Williams: Defendant Forfeited Issue on Appeal re: Whether the Denial of Right to Self-Representation Automatically Renders Guilty Plea Involuntary

In United States v. Williams, Case No. 18-13890 (Mar. 30, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed the district court because it found that Mr. Williams had forfeited any arguments under which the Court could grant relief on appeal.  

Mr. Williams, a sovereign citizen, wanted to represent himself before the district court.  The district court held a Faretta hearing and denied Mr. Williams's request.  Mr. Williams subsequently pleaded guilty, with the assistance of counsel, and was sentenced to 151 months imprisonment.  

Mr. Williams was then assigned a new attorney on appeal.  This attorney moved to withdraw as counsel pursuant to Anders v. California, which the Court denied two times, finding at least two issues of arguable merit: (1) whether, despite later pleading guilty, the Court has discretion to review the denial of a defendant's request to proceed pro se, which is a potential structural error and, if so, (2) whether the district court erred in denying Williams's request to proceed pro se because it believed that he did not understand the risks of proceeding pro se due to his illogical legal theories.  The appellate brief failed to meaningfully address whether the guilty plea precluded the Court from addressing the Faretta issue.  As to that issue, the government noted a circuit split, with the 9th Circuit holding that an improper denial of a defendant's request for self-representation renders any subsequent guilty plea per se involuntary, thereby voiding it; and the 4th, 7th, 8th, and 10th Circuits holding that an improper denial of the right to self-representation does not render a subsequent guilty plea involuntary, so the subsequent guilty plea waives the right to appeal the improper denial.      

The Court noted that though the improper denial of the right to self-representation is structural error--which would have required reversal--it could not reach that issue because Mr. Williams's appellate counsel had failed to address the preliminary issue of what effect Mr. Williams's guilty plea had on his ability to raise that challenge.  That is, appellate counsel's failure to raise a challenge to the voluntariness of Mr. Williams's guilty plea in his initial brief forfeited the issue on appeal.  And, as a result, the Court found that it could not address the circuit split, nor the merits of the Faretta claim.  

The Court noted that, while under Campbell, it had the discretion to revive a forfeited issue, it was choosing not to here: "Even assuming that we have the discretion to revive the forfeited issue here, we cannot say that it would be appropriate to exercise our discretion and so decline to raise the voluntariness issue sua sponte."  

Said: Violation of Fla. Stat. 893.13(6)(a) Overbroad With Regard to Controlled Substance Definition

In Said v. U.S. Att'y Gen., 21-12917 (Mar. 24, 2022) (Jordan, Newsom, Tjoflat), the Court held that a violation of Fla. Stat. § 893.13(6)(a)--the Florida marijuana possession statute--did not relate to a controlled substance, as defined in 21 U.S.C. § 802, and thus did not prevent Mr. Said from accruing the necessary seven-year period of continuous residence for his application for cancellation of removal.  As such, the Court found that the BIA and IJ erred in finding that Said was ineligible for cancellation of removal.    

The Court reasoned that by the plain language of Fla. Stat. § 893.02(3), not all substances that it proscribes are federally controlled.  Section 893.02(3) includes “all parts” of the marijuana plant, while federal law does not.  For instance, federal law does not include the mature stalks of the marijuana plant or fiber produced from such stalks.  21 U.S.C. § 802(16).  This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law.  The Court distinguished its opinion from Chamu, where petitioner presented a hypothetical form of cocaine covered by state, but not federal law, to attempt to establish overbreadth.  Here, because the stalks of the marijuana plant do exist, it cannot be argued that Florida law just uses different terminology to describe the same substance proscribed by federal law.  The Court declined to ignore the statutory text and construct a narrower statute than the plain language supports.  

Lee: 18 U.S.C. 2251(a) and 2251(d) are Separate Offenses for Double Jeopardy

In United States v. Lee, 20-13505 (Mar. 21, 2022) (Lagoa, Brasher, Tjoflat), the Court affirmed the defendant’s conviction under 18 U.S.C. 2251(a) over a double jeopardy challenge.

The defendant sent text messages to a minor requesting sexually explicit images.  The defendant was originally charged with violating 2251(d), and a jury convicted him.  Shortly thereafter, however, the Eleventh Circuit in Caniff clarified that such conduct does not violate 2251(d), and the district court granted a judgment of acquittal.  Based on the same conduct, the government brought a new indictment, charging the defendant with violating 2251(a), and the defendant moved to dismiss on double jeopardy grounds.  The Eleventh Circuit held that the district court correctly denied the motion because 2251(a) and 2251(d) are distinct offenses with different elements.  2251(d) requires proof that the defendant made a notice or advertisement involving a sexually explicit depiction of a minor, whereas 2251(a) requires proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct.  Because there were scenarios where a defendant could violate 2251(d) but not 2251(a), and vice versa, they were not the same offense for double jeopardy purposes.

Howard: Affirming Convictions in Tricare Kickback Case, But Reversing Sentence as Too Lenient

In United States v. Howard, Case No. 18-11602 (Mar. 7, 2022) (Branch, Luck, Ed Carnes), the Court affirmed in part, and vacated and remanded in part, a case involving Tricare, a government program that provides health care insurance benefits for active and retired members of the military and their families.  

