his room and therefore lacked Fourth Amendment standing to challenge the search.  The Court considered that argument because, under circuit precedent, abandonment also implicated Article III standing, which was not waivable.  However, the Court rejected the abandonment argument on the merits.  Although the defendant had standing to challenge the search and protective sweep of the room, the Court found that it was constitutional because the officers were seeking to execute an arrest warrant, and they had a reasonable belief that the room was the defendant's and that he was inside.

The second search was conducted with the consent of hotel management after the scheduled checkout time.  The Court concluded that the defendant lacked Fourth Amendment standing to challenge the search because the defendant lost any reasonable expectation of privacy in the room after checkout time.  The Court held that, in general, a short-term hotel guest loses a reasonable expectation of privacy in his room after checkout, provided the guest has not asked for and received a late checkout.

Judge Newsom concurred, criticizing the circuit precedent that obligated the Court to consider the government's abandonment argument raised for the first time on appeal, because it improperly treated abandonment as part of Article III standing.  He urged the full Court to reconsider that precedent, in part because the government's ability to raise that argument for the first time on appeal—"rope-a-dope, bait-and-switch, whipsaw, whatever you wanted to call it—just doesn't seem very fair."

Reed: Upholding Felon in Possession Conviction After Rehaif on Plain Error Review

In United States v. Reed, No. 17-12699 (Oct. 28, 2019) (William Pryor, Newsom, Julie Carnes), the Court—without oral argument—upheld the defendant's felon in possession conviction in the face of a Rehaif challenge on remand from the Supreme Court.

Reviewing for plain error, the Court acknowledged that there were plain errors at the defendant's trial in light of Rehaif.  Specifically, the indictment did not allege, the jury was not instructed, and the government was not required to prove that the defendant knew he was a felon at the time he possessed a firearm.  However, the Court found that these plain errors did not affect the defendant's substantial rights or the fairness/integrity of the proceeding, because the entire record established that he knew he was a felon.  The Court considered a felon stipulation at trial, trial testimony by the defendant that he knew he was not allowed to possess a firearm, and undisputed PSI facts to being incarcerated for long periods of time, including one stretch of 18 years.

Ochoa: Upholding Hobbs Act and Firearm Convictions/Sentences Over Various Challenges

In United States v. Ochoa, No. 16-17609 (Oct. 25, 2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's Hobbs Act and firearm convictions and sentences over various challenges.

First, the Court found no abuse of discretion in the limitation of cross examination of an officer about his unrelated personal misuse of police computers and efforts to conceal that misuse.  Although that decade-old misconduct was relevant to his character for truthfulness, it was only marginally relevant in this case, and the district court reasonably found that it was likely to confuse or mislead the jury.  Any error was harmless in any event in light of other evidence at trial.

Second, the Court upheld the denial of pre- and post-Miranda statements.  As to the former, the Court found that public safety exception to Miranda applied where the agent asked questions that he reasonably believed were necessary to secure a residence after the arrest of the defendant, who was a suspect in an armed robbery where someone was shot.  Although the officer did not have any specific reason to suspect that any particular person remained in the residence, his concern that other unknown individuals might have remained inside, despite the defendant's assertion to the contrary, was reasonable given the number of people who had already emerged from the house.  As to the post-Miranda statements, the Court found that the defendant's statements that he did not "agree with" the waiver of rights provision on the form did not constitute an unambiguous invocation of his right to counsel or to remain silent.  Any error was harmless in any event.

Third, the Court rejected the defendant's argument that the district court should have dismissed one count of the original indictment with prejudice due to a violation of the Speedy Trial Act.  After a mistrial, the retrial did not occur within 70 days and the indictment was therefore subject to dismissal.  However, the court did not abuse its discretion by dismissing it without (rather than with) prejudice because 922(g)(1) was a serious offense, neither party alerted the court to the violation, and the defense identified no prejudice.  The Court also rejected the defendant's argument that the district court should have dismissed the second indictment under the Speedy Trial Act on the ground that it was not filed within 30 days of his "arrest."  The Court rejected the argument that the defendant was "arrested" for purposes of the Act when he was transferred from one federal prison to FDC for purposes of awaiting re-trial on one dismissed count after having been convicted on other charges.

