Davila-Mendoza: MDLEA Prosecution for Drug Trafficking in Foreign Waters Exceeded Congress' Authority

 In United States v. Davila-Mendoza et al., No. 17-12038 (Aug. 26, 2020) (Branch, Jill Pryor, Boggs), the Court vacated the defendants’ MDLEA convictions on the ground that the statute, as applied, exceeded Congress’ constitutional authority.

 The drug-trafficking activities in this case occurred in the territorial waters of a consenting foreign country, not the high seas.  The Court first concluded that, as applied, the MDLEA exceeded Congress’ authority under the Foreign Commerce Clause.  The Court assumed, without deciding, that this clause had the same scope as the interstate commerce clause.  Applying that framework, the defendants’ conduct lacked a “substantial effect” on commerce between the United States and foreign nations.  There was no allegation or evidence that drug trafficking in waters of a foreign nation by foreign nationals on a foreign boat of drugs not bound for the US substantially affected US commerce with foreign nations.  The Court rejected the government’s argument that wholly foreign drug trafficking impacted the international drug trade, which in turn could impact US commerce with foreign nations.  The Court also rejected the government’s argument that this prosecution was an exercise of Congress’ authority under the Necessary and Proper Clause to enforce a bilateral treaty with Jamaica, because the MDLEA was enacted before the treaty and thus could not have effectuated it.

Mastin: Extending Rule of Michigan v. Summers from Search Warrants to Arrest Warrants

 In United States v. Mastin, No. 18-14241 (Aug. 26, 2020) (Grant, William Pryor, Antoon), the Court affirmed the defendant’s felon in possession conviction.

 The Court upheld the denial of a motion to suppress the gun.  The gun fell out of the defendant’s waistband after the police ordered him to get on the ground and crawl out of a hotel room where the officers were executing arrest warrants on others.  First, the Court explained that, based on the totality of the circumstances, the officers could enter the hotel room to carry out the arrest warrants because they had a reasonable belief that it was the suspects’ dwelling and that one of them was there.  Second, the Court rejected the defendant’s argument that it was unreasonable to require him to crawl out of the room, because officers may briefly detain those on the premises not only while they execute a search warrant but also while they execute an arrest warrant.  In so holding, the Court extended the Supreme Court’s decision in Michigan v. Summers in a manner that the Ninth Circuit had not.

The Court also rejected the defendant’s argument that he was deprived of a fair trial because the court limited his right to cross examine a police witness and develop his defense theory.  The Court found no abuse of discretion because the questions he wanted to ask would not have been probative of bias and would have confused the jury.

Jimenez: Upholding Visa Fraud and Money Laundering Convictions

 In United States v. Jimenez, No. 18-10569 (Aug. 25, 2020) (Hull, Wilson, Lagoa), the Court affirmed the defendant’s immigration-fraud conspiracy and money laundering convictions.

 The Court held that sufficient evidence supported the immigration-fraud conspiracy conviction because the  material misrepresentations he conspired to make were in documents “required by immigration laws and regulations.”  The Court rejected his argument that the document in question, an I-140 petition, was not such a document.  And the Court held that there was sufficient evidence that the defendant conspired to make false statements in the I-140 petitions in order to obtain visas for Chinese nationals.  Because the evidence was sufficient to support the immigration-fraud conspiracy, the jury could have also convicted him of money laundering because the visa fraud conspiracy was a “specified lawful activity” for money-laundering purposes.

Estrada: Upholding Convictions for Smuggling Cuban Baseball Players

 In United States v. Estrada, No. 17-15405 (Aug. 13, 2020) (Jill Pryor, Rosenbaum, Branch), the Court affirmed the defendants' convictions for smuggling baseball players out of Cuba into the United States.

 First, the Court rejected as foreclosed by prior precedent the defendants' arguments that the Cuban Adjustment Act and Wet-Foot/Dry-Foot policy established “prior official authorization” for the players to enter the US.  The Court also rejected the argument that 1324(a)(2)’s “prior official authorization” component was unconstitutionally vague.

 Second, the Court found that the evidence was sufficient to support the defendants' convictions for both aiding and abetting alien smuggling and conspiracy to commit alien smuggling.

Third, the Court found no abuse of discretion in five evidentiary rulings.  Two witnesses were permitted to give lay (as opposed to expert) testimony about government unblocking licenses and visas.  The court did not improperly limit the defendants’ ability to cross examine those two government witnesses about whether they acted in good faith to comply with government regulations.  The court properly admitted evidence of uncharged violence and extortion because it was intrinsic evidence necessary to complete the story of the crimes.  The court properly admitted hearsay under the co-conspirator exception.  Finally, the court did not err by refusing to strike a government witness’ testimony because the court allowed the defendant to  put on evidence showing that the witness had lied, and his credibility was a matter for the jury.