This case involved the actions of Nicole Bramwell, a physician, Larry Howard, a pharmacist, and Raymond Stone, a retired Navy veteran.  They were convicted of crimes involving the millions of dollars Tricare paid Howard for filling compounded cream prescriptions for patients.  Bramwell wrote the prescriptions and Stone helped to recruit patients.  All three were convicted for paying or receiving kickbacks and conspiring to do so, in violation of 18 U.S.C. § 371, 42 U.S.C. § 1320a-7b(b)(1)(A), and 42 U.S.C. § 1320a-7b(b)(2)(A).  Howard was also convicted of laundering some of the proceeds, in violation of 18 U.S.C. § 1957.  Howard was sentenced to 160 months in prison; Stone to 24 months in prison; and Bramwell to 36 months of probation, with one year to be served in home detention.  

All three challenge their convictions based on the sufficiency of the evidence.  Howard also contends that the government constructively amended his indictment.  The government cross-appealed, contending that Bramwell's sentence was unreasonably lenient.  

As to the sufficiency of the evidence challenges, the Court first noted that it did not matter whether the prescriptions involved were legitimate or medically necessary or good or bad for the patients, because the substantive kickback convictions were based entirely on whether there were kickbacks paid.  Additionally, the conspiracy convictions could be sustained based solely upon evidence sufficient to support the kickback conspiracy without regard to any evidence of fraud.  The Court also reaffirmed that in a case alleging multiple objects of the conspiracy, only one of those objects needs to be proven to support the conspiracy conviction.  With that in mind, the Court found the evidence sufficient to support all convictions.   

As to the constructive amendment argument, Count 4 charged Howard with paying one $5000 kickback to Bramwell on a specific date, but the government presented evidence that he wrote two different $5000 checks to her on that date.  Howard argued that the evidence presented at trial constructively amended the indictment.  The Court disagreed.  Evidence that there were two $5000 checks did not alter the essential elements of the offense charged because the amount of the kickback paid was not an element of the offense.  

As to the government's cross-appeal of Bramwell's sentence of probation, the Court agreed with the government that the sentence was substantively unreasonable.  The PSI calculated an advisory Guidelines' range of 78 to 97 months imprisonment for Bramwell.  But at sentencing, the district court characterized Bramwell as something of a victim of Howard, and after extensively considering the § 3553 factors, varied downwards to zero months imprisonment.  In reversing the district court, the Court found that the district court had abused its discretion in three ways--failing to afford consideration to relevant factors (seriousness of the offense, the need to promote respect for the law, the need to provide just punishment for the offense, and general deterrence); giving significant weight to an improper factor (loss of professional license, convicted felon status, and the temptation and opportunity to commit the crime); and committing a clear error of judgment in considering proper factors and the weight they were due.  The Court did not find the district court's explanation for its variance sufficiently compelling to support the degree of variance.  As such, the Court vacated and remanded the part of the judgment involving Bramwell's sentence to the district court for further proceedings, with instructions that a sentence of probation is unreasonable.       

Dupree: Granting Rehearing En Banc

In United States v. Dupree, Case No. 19-13776 (Feb. 18, 2022), the Court agreed to rehear Mr. Dupree's appeal en banc, vacating the panel's prior unpublished opinion.  The panel, in affirming Mr. Dupree's sentence, found itself bound by the Court's opinion in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995).    

The issue raised concerns whether a conviction under 21 U.S.C. § 846 (conspiracy to possess with intent to distribute a controlled substance) qualifies as a "controlled substance offense" for purposes of the career offender enhancement under U.S.S.G. § 4B1.1.  Mr. Dupree, in his petition for rehearing en banc, argued both that a § 846 conspiracy is not a "controlled substance offense" because Application Note 1 adds to, rather than interprets, § 4B1.2's text, and that a § 846 conspiracy is not a "controlled substance offense" because a § 846 conspiracy covers more conduct than a generic conspiracy.    

Campbell: En Banc Court Holds Court May Consider Forfeited Issues Sua Sponte in Extraordinary Circumstances

In United States v. Campbell, Case No. 16-10128 (Feb. 16, 2022), the en banc Court--in an opinion authored by Judge Tjoflat--considered whether the good-faith exception to the exclusionary rule is a proper ground for affirming Mr. Campbell's conviction despite the government's failure to raise that alternative ground before the panel, and answered in the affirmative.  The en banc Court also concluded that the good-faith exception applied, and accordingly, affirmed the denial of Mr. Campbell's motion to suppress.  

The district court determined that officers had reasonable suspicion to stop Mr. Campbell's car on account of his rapidly-blinking turn signal, and that officers did not unreasonably prolong the stop by asking Mr. Campbell twenty-five seconds worth of questions unrelated to the purpose of the stop.  Because the district court found the seizure reasonable, it did not address whether Mr. Campbell's consent to search his car was tainted or whether--as the government argued in supplemental briefing before the district court--the good faith exception to the exclusionary rule applied.  On appeal, Mr. Campbell once again challenged his seizure, and a panel of the Court affirmed.  In affirming, however, the panel considered the good-faith exception, which, though fully briefed in the district court below, was not addressed by the government on appeal.  The Court then granted Mr. Campbell's petition for rehearing en banc and asked the parties to focus on whether the Court may affirm based on the good-faith exception despite the government's failure to brief the issue.  