Fourth, the Court found that the evidence in the particular case was sufficient to support the convictions for Hobbs Act robbery, 924(c), and 922(g)(1).

Fifth, the Court upheld the defendant's career offender enhancement on the ground that Florida armed robbery and second-degree murder were crimes of violence under the elements clause.  As to the robbery, the Court included a footnote reiterating its earlier suggestion in Fritts that, after 1976, sudden snatching never constituted robbery under Florida law.

Lastly, the Court upheld an enhancement under 2K2.1 because a large capacity magazine was found in close proximity to a firearm.  Although the firearm was ultimately found outside the residence, and not in close proximity to the magazine in the bedroom drawer, the district court found that the firearm had previously been in the same room, and possibly even the same drawer, as the magazine.

Judge Rosenbaum dissented on two points.  First, although she agreed that there was no abuse of discretion in limiting the cross examination, she did not agree with the majority's suggestion that the officer's efforts to obstruct an investigation into himself had no bearing on the likelihood that he may have manipulated evidence in an investigation of another person.  Second, she believed that the public safety exception did not apply because the officers were searching a private home and specifically asked about a weapon that could only be operated by another person; and, although a close question, she did not believe the error was harmless.

Steiner: Rosemond Applies Retroactively But Sufficient Evidence Supported the Conviction

In Steiner v. United States, No. 17-15555 (Oct. 16, 2019) (Wilson, Newsom, Proctor) (per curiam), the Court upheld the denial of a 2255 motion containing three claims.

First, the Court upheld the denial of the movant's claim under the Supreme Court's decision in Rosemond, which required advance knowledge of the firearm for aiding and abetting a 924(c) offense.  The Court agreed with the parties that Rosemond announced a new rule that applied retroactively on collateral review.  However, viewing the trial evidence in the light most favorable to the government, the Court concluded that sufficient evidence supported the movant's advance knowledge and thus his 924(c) conviction.

Second, the Court upheld the denial of a Davis claim because circuit precedent established that aiding and abetting a carjacking satisfied the elements clause.

Third, the Court upheld the denial of a claim that counsel was ineffective for failing to object to the jury instructions as erroneous under Rosemond.  Here, there was no basis to object because the trial occurred years before Rosemond, and the court instructed the jury correctly under the law in effect at the time.

Finally, the Court declined to remand for a COA determination on the movant's claim that the jury instructions themselves were erroneous.  The Court found that the district court's order granting a COA on the three claims above amounted to an implicit denial of a COA on this fourth claim.

Judge Proctor concurred in order to clarify why the movant had advance knowledge of firearm in relation to the underlying carjacking offense.

Pearson: District Court Lacked Jurisdiction Over an Unauthorized Collateral Challenge at a Re-sentencing

In United States v. Pearson, No. 17-14619 (Oct. 15, 2019) (Tjoflat, Newsom, Antoon), the Court upheld a new sentence imposed after the the court vacated the defendant's ACCA enhancement in a successive 2255 motion based on Johnson.

At the re-sentencing hearing, the defendant collaterally challenged several of his 924(c) counts, alleging that the indictment  did not allege every element of the offense.  The Eleventh Circuit concluded that this challenge was procedurally improper because the defendant had not received authorization to raise that claim in a second or successive 2255 motion.  Therefore, the district court lacked jurisdiction to consider it.  The Court also upheld as substantively reasonable the new lower 447-month sentence, which was the result of a low-end guideline range sentence for some counts, followed by 384 months based on 924(c) counts.

Bishop: Mere Proximity Between Firearm and Drugs for Personal Possession Is Insufficient for 2K2.1(b)(6)(B) Enhancement

In United States v. Bishop, No. 17-15473 (Oct. 11, 2019) (Wilson, Newsom, Coogler), the Court affirmed the denial of a motion to suppress but vacated the defendant's sentence due to a guideline error.

First, the Court upheld a pat down because it found that the officers had reasonable suspicion to believe that the defendant was armed and dangerous.  The Court rejected the defendant's argument that his nervous, fidgety behavior, coupled with the officers' knowledge that he had previously been an inmate at the county jail, was insufficient.  In addition to those facts, a woman arrested earlier that day had informed one of the officers that she was going to the defendant's house, and the defendant was non-compliant with the officer's orders to exit his vehicle.  The Court noted that knowledge of an individual's criminal history alone was not sufficient and was of little weight.