Carter: Two Prior Drug Offenses Were Committed Separately Because Only One Received Location-Based Enhancement

 In United States v. Carter, No. 18-14806 (Aug. 12, 2020) (Grant, William Pryor, Antoon), the Court upheld the defendant’s ACCA sentence.

 The issue was whether two prior Alabama drug offenses were committed on separate occasions.  Based on a review of the indictment and plea admissions, the Court held that they were more likely than not committed separately, because only one of the two offenses received a location-based enhancement under state law.

McKathan: Probationer was "Compelled" For Fifth Amendment Purposes to Truthfully Answer Probation Officer's Questions

 In McKathan v. United States, No. 17-13358 (Aug. 12, 2020) (Rosenbaum, Branch, Dubina), the Court vacated the denial of a 2255 motion asserting ineffective assistance of counsel for failing to file a motion to suppress statements that he made to a probation officer while he was on supervised release.

 The question was whether the movant would have established a violation of his privilege against self-incrimination.  Because he never invoked the privilege, he had to show that he was compelled to make the incriminating statements.  Resolving that question affirmatively, the Court concluded that, in light of binding precedent, he was faced with a “classic penalty situation” because he could reasonably believe that his supervised release would be revoked if he did not truthfully answer the probation officer’s questions.  The Court remanded for the district court to determine if the statements would been admissible based on the inevitable discovery doctrine.

 Judge Branch dissented, opining that it was unreasonable for the movant to believe he faced a “classic penalty situation.”

Green: RICO Conspiracy Is Not a Crime of Violence Under 924(c)

In United States v. Green, No. 17-10346 (Aug. 11, 2020) (Wilson, Grant, Hinkle), the Court affirmed in part and vacated in part. 

First, the Court held that RICO conspiracy is not a “crime of violence” under the elements clause in 924(c)(3)(A).  The Court reasoned that, like Hobbs Act conspiracy, RICO conspiracy was premised on a mere agreement to participate in unlawful activity and does not require an overt act. 

Second, the Court held that one of the defendant’s 120-year sentence was procedurally unreasonable because the district court failed to adequately clarify the applicable guideline range, which was determined to be 210-262 months at the initial sentencing hearing.  The district court also clearly erred by finding that the defendant participated in a murder, which stipulated cell phone records made physically impossible.

 Third, the Court upheld the denial of a motion to suppress cell-site data acquired pursuant to state court orders consistent with section 2703(d) of the Stored Communications Act.  For one defendant, the Court found that he abandoned any interest in his cell phone by failing to recover the phone during the course of four years in the government’s possession.  For other defendants, the Court found that the good-faith exception to the exclusionary rule applied: with respect to cell-site data because the government reasonably relied on the state court orders, which were issued five years before Carpenter; and with respect to real-time tracking data, the legality of which remains open today.

 Fourth, the Court found no abuse of discretion in denying a peremptory strike because it violated the voir dire procedure, under which he agreed to jointly exercise peremptory strikes with the other defendants.

 Fifth, the Court found that the district court erroneously admitted testimony concerning street rumors that one of the defendants committed murder.  That testimony was not admissible under 801(d)(2)€ because the witness did not hear it from co-conspirators, only through street rumors.  However, the Court found the error to be harmless given other substantial evidence involving that defendant’s involvement in the murder.

 Based on a review of the record, the Court rejected various evidentiary claims, found the evidence sufficient, and found no error with regard to inconsistent verdicts.

Walked: Reversing Denial of Government Motion for Forfeiture in Money Laundering Case

 In United States v. Walked, No. 18-11951 (Aug. 11, 2020) (Martin, Grant, Lagoa), the Court reversed the denial of the government’s forfeiture motion.

 The Court held that, if a defendant is convicted of a money laundering scheme that caused no financial harm to an innocently involved bank, a forfeiture order is still mandatory.  Applying the mandatory forfeiture statute in 18 U.S.C. 982(a)(1), the Court concluded that there was property “involved in” the scheme.  The Court rejected the defendant’s arguments that laundered money is not “property” under the statute, and that laundered money could not be used to calculate his forfeiture obligation because the money was returned to the bank as part of the scheme.  Finally, the Court held that the district court erred by holding that the Eighth Amendment imposed a $10,000 per transaction ceiling, and the Court remanded for the district court to consider whether a $10 million forfeiture award violated the Eighth Amendment.