The en banc majority held that the Court may exercise its discretion to consider the good-faith exception despite the government's failure to brief the exception to the panel.  That is, the mere failure to raise an issue in an initial brief on direct appeal should be treated as a forfeiture of the issue, and therefore the issue may be raised by the court sua sponte in extraordinary circumstances after finding that one of the Access Now forfeiture exceptions applies.  The en banc majority treated the government's failure to raise good faith on appeal as a forfeiture, and not a waiver.  The en banc majority did so in light of the government's acknowledgement at oral argument that it was "conscious" of the good-faith exception when briefing to the panel.  In so holding, the en banc majority noted that classifying a failure to brief an issue as a waiver would unduly punish lawyers attempting to follow the Supreme Court’s advice on appellate briefing by removing even the possibility of addressing an important issue not briefed in an extraordinary case.  The en banc majority also noted that it was more appropriate to treat the failure to raise an issue in a brief as forfeiture, not waiver, and not to automatically assume waiver just because a party may have been aware of an issue but did not brief it. 

In this case, the en banc majority found that the fourth exception to forfeiture--where the proper resolution of the issue is beyond any doubt--applied.  The en banc majority also found that the case presented an extraordinary circumstance to justify the Court's exercise of its discretion to excuse the government's forfeiture for a number of reasons, including because of the strong policy considerations underlying the exclusionary rule.  The en banc majority noted that "[s]uppression of evidence . . . is our last resort, not our first impulse," and refused to exclude evidence based on government counsel's mistake (which would do nothing to deter police misconduct).    

Turning to the merits, the en banc majority held that Mr. Campbell's rapidly-blinking turn signal created reasonable suspicion that a traffic violation had occurred; the Court's holding in Griffin had been abrogated by the Supreme Court in Rodriguez, and, as such, officers' questions about the contraband in the car unlawfully prolonged the stop; and officers relied in good faith on Griffin, which, at the time of Mr. Campbell's arrest, was the Court's last word on the issue of prolongation.              

Judge William Pryor concurred, but wrote separately to "clarify some fundamental principles involving the en banc process, waiver, and the good-faith exception."  He noted: "This appeal concerns when the Judicial Branch should intervene on behalf of a criminal to exclude indisputably reliable evidence. And the result of this appeal is just: A criminal will receive the punishment that the district court decided he deserves without an unjustified exercise of judicial power by this Court."  He stressed that when rehearing a case en banc, the panel decision no longer exists, and the en banc court instead reviews the judgment of the district court.  As such, the majority correctly held both that the government may properly raise alternative arguments in support of the district court’s judgment before the en banc court that it failed to raise before the panel, and that the government has properly briefed the good-faith exception to the en banc court.   

Judges Newsom, Jordan, Wilson, Rosenbaum, and Jill Pryor dissented.  They viewed this case as one about judicial power and its limits.  The question presented, in their eyes, was: "Can an appellate court affirm a criminal defendant's conviction on a ground that, although argued to the district court, the government concedes it 'conscious[ly]' decided not to present on appeal?" The dissent's answer, no, relying on the principle of party presentation and the "critical" distinction between waiver and forfeiture.  "The majority opinion strongly hints at what is, in effect, a per se rule authorizing (and perhaps even requiring?) appellate panels in this circuit to ignore a failure by a governmental entity to argue the good-faith exception and to decide that issue sua sponte. It’s a bold stroke."   

 

Dennis: Offenses Referenced in Revocation Petition Include Lesser-Included Offenses

In United States v. Dennis, Case No. 21-10316 (Feb. 16, 2022) (William Pryor, Jordan, Anderson), the Court affirmed Ms. Dennis's revocation sentence.  

The issue addressed on appeal concerned the notice that a probationer must receive before her probation can be revoked.  Ms. Dennis was serving a sentence of 24 months probation when probation filed a petition to revoke her probation for violating her conditions of supervision.  The petition alleged that she had committed a felony (willful obstruction of law enforcement by threats or violence), and two misdemeanor offenses (simple battery on a police officer and theft of services).  At her revocation hearing, Ms. Dennis argued that she did not commit felony obstruction, which requires something more than misdemeanor obstruction, for which she was not charged.  She argued that she was entitled to written notice of the allegations against her, and that because there was no allegation of misdemeanor obstruction, she could not be found to have committed that offense.  The district court rejected Ms. Dennis's argument, found that she had committed the act of misdemeanor obstruction, and sentenced her to 2 years of supervised release.  

On appeal, this Court affirmed.  At issue was whether the petition to revoke Ms. Dennis's probation constituted written notice of the claimed violations of her probation.  Ms. Dennis argued that she had been deprived of notice and an opportunity to contest the finding that she had committed misdemeanor obstruction, in violation of the Due Process Clause and Fed. R. Crim. P. 32.1.  The Court disagreed, finding that in being warned that she was charged with committing the felony-level offense, she received adequate notice to defend against the misdemeanor-level offense.  This is so because the processes and rights to which one is entitled in revocation proceedings are less rigid and plentiful than the processes and rights to which one is entitled in criminal prosecutions, and because the process due to defendants even in criminal prosecutions does not require the specific identification of less included offenses in charging instruments if the greater offense is adequately identified and explained.  

As such, the Court held that a district court may find that a defendant committed a lesser included offense of a greater offense that was expressly mentioned in the petition for revocation, and that misdemeanor obstruction is a lesser included offense of felony obstruction.                   

Williams: Affirming Denial of Motion for Sentence Reduction Under § 404

In United States v. Williams, Case No. 20-14187 (Feb. 15, 2022) (Wilson, Luck, Lagoa), the Court affirmed the denial of Mr. Williams's motion for a sentence reduction under § 404 of the First Step Act, finding that he was not sentenced for a covered offense.  