Second, the Court found that the district court erroneously applied the four-level enhancement in USSG 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense--namely, possession of a hydromorphone pill.  Because possession of that one pill was a drug possession offense, rather than a drug trafficking offense, the court was required under the Guidelines to find that the firearm facilitated or had the potential to facilitate that drug possession offense.  Mere proximity between the firearm and pill was insufficient without such a finding.  The Court remanded to give the parties and the court an opportunity to address that issue.

Finally, and relying on circuit precedent, the Court upheld the enhancement under USSG 2K2.1(a)(3) on the ground that the defendant's prior Florida conviction for drug conspiracy under 893.13 was a predicate "controlled substance offense" under the Guidelines.

Van Buren: Vacating Honest-Services Fraud Conviction For Failing to Instruct Jury on Meaning of "Official Act"

In United States v. Van Buren, No. 18-12024 (Oct. 10, 2019) (Rosenbaum, Martin, Boggs), the Court affirmed a conviction under the Computer Fraud and Abuse Act, but vacated a conviction for honest-services fraud through bribery.

The Court vacated the honest-services fraud conviction because the court failed to properly instruct the jury that about the meaning of the "official act" sought through bribery.  Relying on the Supreme Court's decision in McDonnell, the Court explained that an "official act" must be similar in nature to a lawsuit, hearing, or administration determination that can be pending before a public official.  Here, the district court refused the defendant's request to instruct the jury about that meaning.  Instead, it instructed the jury only that an official act involves a question or matter involving the formal exercise of government power.  The error was not harmless because, absent that proposed instruction, the defendant had no way to highlight the government's failure to identify an official act.  But because the government adduced sufficient evidence to convict had the jury been properly instructed, the Court remanded for a new trial as opposed to reversing the conviction outright.

As to the computer fraud conviction, the Court first found no error in declining to instruct the jury on a lesser-included misdemeanor offense on the ground that it was not committed for private financial gain.  The Court found no evidence that would have allowed the jury to convict him on the misdemeanor but not the felony, as there was no evidence that he engaged in the fraud for any reason other than personal financial gain.  The Court also found that the evidence was sufficient to support the conviction even though he inappropriately accessed a law-enforcement database that he was authorized to use; while that argument might prevail in other circuits, it was foreclosed by Eleventh Circuit precedent.

Finally, the Court rejected the defendant's argument that the court erred by declining to give a good-faith instruction, finding that this decision was within the court's discretion due to a lack of supporting evidence.  The Court also rejected the defendant's argument that he was denied his Sixth Amendment right to confront adverse witnesses because the out-of-court witness statement was admitted only to provide context for the defendant's statement, not for their truth.

Thomason: No Re-sentencing Hearing Require After Johnson Relief on Collateral Review

In United States v. Thomason, No. 17-11668 (Oct. 10, 2019) (William Pryor, Jill Pryor, Robreno), the Court upheld the denial of a re-sentencing hearing after obtaining Johnson relief on collateral review.

The Court found that no re-sentencing hearing was required because the erroneous ACCA enhancement did not affect the defendant's guideline range, and the judge re-sentenced the defendant to a lower guideline-range sentence after obtaining written submissions about the 3553(a) factors.  It did not matter that the original guideline range would have been affected by the Johnson error had it been correctly calculated at the original sentencing, since that error was not cognizable on collateral review.  And even though the judge, at re-sentencing, chose to run all of the unenhanced 922(g) counts consecutively in order to reach the high end of the guideline range, that did not constitute enough discretion to warrant a re-sentencing hearing with the defendant present.

Sanchez: New York Robbery and Murder Satisfy the ACCA's Elements Clause

In United States v. Sanchez, No. 18-10711 (Oct. 2, 2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's ACCA sentence based on New York first-degree robbery and New  York second-degree murder.