 Judge Lagoa concurred in part and dissented in part.  She disagreed with a portion of the majority opinion suggesting that the government was entitled to substitute asset forfeiture under 21 U.S.C. 853(p), as the government had not sought forfeiture under that statute.  And because the district court had not yet made factual findings on the Eighth Amendment issue, she would not opine on whether a $10,000 per transaction maximum was excessive.

Henry: Downward Adjustment Under USSG 5G1.3(b) is Mandatory Notwithstanding Booker

 In United States v. Henry, No. 18-15251 (Aug. 7, 2020) (William Pryor, Grant, Antoon), the Court vacated the district court’s refusal to adjust the defendant’s sentence under USSG 5G1.3(b) based on time served on a related state case.

Although there was no dispute that the criteria for an adjustment under 5G1.3 were satisfied, the district court refused to apply it because it determined that the Guidelines were advisory.  Disagreeing with other circuits, the Eleventh Circuit reached the contrary conclusion, holding that an adjustment under 5G1.3 is mandatory, notwithstanding Booker.  The Court reasoned that Booker rendered advisory only the Guideline provisions that relate to the guideline range.  But 5G1.3 relates to the imposition of the sentence and comes in to play only after the guideline range has been determined.  And because its application can only reduce (not increase) the defendant’s sentence, treating it as mandatory does not violate the Sixth Amendment.

Knights: Encounter Between Officers and Defendant Was Consensual, Not a Seizure

In United States v. Knights, No. 19-10083 (Aug.  3, 2020) (William Pryor, Rosenbaum, Michael Moore), the Court upheld the denial of a motion to suppress.

Officers parked a patrol car close to the defendant’s car and then approached him.  The Court held that this was a consensual encounter that did not rise to the level of a seizure because a reasonable person would have felt free to leave.  In fact, the defendant’s companion ignored the officers and left, and the defendant could have also driven away.  The officers did not display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Nor did they activate their lights or siren.  The defendant was free to abandon his car in a high-crime area because two officers were there, and he could have returned when they left, and the officers’ use of a flashlight to did not communicate a show of authority.

Competa: No Additional Competency Hearings Required Before Trial and Sentencing

In United States v. Cometa, No. 19-11282 (Aug. 3, 2020) (William Pryor, Rosenbaum, Luck), the Court upheld the denial of additional competency hearings before trial and sentencing.

The Court found no abuse of discretion because an expert opined that he was competent before trial.  And the defendant’s continued understanding of the proceedings, ability to consult with counsel, and ability to assist with his defense established that there was no bona fide doubt about his competency after the district court initially found him competent.

Melgen: Upholding Medicare Fraud Convictions Over Multiple Challenges

In United States v. Melgen, No. 18-10991 (July 31, 2020) (Grant, Martin, Lagoa), the Court affirmed the defendant’s Medicare fraud convictions and sentence.

First, the Court rejected the defendant’s argument that the district court erred by giving the pattern instruction on materiality.  The Court rejected the defendant’s reliance on a Supreme Court case addressing the False Claims Act.

Second, the Court found no error in the introduction of summary charts comparing the defendant’s billing to peer physicians.  The charts were admissible under Rule 1006.  The Confrontation Clause did not permit the defendant to cross examine decision-makers about the criteria used to make the charts (namely, the prosecutors).  And no expert witness was required to admit the charts.

Third, the Court rejected five errors about his trial.  First, the district court did not err in admitting evidence of multi-dosing, since it was probative of his profit motive.  Second, no mistrial was required due  to a witness’ false testimony because the court immediately issued a thorough curative instruction.  Third, the court’s refusal to instruct the jury that a sample of patient files was not statistically random did not require a mistrial, because the court instructed the jury to disregard any statements concerning statistical confidence.  Fourth, the district court did not commit plain error by giving the jury unredacted copies of the indictment because the court told the jury that it was not evidence of guilt and there was no potential prejudice.  Finally, no mistrial was required by contact between the government and defense witnesses after the court conducted a hearing and determined that the contact had not been prejudicial or altered any testimony.

Fourth, the Court concluded that sufficient evidence supported the convictions, as the defendant’s argument went to the weight of the evidence.

Fifth, the Court upheld the denial of a motion for new trial based on a Brady violation, which was based on medical testimony by a government witness at sentencing.  This testimony was neither new nor likely to change the outcome of the trial.  And it was merely impeachment evidence, and so not the basis of a new trial under Rule 33. 

Finally, as to the sentence, the Court found no clear error in the loss amount, as the government presented enough evidence that the sample patient group was representative of the defendant’s patient population.  And his below-guideline sentence was not substantively unreasonable.