Mr. Williams pleaded guilty to one count of distribution of unspecified amounts of crack cocaine within 1,000 feet of a housing facility, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). He stipulated that the drug quantity attributable to him for purposes of calculating his guideline range was more than 500mg but less than 1g of crack cocaine.  His base offense level was calculated using the career offender enhancement and resulted in a guideline imprisonment range of 188 to 235 months.  His statutory penalty was 1 to 40 years' imprisonment and at least 6 years of supervised release, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 860(a).  He was sentenced to 200 months' imprisonment followed by 6 years of supervised release.  

On appeal of the district court's denial of his motion to reduce his sentence based on the First Step Act, Mr. Williams argued that, because his 21 U.S.C. § 860(a) conviction was a “covered offense” under the First Step Act given that the Fair Sentencing Act modified § 860(a) by modifying 21 U.S.C. § 841(b), the district court erred in finding him ineligible for a sentence reduction.  The Court disagreed.  

Citing to the Supreme Court's decision in Terry and its own opinion in Jones, the Court rejected Mr. Williams's argument that § 860(a) incorporates § 841(b) entirely.  Instead, the Court reasoned that whether an element's offenses are spread across multiple sections or subsections of the U.S. Code is not relevant; the proper inquiry is whether the offense--defined by its elements--was modified by the Fair Sentencing Act. Applying the Supreme Court's reasoning in Terry to § 860(a), the Court held that Mr. Williams’s conviction under §§ 841(b)(1)(C) and 860(a) was not a covered offense under § 404 because the penalty for his offense was set by § 841(b)(1)(C), which the Fair Sentencing Act did not alter.  Additionally, none of the distinctions between the offense defined by § 841(a) and (b)(1)(C) and Mr. Williams’s offense were affected by the Fair Sentencing Act nor central to the holding in Terry.    

The Court further bolstered the viability of its opinion in Jones post-Terry.  It noted that the there is no indication that Jones’s instructions on determining a “covered offense” are at odds with Terry, especially considering that Jones did not expressly resolve whether the Fair Sentencing Act also modified § 841(b)(1)(C).  The language in Jones indicating that a defendant could have been sentenced for a covered offense if his statutory penalties remained the same now does not mean that Mr. Williams, whose statutory penalties were not modified, is indeed eligible for a reduction.        

Washington: Clarifying Probable Cause Standard in Context of Arrests

In Washington v. Durand, Case No. 20-12148 (Feb. 7, 2022) (William Pryor, Lagoa, Schlesinger (M.D. Fla.)), the Court, in a 42 U.S.C. § 1983 case, addressed whether an officer must release a suspect detained pursuant to a valid arrest warrant when the officer learns of possibly exculpatory evidence.  

Here, during the investigation of the murder of an elderly woman, Vivianne Washington was arrested pursuant to a warrant based on a tip from a confidential informant that she was involved in the crime and a positive photograph identification by a perpetrator who had already confessed.  Shortly after Ms. Washington's arrest, however, police officers brought her in front of the perpetrator, who said, "That's not her."  Officers did not immediately release Ms. Washington.  Instead, she was detained for an additional twenty hours, and only released when the perpetrator confessed that he had lied about Ms. Washington.

Ms. Washington argued that police officers had an affirmative duty to return to the magistrate to inform him that the perpetrator had failed to identify her in person, and that their failure to do so violated her right to be free from unreasonable seizures under the 4th and 14th Amendments because there was no longer probable cause to support her detention.  

The Court disagreed and upheld the district court's grant of qualified immunity to the police officers involved for three reasons: (1) probable cause persisted throughout Ms. Washington's detention; (2) police officers were entitled to rely on the facially valid and lawfully obtained warrant; and (3) police officers did not affirmatively act to continue the prosecution against Ms. Washington.  

In so holding, the Court clarified the probable cause standard in the context of arrests.  Relying on the Supreme Court's opinion in District of Columbia v. Wesby, 138 S. Ct. 577 (2018), the Court explained that probable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish a probability or substantial chance of criminal activity.  The Court disclaimed reliance on an older standard that predated Wesby, which required "facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information that would cause a prudent person to believe that the suspect has committed, is committing, or is about to commit an offense."      

Maurya: Vacating Restitution Order and Sentence on Ex Post Facto Grounds

In United States v. Maurya, Case No. 19-10746 (Feb. 1, 2022) (William Pryor, Grant, Anderson), the Court affirmed Nathan Hardwick's convictions, but vacated the restitution portion of his sentence and remanded.  The Court vacated Asha Maurya's sentence and remanded for resentencing.  

On appeal, both Hardwick and Maurya challenged the restitution order requiring a payment of over $40 million because the district court failed to support its order with any reasoning.  The government conceded that the district court failed to support its calculation with any factual findings, and the Court agreed.  As a result, the Court vacated the restitution order and remanded for the district court to "correct its oversight."  

Maurya also argued that her sentence must be vacated because the district court applied a sentencing enhancement that did not exist when her offense was committed, therefore violating the Constitution's prohibition against ex post facto laws.  Applying plain error review, the Court agreed.  The Court noted that though courts typically apply the Guidelines in effect at the time of sentencing, the Ex Post Facto Clause prohibits the use of the Guidelines issued after the offense that create a higher applicable sentencing range.  In this case, the district court used the 2018 Guidelines, which included a 2-level substantial financial hardship enhancement added in 2015--after Maurya's offense conduct.  The Court found error, and noted that it was "unmistakably plain."  The Court also found the difference in Guidelines range enough to show a "reasonable probability of a different outcome absent the error" that affected Maurya's substantial rights, which the Court also found sufficient to satisfy the fourth prong of plain error review.  