As an initial matter, the Court synthesized recent decisions about the elements clause and explained that "physical force" means: 1) an act that is exerted by and through concrete bodies; and 2) that is directly or indirectly "capable" of causing pain or injury, in that it has the potential to do so.  Applying that standard, and agreeing with the Second and Fourth Circuits, the Court held that New York robbery satisfied the elements clause because it requires forcible stealing, which requires the defendant to use or threaten the immediate use of physical force.  The New York definition of forcible stealing largely tracked the elements clause and adopted the common law understanding of robbery, and it did not include robberies that could be committed by only a slight touching (like sudden snatching).  The Court found that Stokeling foreclosed the defendant's argument that robbery by blocking the victim did not satisfy the elements clause.

Second, the Court held that New York second-degree murder satisfied the elements clause because it required the intent to cause death to another person.   Relying on Castleman and Vail-Bailon, the Court reasoned that the intentional causation of bodily harm (or death) necessarily requires force "capable" of causing such harm.  The Court rejected the defendant's argument that murder by poison did not satisfy the elements clause, as that argument was foreclosed by the Court's precedents.  And the Court rejected the defendant's argument that murder did not qualify because it could be committed by omission.  As a matter of state law, the Court found that failing to act where there is a duty to act constitutes an act or conduct itself, not an omission.  And intentionally withholding medical treatment or food would constitute indirect force satisfying the elements clause for the same reason as poisoning.

Finally, the Court rejected, on plain error, the statutory argument that the ACCA applies only when the defendant is convicted of 922(g) and another offense.

Sheffield: Vacating Restitution Award in Tax Fraud Case Based on Spreadsheet Containing Duplicate Entries

In United States v. Sheffield, No. 17-13682 (Oct. 1, 2019) (Jordan, Tjoflat, Anderson), the Court vacated the restitution order.

In this fraudulent tax return case, the restitution amount should have been easy to calculate because each return triggered a refund of $1,000.  In this case, where the loss amount is definite and easy to calculate, the government could not rely on a reasonable estimate.  But rather than simply multiply the returns, the government introduced a spreadsheet, which contained duplicative entries that were not removed.  Although the duplicates were likely only a small portion of the overall award, the Court nonetheless vacated the award because the defendant had a right not to be sentenced on the basis of inaccurate or unreliable information.

Rothstein: Government Retained Discretion to Withdraw a Placeholder Rule 35 Motion

In United States v. Rothstein, No. 18-11796 (Sept. 30, 2019) (Tjoflat, William Pryor, Grant), the Court affirmed the grant of a government motion to withdraw a Rule 35 motion.

The Court rejected the defendant's argument that, although the government had discretion not to file a Rule 35 motion at all, the government lacked discretion to withdraw the placeholder motion that it filed for purposes of preserving the court's jurisdiction in the event it elected to proceed.  Although the cooperation agreement itself said nothing about withdrawing a Rule 35 motion, the Court reasoned that accepting the defendant's argument would allow a technicality to intrude on prosecutorial discretion.  In addition, the government specifically advised the defendant in the placeholder motion that it retained the right to withdraw the motion if the defendant breached the cooperation agreement, and that the cooperation was not yet complete.  Finally, the Court found no abuse of discretion in denying the defendant an evidentiary hearing to show that he complied with the cooperation agreement, because the only issue was a legal one about whether the government retained the discretion to withdraw the motion.

Boston: Principal to Florida Armed Robbery Satisfies the ACCA's Elements Clause

In Boston v. United States, No. 17-13870 (Sept. 30, 2019) (William Pryor, Jill Pryor, Robreno), the Court upheld the denial of the movant's Johnson/ACCA claim.

The Court held that the movant's Florida principal-to-robbery-with-a-firearm convictions satisfied the ACCA's elements clause.  Under Florida law, an aidor and abettor is punished the same as a principal offender, and so he necessarily commits all of the elements of principal Florida armed robbery.  The Court relied on its decision in In re Colon, which applied the same logic to aiding and abetting a Hobbs Act robbery.

Judge Jill Pryor concurred in the judgment, expressing doubts that In re Colon was correctly decided.  She emphasized that, under Florida law, an aidor and abettor does not have to be physically or constructively present at the commission of the offense.  She criticized In re Colon for taking the legal fiction—that one who aids and abets a robbery by driving the getaway car is deemed to have committed robbery itself—and using that to say that the getaway driver committed a crime involving the element of force.  She believed that this result was contrary to the text and puprose of the ACCA.