Smith: Upholding Hobbs Act Robbery Conviction Against Individual Victims and Holding that Section 403 of the First Step Act Does Not Apply Retroactively

In United States v. Smith, No. 18-13969 (July 30, 2020) (Ed Carnes, Luck, Marcus), the Court affirmed the defendant’s Hobbs Act robbery and 924(c) convictions.

First, the Court held that the district court’s finding that a photographic lineup was not unduly suggestive was not clearly erroneous.  And the Court held that admission of the defendant’s rap video at trial did not violate the First Amendment or Rule 403, as it had significant probative value for contested issues of identity and display of a firearm.

Second, as to one Hobbs Act robbery conviction, the Court held that the defendant’s proposed jury instruction about how to satisfy interstate commerce element in the context of an individual (as opposed to a business) was incorrect, because it changed illustrative examples to exclusive examples.  The Court also held that the evidence was sufficient to show that his robbery affected interstate commerce because he stole a thumb drive containing software that the victim used for her business, and that business was engaged in interstate commerce.

Third, and joining other circuits, the Court held that Section 403 of the First Step Act, limiting the stacking of 924(c) convictions, applies only to cases where a sentence has not yet been “imposed.”  And a sentence is “imposed” when the district court enters a final judgment, not when the sentence becomes final on appeal.

Finally, the Court rejected the defendant’s challenges to his 92-year sentence.  It found no Eighth Amendment violation because he robbed four people at gunpoint and caused severe injury to one, and the sentence was below the statutory maximum.  The sentence was also not substantively unreasonable because all but 121 months were mandated by statute, and the court did not abuse its discretion in considering the 3553(a) factors.

Carmichael: Upholding Denial of 2255 Motion Based on IAC

In Carmichael v. United States, No. 17-13822 (July 22, 2020) (Proctor (ND Ala), Wilson, Newsom), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.

The government conceded, and the Court agreed, that counsel performed deficiently by failing to communicate Carmichael’s total 40-year sentence, seek a negotiated plea as requested, or relay 10-year and 20-year plea offers.  However, the Court concluded that Carmichael could not show prejudice because he could not show that he would have accepted the plea offer had it been communicated to him.  The offers were conditioned on his substantial assistance and “super-cooperation,” and Carmichael did not show that he was willing or able to do so before he went to trial and was convicted, or that the government would have deemed his cooperation satisfactory.

Hall: Upholding 40-Year Child Pornography Sentence

In United States v. Hall, No. 18-14145 (July 21, 2020) (Ed Carnes, Rosenbaum, Vinson (ND Fla)), the Court affirmed the defendant’s 40-year sentence for receiving child pornography, an upward variance from a guideline range of 15 years.

First, the Court rejected the defendant’s argument that the sentencing court improperly relied on unreliable hearsay evidence from an earlier sexual abuse case.  The Court concluded that the defendant did “not even come close” to meeting his burden to prove that the evidence was unreliable.

Second, the defendant argued that the district court failed to give notice required by Rule 32(h) before imposing an upward departure.  The Court rejected that argument because the district court expressly imposed an upward variance (not a departure), for which no notice is required.  And the reasons for the sentence above the guideline range were based on the 3553(a) factors, not a departure provision in the Guidelines.  It did not matter that those reasons might have also fit under a departure provision.

Third, the Court concluded that the sentence was not substantively unreasonable.  The Court emphasized that the defendant had engaged in repeated acts of sexual abuse of children over two decades, even after he went to prison for it and was released; he blamed the victims rather than showed remorse; and he inflicted substantial and long-lasting harm to the victims.

Deason: Upholding Enticement and Obscene Transfer Convictions

In United States v. Deason, No. 17-12218 (July 17, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the defendant’s convictions for enticement of a minor and attempted transfer of obscene material.

First, the Court upheld the denial of a motion to suppress statements made by the defendant in his home without receiving Miranda warnings.  The Court concluded that the defendant was not “in custody” based on the totality of the circumstances.

Second, the Court found the evidence sufficient to convict on one of the obscene transfer counts.  The Court rejected the defendant’s argument that the government did not put all of the underlying videos as a whole into evidence, and instead admitted only screenshots from each video and had an agent testify about the contents.  The Court concluded that the evidence admitted was sufficient to establish that the material was obscene; the entire videos were not required.

Third, the Court concluded that the defendant invited any error with respect to the sufficiency of the indictment because the government superseded the indictment in response to the defendant’s specificity objection, and the defendant indicated that the problem had been cured.