The Court rejected all of Hardwick's challenges to his convictions.  Hardwick first argued that it was error for the court to deny his request for a bill of particulars before trial.  The Court found no abuse of discretion because the indictment put Hardwick on notice of the charges against him.  A bill of particulars cannot be used to force the government to reveal its theory of the case, nor can it be used to compel the government to provide the essential facts regarding the existence and formation of a conspiracy.  

Hardwick next challenged the district court's limitation of his 404(b) evidence as to Maurya, which he intended to use to establish her modus operandi.  The Court found no abuse of discretion in the district court's decision to exclude a suicide note and a video, and to limit the defense to 2 witnesses instead of 4.             

Hardwick next challenged the district court's decision to admit as an exhibit a summary chart.  The Court found no abuse of discretion because the chart was properly admitted under FRE 1006--the assumptions made in the chart were supported by evidence in the record.  

Hardwick next challenged the district court's decision to allow the government to ask a witness about Maurya's guilty plea because it allowed the government to get in information about her without having to call her to testify.  The Court found no abuse of discretion because the defense had already informed the jury of her plea deal.  

The Court also rejected Hardwick's challenges to the sufficiency of the evidence as to conspiracy to commit wire fraud, wire fraud, and making a false statement to an FDIC-insured financial institution.  

Finally, the Court rejected Hardwick's remaining challenges to the jury instructions, that cumulative error rendered his trial unfair, and that his sentence was substantively unreasonable.  

Chamu: Rejecting Florida Cocaine Overbreadth Argument in Immigration Context

In Chamu v. U.S. Att'y Gen., No. 19-13908 (Jan. 26, 2022) (Branch, Grant, Brasher), the Court, on appeal from a Board of Immigration Appeals ("BIA") decision, found Mr. Chamu ineligible for cancellation of removal on account of his prior conviction of an offense "relating to a controlled substance (as defined in section 802 of title 21)"--namely cocaine possession under Fla. Stat. §  893.13(6)(a).

Mr. Chamu argued that the Florida statute was overbroad because Florida considers some substances to be cocaine that the federal government, in the federal controlled substance schedules, does not.  He also argued that the Florida statute was overbroad because it covered more states of mind than its federal counterpart--that is, the Florida possession statute alone presumes that a defendant knows a possessed substance is illegal, whereas federal law requires proof of knowledge.  

The BIA rejected both of his arguments.  As to his first argument, the BIA accepted that the Florida and federal definitions were not a perfect match, but concluded that the mismatch made no difference because Mr. Chamu had failed to show a "realistic probability that the Florida statute would be enforced more broadly."

The Court, reviewing the BIA's determination, applied the categorical approach to determine if § 893.13 is overbroad, and noted that Mr. Chamu's challenge rested entirely on the facial inconsistencies between the federal and state cocaine statutes--the federal statute omits a subcategory of cocaine isomers that the state statute does not, namely nongeometric diastereomers.  But even accepting that, the Court found that Mr. Chamu's argument failed because it went no further.  "Even if some chemical compounds have nongeometric diastereomers, nothing in the record suggests that cocaine has any, let alone that they exist in the quantities required for an offender to be prosecuted for possessing them. If cocaine does not have a nongeometric diastereomer, then the two statutes cover exactly the same ground."  

Mr. Chamu bore the burden of proof, and offered no proof to support his allegation that an existing cocaine stereoisomer falls outside the federal definition.  Accordingly, the Court declined to hold that Florida's statute was broader than its federal counterpart based only on the possibility that it might be so.  Though Mr. Chamu relied on the expert declaration of a chemist, the declaration established only that, as a matter of chemistry, some substances have stereoisomers that are neither optical isomers nor geometric isomers.  The declaration failed to assert the existence of a cocaine stereoisomer that falls outside the federal definition--it gave "no examples of an actual isomer that is a diastereomer but not a geometric isomer of cocaine."  

In so holding, the Court distinguished numerous out-of-circuit cases holding the opposite because those cases involved different state statutory definitions and different burdens of proof.  The Court also noted in footnote 3: "We do not mean to suggest that identifying a specific chemical compound covered by state (and not federal) law is sufficient to show a realistic probability of prosecution. More is likely required. But at least identifying such a substance is a necessary first step."  As such, while the Court noted it could not hold Florida's definition of cocaine to be completely consistent with the federal definition, it was holding that Mr. Chamu failed to prove that Florida's definition covers more substances.  

Additionally, the Court rejected Mr. Chamu's mens rea argument because the federal immigration statutes do not reference mens rea, so the Court, applying the categorical approach, had nothing to compare between the federal and state statutes.  The Court also declined Mr. Chamu's invitation to add a mens rea requirement to the federal immigration statutes in order to apply the categorical approach.   

    

Nicholson: Affirming Child Pornography and Child Sex Abuse Convictions

In United States v. Nicholson, No. 19-11669 (Jan. 24, 2022) (Jill Pryor, Luck, and Brasher), the Court affirmed Nicholson's convictions for child pornography and child sex abuse.