Annamalai: Reversing Bankruptcy Fraud Convictions, Fugitive Harboring Convictions, and Loss Amount

In United States v. Annamalai, No. 15-11854 (Sept. 24, 2019) (Jordan, Wilson, Moore (S.D. Ga.)), the Court affirmed in part and reversed in part the defendant's fraud convictions and sentences.

First, the Court rejected the defendant's argument that the government improperly joined 34 offenses and the court erred by denying his motion to sever some of the charges.  The Court reasoned that the charges arose out of the same general fraudulent scheme, and the defendant could not show prejudice just because the jury convicted him of several counts despite insufficient evidence.

Second, the Court rejected the defendant's argument that the prosecution, conviction, and sentencing violated his First Amendment right to freedom of religion.  The government's case was not an impermissible attack on the defendant's Hindu religion but rather involved a scheme where the defendant abused his position as a Hindu priest and engaged in fraud.

Third, the Court reversed the defendant's bankruptcy fraud convictions because the funds at issue were acquired after the Hindu temple filed for bankruptcy and after the trustee shut it down.  Similarly, a post bankruptcy petition check did not constitute property of the bankruptcy estate and thus was not prosecutable.  The evidence was therefore insufficient.  And because the conspiracy and money laundering counts were based on the substantive bankruptcy fraud counts, the Court reversed those too.

Fourth, the Court reversed the defendant's conviction for conspiracy to harbor a fugitive.  The Court found insufficient evidence of an agreement to commit an act to help harbor or conceal a person for whom a warrant was issued.  The defendant told his wife to tell the fugitive to use cash, but that mere provision of advice was insufficient without providing some sort of material or physical assistance.  The wife then gave false statements to agents about the fugitive and his whereabouts, but that too was insufficient to constitute harboring or concealing.  Lastly, the fact that the fugitive purchased a plane ticket out of the US was insufficient to show that the defendant or his wife harbored or concealed him.

Fifth, the Court found insufficient evidence to support the loss amount at sentencing.  That finding was based on the speculative assumption that every one of 467 credit card disputes filed against the Hindu temple involved a fraudulent charge, even though only 85 of them included records of fraud, from which a government agent extrapolated.  While extrapolation may be permissible in some scenarios, the methodology here assumed absolute fraud in every instance and was based on too much speculation: the government assumed that all 467 disputes involved fraud even without any indication that it did; the government did not know whether any of the disputes were resolved in favor of the Hindu temple; and the defense presented evidence that some of the disputes had been resolved.

Kirby: 1,440 CP Sentence "Equal to" a Life Sentence under the Guidelines and Was Substantively Reasonable

In United States v. Kirby, No. 18-11253 (Sept. 17, 2019) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's 1,440-month child pornography sentence.

The defendant's convictions resulted in an offense level of 43, which produced a life sentence under the Guidelines.  However, the statutes of conviction were capped below life.  Accordingly, under USSG 5G1.2(d), the court was required to run the counts consecutively to the extent they produced a combined sentence "equal to" the Guidelines recommendation of life.  The question here was what numerical sentence is "equal to" life imprisonment.  The district court believed that a life sentence was one of indefinite duration, and it therefore ran the statutory maximum sentences consecutively, which produced a sentence of 1,440 months.  That was the closest numerical sentence to an indefinite sentence that the law allowed.  The Court rejected the defendant's argument that a life sentence was instead 470 months because the Commission had defined it that way for statistical purposes.

The Court also concluded that the sentence was substantively reasonable.  The district court thoroughly discussed the defendant's heinous conduct and creation of child pornography, his breach of public trust as a police officer, and his failure to accept responsibility for his actions. 

Gillis: Federal Kidnapping Does not Satisfy the Elements Clause in the Federal Solicitation Statute

In United States v. Gillis, No. 16-16482 (Sept. 13, 2019) (per curiam) (Jill Pryor, Anderson, Hull), the Court affirmed the defendant's child enticement conviction but reversed his conviction for soliciting another to commit federal kidnapping.