Finally, the Court rejected three evidentiary claims under plain error.  First, the defendant argued that various rules of evidence were violated when the government admitted screenshots and testimony rather than the videos themselves, but the Court concluded that the defendant could not show than any error affected his substantial rights because, had he objected, the government would have simply admitted the videos.  Second, the Court concluded that, even if the obscene transfer charges were duplicitous for including multiple obscene images/videos in each count, any error did not affect his substantial rights because the jury would have unanimously agreed that at least one image in each count was obscene.  Lastly, the Court concluded that, for the same reason, the defendant could not show any effect on his substantial rights in failing to give an instruction to cure the duplicity problem.  

Gumbs: Upholding Convictions for Forcibly Assault Federal Officers with a Vehicle

In United States v. Gumbs, No. 18-13182 (July 15, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed the defendant’s convictions for using a deadly weapon to forcibly assault a federal officer.

First, the Court found no abuse of discretion in refusing to give the defendant’s proposed jury instructions.  With regard to the term “forcibly,” the court’s instruction tracked the language of the federal assault statute, which had a generally understood meaning using basic grade-school grammar.  With regard to “use of a deadly weapon,” the defendant’s proposed instruction relating to a car as a deadly weapon was substantially covered by the court’s instruction, and the court was not required to separately define the word “use” because it has a common meaning.  With regard to the court’s failure to give an instruction on the lesser included offense of simple assault, the Court concluded that there was no way the jury could have found him guilty of assault without finding him guilty of forcible assault.

Second, the Court found no abuse of discretion in the district court’s response to the jury’s question relating to the use of a car as a deadly weapon.  The court repeated the relevant portion of its earlier instruction, which was a correct statement of the law.

Third, the Court found sufficient evidence to support one of his convictions.  The Court rejected the defendant’s argument that he did not direct force against officers next to his car, because he stepped on the gas pedal as officers were reaching inside the car to arrest him.

Martinez: Upholding Guideline Enhancement for Possessing Gun In Connection With Another Felony

In United States v. Martinez, No. 18-12950 (July 14, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed an enhancement under USSG 2K2.1(b)(6)(B) for unlawfully possessing a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony.

The issue on appeal was whether the enhancement applied where the defendant plans to trade a gun for drugs in the future.  The Court held that it does where the  defendant “knew, intended, or had reason to believe (rather than hoped, wished, or dreamed) the gun was going to be used to buy drugs, and the sale would have (rather than may or might have) happened but for the defendant’s arrest or something else getting in the way.”  Because the district court in this case found that the defendant to trade his gun for a pound of drugs that he planned to sell, and that finding was not clearly erroneous, the Court upheld the enhancement.

Chalker: Upholding Healthcare Fraud Convictions Over Various Challenges

In United States v. Chalker, No. 18-15102 (July 13, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant pharmacist’s healthcare fraud convictions and sentence.

First, the Court found that the evidence was sufficient to support convictions for conspiracy to commit healthcare fraud and substantive healthcare fraud.

Second, the Court found that the indictment tracked the language of the statute and otherwise sufficiently informed the defendant of the charges.

Third, the Court found no error in permitting an FBI forensic accountant to testify as a lay witness because he never gave expert testimony, but rather merely summarized bank/wage records.  The Court also found no error in admitting expert testimony where the government disclosed the substance of the testimony before trial, but swapped out a new expert for the original expert, as there was no showing of prejudice.

Fourth, the Court found no abuse of discretion in denying the defendant’s motion to continue the trial based on defense counsel’s time to prepare and the expert swap.  The Court concluded that there was not enough to show prejudice.

Fifth, the Court found no clear error at sentencing in the loss calculation.  The defendant arguably waived that issue at sentencing.  And, in any event, the trial testimony supported the finding.

Stein: Upholding Restitution Order and Deeming Other Challenges Barred by the Mandate Rule/Law of Case

In United States v. Stein, No. 18-13762 (July 13, 2020) (Marcus, Luck, Ed Carnes), the Court re-affirmed the defendant’s fraud convictions and affirmed an award of restitution.

In a previous appeal, the Eleventh Circuit remanded for the district court consider to reconsider its loss finding with respect to restitution.   The Court held that, on remand, the district court relied on sufficient evidence to establish causation, and the court was permitted to rely on the government’s expert witness.

The Court declined to consider the defendant’s Brady/Giglio challenges to this convictions, or his challenges to the forfeiture order, because those challenges were outside the scope of the limited remand and could have been raised in the initial appeal.  The Court found no exception to either the mandate rule or the law of the case doctrine.  As for the convictions, the Court found that the evidence was neither newly discovered nor material.  As for the forfeiture order, the Court concluded that the defendant was not entitled to raise a new argument just because the judgment was amended for unrelated restitution purposes, and the Supreme Court’s intervening decision in Honeycutt dealt with a distinguishable forfeiture statute.