On appeal, Nicholson made three arguments: (1) the evidence was insufficient as to three counts; (2) the district court should have suppressed the evidence from the searches that occurred in New York and Kentucky; and (3) the district court should have granted his motion for a mistrial when it admitted, but then excluded, six images found in a camera's unallocated space.  

As to the first issue, the Court found the evidence sufficient to sustain the convictions.  It first found that with regard to convictions under 18 U.S.C. § 2423, the government need not prove actual sexual activity, and that evidence of actual sex acts is not the only way to prove the criminal intent to commit those acts.  The Court next rejected Nicholson's venue challenge to his conviction under 18 U.S.C.  §§ 2251(a), (e).  The Court reaffirmed that venue need only be proved by a preponderance of the evidence as opposed to beyond a reasonable doubt.  Additionally, the Court noted that there need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.  

As to the second issue, Nicholson argued first that the district court should have granted his motion to suppress images of child pornography found on his laptop in New York because the government failed to follow an addendum appended to the search warrant that required any search of electronic media be completed within sixty days, instead searching his laptop about six months after obtaining the warrant.  The Court disagreed, finding that the Fourth Amendment does not specify that search warrants contain expiration dates and contains no requirements about when the search or seizure is to occur or the duration thereof.  Additionally, the probable cause that justified the warrant did not dissipate or go stale.  The Court also noted that any violation of Fed. R. Crim. P. 41 did not support suppression of the evidence.  

Nicholson also argued that evidence resulting from the Kentucky search of the contents of the truck he had been driving should have been suppressed.  The government conceded that the FBI's delay in securing a warrant for the items taken from the truck violated the Fourth Amendment.  As such, the Court addressed whether the evidence gathered from the eventual warrant-based search of that property should have been suppressed.  The Court held no, finding that the good-faith exception applied.  Though the Court found the FBI to be negligent, its negligence "does not warrant suppression."  The Court also found that any error was harmless beyond a reasonable doubt.     

Finally, Nicholson argued that the court abused its discretion in denying his request for a mistrial based on the admission and publication of government exhibits that contained images of the victims obtained from his camera's unallocated space, which the government only learned about from Nicholson's own expert.  The Court disagreed, holding that Nicholson had not demonstrated "incurable prejudice" because the district court excluded the exhibits and instructed the jury that those images would be unavailable during deliberations.      

  

Garcon: Granting Rehearing En Banc

In United States v. Garcon, No. 19-14650 (Jan. 21, 2022), a majority of the judges in active service agreed to rehear the appeal en banc.  The Court vacated the panel's opinion.  

Moore: Vacating Supervised Release Imposed at Third Revocation, but Affirming, Over Dissent, Imposition of Additional Term of Imprisonment

In United States v. Moore, No. 20-11215 (Jan. 13, 2022) (Newsom, Branch, Lagoa), the Court affirmed in part and vacated in part Moore's contempt conviction and sentences.  

Upon the third revocation of his supervised release, Moore was sentenced to 18 months' imprisonment and an additional 18 months' supervised release.  During the revocation hearing, the court also found him in criminal contempt and sentenced him to a consecutive term of 6 months' imprisonment.  

Moore was originally convicted of possession of several unregistered destructive devices, and sentenced to the statutory maximum for his offense--120 months' imprisonment followed by 36 months' supervised release.  He completed his term of imprisonment, but then had his supervised release revoked three times.  At his first revocation hearing, he was sentenced to 6 months' imprisonment and 24 months' supervised release.  At his second revocation hearing, he was sentenced to 18 months' imprisonment and 18 months' supervised release.  What occurred at his third revocation hearing forms the basis of this appeal.

On appeal, Moore first argued that the district court plainly erred in imposing an additional term of supervised release because it failed to account for the terms of imprisonment that were imposed upon the prior revocation of his supervised release.  The government conceded the issue, and the Court agreed.  The Court reasoned that Moore’s maximum term of supervised release upon his original conviction was 36 months.  And he was sentenced to a total of 42 months’ imprisonment for his prior revocations. Thus, under § 3583(h), because he had already served a term of imprisonment for prior revocations in excess of the statutory maximum amount of supervised release, the district court was not authorized to impose any additional supervised release and it was error for the district court to do so.  The Court found this error to be plain, citing to § 3583(h) and its prior precedent, United States v. Mazarky, 499 F.3d 1246 (11th Cir. 2007).   

Moore next argued that 18 U.S.C. § 3583(e)—the statute under which he was sentenced upon revocation—was unconstitutional because it allowed the district court to extend Moore’s sentence beyond the authorized statutory maximum for his offense of conviction based solely on “judge-found facts” in violation of the Fifth and Sixth Amendments as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013).  More specifically, he argued that when his sentence is viewed in the aggregate, it totals 13.5 years, which exceeds the authorized statutory maximum of 13 years (based on combining the statutory maximum term of imprisonment and the statutory maximum term of supervised release).  Alternatively, he argued that the constitutional concerns could be avoided if the Court interpreted § 3583(e)(3) as imposing an aggregate limitation on revocation sentences that caps the total sentence a defendant may serve at the statutory maximum for the underlying offense.  The Court disagreed.  Reviewing for plain error, the Court held that there was no error, let alone one that was plain.  The Court reasoned that nothing in the text of § 3583(e) "provides that the full panoply of rights provided for in the Fifth or Sixth Amendments apply to § 3583(e) revocation proceedings, nor does the text provide that the total time a defendant may serve for his original conviction and revocation cannot exceed the combined statutory maximum terms of imprisonment and supervised release for the original offense of conviction.  Nor did the Court find a Supreme Court or 11th Circuit case directly on point.  The Court found itself bound by its prior opinion in United States v. R. Scott Cunningham, 607 F.3d 1264 (11th Cir. 2010), and found the Supreme Court's plurality opinion in United States v. Haymond, 139 S. Ct. 2369 (2019), not directly on point because it addressed a different provision of § 3583.  The Court found the lack of controlling authority to be fatal to Moore's claim, which was raised on plain error.     