On the enticement count, the Court found the evidence sufficient.  It rejected his arguments that a Craigslist ad did not show his intent to induce a minor to engage in sexual activity; that an undercover agent introduced that idea into the conversation; the defendant abandoned any intent by canceling the first planned meeting with the minor; and, in setting up the second meeting, he sought only to meet with the fictional father.

The Court also rejected his argument that, even if technically inadmissible under Rule 702, the court deprived him of his Fifth and Sixth Amendment right to present a complete defense by limiting the testimony of his expert and prohibiting another expert from testifying at all.  Although the defendant argued that the testimony was necessary to contextualize his online communications and negate the subjective intent element, that was not a compelling reason to make an exception to the expert witness rules of evidence.  The mere fact that their testimony would have been helpful was not enough.

However, in a lengthy analysis, the Court reversed a solicitation conviction under 18 U.S.C. 373 that was predicated on the federal kidnapping offense in 18 U.S.C. 1201(a), because it concluded that federal kidnapping did not satisfy the elements clause in 373 (which includes the same key language as the elements clause in 924(c)(3)(A) but also additional language not in 924(c)(3)(A)).  The Court concluded that, under its precedent in McGuire which was reinforced by Davis, the categorical approach governed 373; and, under that approach, federal kidnapping did not qualify because it is indivisible and, based on non-far-fetched hypotheticals, may be committed by means of inveiglement and/or decoy and then maintained by pyschological force, which was insufficient.

Judge Hull dissented in part, opining that a conduct-based approach applied based primarily on the text of 373's elements clause, the defendant's real-world conduct involved violent force, and kidnapping by confinement qualified even under the categorical approach, in part because there were no successful prosecutions that did not involve physical force capable of causing pain or injury.

Waters: Affirming Wire Fraud Conviction Over Takhalov-Based Challenges

In United States v. Waters, No. 18-11333 (Sept. 10, 2019) (Ed Carnes, Julie Carnes, Clevenger), the Court affirmed the defendant's wire fraud conviction and sentence.

First, the Court found no abuse of discretion in declining to give the Takhalov-based wire fraud instruction proposed by the defense.  The Court found that the proposed instruction, which sought to distinguish between defrauding and deceiving, was an incomplete statement of the law and would have confused the jury.  The Court also found that the proposed instruction did not seriously impair his ability to present his theories of defense.

Second, and applying a deferential standard of review due to the defendant's failure to renew his motion for judgment of acquittal at the close of the evidence, the Court found the evidence sufficient that the defendant intended to harm the victim of the fraud.  The Court rejected the defendant's argument that, under Takhalov, lies about his creditworthiness to a lender did not affect the benefit of the bargain between the parties, as there was ample evidence that these lies sought to cover up an issue that threatened to kill the deal.

Third, the Court rejected the defendant's argument that the district court erred by not making an on-the-record waiver inquiry about his decision not to testify at trial.  Although there is no per se rule requiring that inquiry, the defendant argued this case was exceptional because he was the only person in a position to refute the prosecution's case.  The Court rejected that as a ground for relief because it did not establish his decision to remain silent was involuntarily made.

Lastly, the Court found no plain error with regard to an erroneous factual comment made by the judge after sentence had been imposed.  The judge inaccurately stated that the defendant had gotten a break because the loan had been repaid, when in fact there was never a loan to repay.  But this "slip up" was a "stray comment" at the end of sentencing, not a relevant factual finding.  And the Court found no prejudice because the judge otherwise had an open mind and explained why he thought the defendant did deserve leniency.

Feldman: Upholding Opoid Distribution/Money Laundering Convictions Over Several Challenges but Vacating Sentence due to Alleyne Error

In United States v. Feldman, No. 16-12978 (Aug. 30, 2019) (Julie Carnes, Jill Pryor, Antoon), the Court affirmed the defendants' convictions for distributing schedule II (oxycodone and methadone) and IV (alprazolam and diazepam) substances not for a legitimate medial purpose and money laundering, but it vacated one defendant's sentence under Alleyne.

First, the Court found no abuse of discretion in the denial of a motion to sever.  Although two of the counts pertained only to one of the two defendants, the other defendant had not met her burden to show believe that the jury could not make an individualized determination, and any prejudice was avoided by a limiting instruction.