Third, Moore argued that his revocation sentence was substantively unreasonable.  The Court rejected this argument.    

Fourth, Moore argued that the district court plainly erred in convicting him of criminal contempt without giving him an opportunity to allocute before sentencing him.  The Court disagreed.  Though norms suggest that a defendant be given an opportunity to be heard, no rule so requires.  Therefore, Moore's argument failed.  

Finally, Moore argued that the Court should exercise its "inherent supervisory authority" to modify the contempt sentence.  The Court found no abuse of discretion by the district court, and therefore refused Moore's request to modify his sentence.  

Judge Lagoa wrote separately to concur in part and in the result.  She took issue with Part II.B. of the Court's opinion, namely, the district court's decision to sentence Moore to 18 months' imprisonment for the third revocation of his supervised release, resulting in a cumulative total of 162 months' imprisonment for both the underlying offense and the 3 revocations of supervised release.  She noted that the standard of review in this case--plain error--made the difference in this case because she believed the issue to be one of first impression, without any controlling precedent from the Court.    

Judge Newsom dissented in part.  He noted that Moore was convicted of a federal crime that carried a statutory maximum penalty of 10 years in prison plus 3 years of supervised release. Because any supervised release time can (upon the occurrence of certain conditions) be converted into prison time, the defendant’s total statutory maximum penalty was 13 years in prison. Without convicting him of any new crimes, the district court sentenced the defendant to a total of 13 and a half years in prison. Because that sentence plainly violated the Fifth and Sixth Amendments inasmuch as it exceeded the statutory maximum of 13 years, he dissented from Part II.B. of the Court’s opinion.  His dissent relies upon Haymond, as well as on "foundational American law, embodied (most recently, but hardly exclusively) in Apprendi and its progeny."  He also noted that the majority opinion erroneously found itself bound by Cunningham, which addressed a different question entirely.  

Smith: Vacating Conviction for Improper Venue

In United States v. Smith, No. 20-12667 (Jan. 12, 2022) (William Pryor, Grant, Hull), the Court vacated the defendant's conviction for theft of trade secrets and related sentencing enhancements for lack of venue, affirmed the extortion conviction and related sentencing enhancements, and remanded for resentencing. 

The Court addressed whether an accused can be tried in a venue where he did not commit any of the conduct elements of the charged crime.  Defendant was a software engineer in Mobile, Alabama who obtained the coordinates of artificial fishing reefs in the Gulf of Mexico from a website owned by StrikeLines, whose office is located in Pensacola, Florida, but whose servers are located in Orlando, Florida.  He did so by bypassing StrikeLines's security measures, and then posted them to his Facebook page.  Defendant was convicted of one count of theft of trade secrets and one count of extortion, and received an enhanced sentence.  

In the district court, the defendant moved to dismiss the indictment, and then renewed the motion to dismiss at trial, on the grounds that venue was improper.  He argued that venue was improper in the Northern District of Florida because all prohibited conduct occurred in the Southern District of Alabama and the data that was accessed was stored in the Middle District of Florida.  The government responded that the stolen data was produced in the Northern District of Florida and later transmitted to Orlando, and that the effects of the crime on the victims in the Northern District of Florida were relevant for venue purposes so the court should adopt the "substantial contacts" test for venue.  The district court agreed with the government.

The Court on appeal found venue improper for the theft-of-trade-secrets count.  Venue was improper in the Northern District of Florida because the defendant never committed any essential conduct in that location.  The Court declined to adopt the government's effects-of-the-crime argument.  The Court also noted that the remedy for improper venue is vacatur of the conviction, not acquittal or dismissal with prejudice, and double jeopardy would not preclude a retrial in the proper venue.

As to the extortion conviction, the Court found venue to be proper and the evidence admitted at trial sufficient to support the conviction.  The Court first rejected defendant's argument that the lack of proper venue as to the theft-of-trade-secrets count amounted to structural error requiring that his extortion conviction be vacated.  Next, the Court found the evidence admitted to be sufficient to support the jury's verdict.  

Finally, as to the sentencing enhancements, the Court vacated the loss enhancement, as well as the enhancements for use of sophisticated means and special skills, because all were based on the now-vacated theft-of-trade-secrets offense.  The Court, however, affirmed the enhancement for obstruction of justice because defendant gave "false testimony" at trial.  The Court also rejected defendant's argument that he should have received a reduction for acceptance of responsibility.            

    

Sharp: Given Intervening Change in Law, No Waiver by the Government for Failing to Rely on a Prior Conviction for ACCA Purposes at Sentencing

In United States v. Sharp, No. 20-12574 (Dec. 28, 2021) (Wilson, Lagoa, Martinez (S.D. Fla.)), the Court, in a government appeal, vacated the district court’s non-ACCA sentence and remanded for re-sentencing.