Second, the Court found no plain error in connection with an isolated statement by the government expert extrapolating from his review of a sample of the defendant's medical files.  The Court found no prejudice by that one stray comment, as it came during his three days of testimony where he otherwise focused entirely on the files he did review. 

Third, the Court found that the defendants had impliedly consented to a mistrial in the first prosecution, and therefore there was no double jeopardy violation in allowing the second trial to proceed.

Fourth, the Court found no reversible prosecutorial misconduct on three points.  First, the prosecutor did not improperly comment on facts not in evidence.  Second, even if the prosecutor improperly inserted an uncharged theory of conviction during closing, there was no prejudice because there was a curative instruction and there was sufficient evidence of guilt.  And, third, the prosecutor's comment that a victim who died had a "butt-load" of drugs in his body was not unfairly prejudicial because, although graphic, the statement was consistent with the evidence.

Fifth, the Court found no abuse of discretion in declining to instruct the jury that it is ethical for a physician to relieve a patient's pain regardless of the victim's history of addiction.  The Court found that this was not a correct statement of the law, and it was a partisan argumentative instruction about facts that the defendant hope the jury would find.

Sixth, the Court found sufficient evidence to support the convictions.  As for the distribution charges, the Court found the evidence sufficient to show that the drugs ingested were prescribed by the defendant and that they were the but-for cause of the victims' deaths.  The Court explained that, under the Supreme Court's decision in Burrage, the schedule II drugs needed to be only one but-for cause of death.  The Court rejected the defendant's argument that it needed to be the sole but-for cause, and it was therefore irrelevant if the schedule IV drugs also played a necessary role in the deaths.

Finally, the Court vacated one of the defendant's 20-year mandatory minimum sentence under 841(b)(1)(C), because the jury's special verdict did not sufficiently reflect that it had found that the schedule II drugs were the but-for cause of the victims' deaths.  Rather, the verdict was consistent with a finding that the schedule II and schedule IV drugs caused their deaths together in the aggregate.  Absent that jury finding, the court erred in imposing the mandatory minimum under Alleyne and Burrage.

Baptiste: Affirming Tax Fraud Conviction and Sentence Over Various Challenges but Remanding for Allocution

In United States v. Baptiste, No. 16-17175 (Newsom, William Pryor, Branch), the Court affirmed the defendant's tax fraud conviction and sentence, but remanded for the defendant to allocute at sentencing.

First, the Court found that the district court did not abuse its discretion under Rule 404(b) by refusing to allow the defendant to put on evidence that another individual had duped others into participating similar schemes.  The defendant argued that this evidence would have shown only that individual's capacity to implement the scheme rather than his character or propensity.  The Court concluded that, because the evidence could have reasonably been viewed either as permissible capacity evidence or as impermissible propensity evidence, there was no abuse of discretion.

Second, the Court rejected the defendant's argument that the prosecutor failed to correct false witness testimony that he was a citizen when in fact he was granted citizenship in exchange for testifying against the defendant.  In addition, while a government witness falsely testified about a date, the government was not required to correct it because it was due to mistake or confusion rather than a willful intent to deceive.  And the Court rejected the defendant's argument that the government failed to disclose a cooperation agreement of a testifying witness because it was speculative and the defendant could not show the testimony was material.  The Court also rejected the defendant's argument that the prosecutor mischaracterized evidence at trial during his closing argument.

Third, the defendant argued that the testimony of the brother to a defense witness—that the defendant had told the witness he would give her a car in exchange for favorable testimony—was incorrectly admitted as a statement against interest.  The Court found it unnecessary to decide that question because it found the testimony harmless in light of overwhelming evidence of guilt.

Fourth, the Court concluded that, even if inadmissible hearsay, the same testimony nonetheless bore "sufficient indicia of reliability" for purposes of an obstruction of justice enhancement at sentencing.  And the district court was not required to make express findings on the record that the testimony was reliable because the record as a whole showed that it was.  The Court also upheld sentencing enhancements based on loss amount and the number and vulnerability of the victims.

Finally, the parties agreed that the district court plainly erred by failing to address the defendant personally and give him an opportunity to allocute, even though the court asked "does the defendant wish to address me," and the attorney answered on the defendant's behalf.