At sentencing, the government failed to rely on the defendant’s prior Georgia conviction for making terroristic threats as an ACCA predicate because, at that time, circuit precedent had held that it categorically did not qualify as an ACCA predicate.  However, ten days after sentencing, the Eleventh Circuit modified that precedent and held that the Georgia statute was divisible and so could qualify.  In this case, the Eleventh Circuit held that, in light of the intervening change in the law, the government did not waive its ability to rely on that prior conviction by failing to rely on it at sentencing.  The Court found it to be "too far a stretch" to require the government to object to binding precedent or anticipate future changes in the law.  The Court remanded for the district court to receive evidence and determine whether the defendant’s particular conviction qualified under the ACCA.

Fleury: Upholding Interstate Threats/Cyberstalking Convictions Over Various Challenges

In United States v. Fleury, No. 20-11037 (Dec. 16, 2021) (Wilson, Rosenbaum, Hull), the Court affirmed the defendant’s convictions for transmitting interstate threats and cyberstalking.

First, the Court rejected the defendant’s facial and as-applied First Amendment challenges to the cyberstalking statute.  Joining every circuit to address the issue, the Court held that the statute was not facially overbroad because the elements did not target expressive speech but rather unprotected conduct involving an intent to kill, injure, harass, or intimidate.  And the Court rejected the defendant’s as-applied challenge because his conduct did not involve a matter of public concern but rather “true threats” to the families of the victims of the Parkland shooting.

Second, the Court held that the indictment sufficiently charged the cyberstalking counts because it tracked the statutory language and otherwise provided adequate notice of the charges.

Third, the Court held that the evidence was sufficient for a reasonable jury to find that the defendant had the subjective intent to transmit interstate threats and to cyberstalk the victims.  Although the defense expert testified about the defendant’s autism, the jury heard from the government’s competing expert and was free to weigh assess the experts’ credibility as it saw fit.

Fourth, the Court held that the district court did not plainly err by failing to sua sponte preclude the government from introducing evidence relating to the defendant’s attraction to serial killers, because it helped the jury understand the motive for his actions, and the instructions ensured that the jury could convict only for the crimes with which he was charged.

Finally, as to the cyberstalking instruction, the Court rejected the defendant’s argument that the district court was required to instruct the jury that the government had to prove his subjective intent to communicate a true threat, since the plain language of the statute already required proof that the defendant intended to harass or intimidate.  And the Court found no abuse of discretion when the district court modified the defendant’s theory of defense instruction because, while his theory contained a correct definition of a “true threat,” it was not the only correct definition from the Supreme Court’s decision in Virginia v. Black, and the court’s instructions as a whole adequately covered the defendant’s subjective-intent theory of defense.

Telcy: Sentence Reduction Under Section 404 of First Step Act Is not a "New Judgment" for Second-or-Successive Purposes

 

In Telcy v. United States, No. 19-13029 (Dec. 10, 2021) (Wilson, Lagoa, Brasher), the Court affirmed the dismissal of a 2255 motion as an unauthorized second or successive motion.

The issue on appeal was whether a sentence reduction under Section 404 of the First Step Act qualifies as a “new judgment” for purposes of the bar on second or successive habeas 2255 motions, and thus resets the clock.  The Court held that it does not.  The Court emphasized that Section 404 did not authorize courts to conduct a plenary, de novo resentencing or impose a new judgment.  Rather, as a matter of legislative grace, Section 404 only authorizes a sentence reduction for certain covered offenses, and it does not require the court to consider the 3553(a) factors or hold a hearing with the defendant.  For those reasons, and applying the Court’s precedents, it held that a sentence reduction under Section 404 did not give rise to a “new judgment” for purposes of the bar on second or successive 2255 motions.

Litzky: Exclusion of Expert Testimony Did Not Violate Constitutional Right to Present a Defense

In United States v. Litzky, No. 20-10709 (Nov. 23, 2021) (Jordan, Newsom, Ed Carnes), the Court affirmed defendant's convictions for possessing child pornography, producing it, and conspiring to do the same.  

Defendant raised two issues on appeal: (1) the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability; and (2) her below-Guidelines sentence was substantively unreasonable. 

The district court found that the expert's proffered testimony failed to focus on the defendant's specific state of mind at the time of the charged offenses.  Therefore, because it failed to show how the defendant was unable to form the required mens rea, it would only serve to confuse the jury.  The Court agreed, finding that defendant's proffered expert testimony was not keyed to any legally acceptable defense theory.   The Court found that the defendant had failed to demonstrate a compelling reason for making an exception to the expert witness rule in FRE 702.  It reasoned that the defendant's proffered expert testimony was more akin to justification and excuse rather than a legally acceptable theory of lack of mens rea.  The Court also found that defendant failed to show that her proffered expert testimony bore persuasive assurances of trustworthiness as required by Rule 702.  "As the Supreme Court [has] explained, the Constitution leaves to the judges who must make these admissibility decisions wide latitude to exclude evidence that poses an undue risk of confusion of the issues.”        

The Court also affirmed defendant's 30-year sentence, which was 600 months below the Guidelines' recommendation.  The district court explained, in a 17-page order, why it believed a downward variance of 50 years--but no more--met the goals of sentencing.  The Court found the district court's determination well within the bounds of its discretion.  

Grady: Affirming Convictions and Sentences Over RFRA Objections

In United States v. Grady, No. 20-14341 (Nov. 22, 2021) (Branch, Grant, Ed Carnes), the Court affirmed defendants' convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass.  

Defendants, members of the Plowshares Movement--equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and others tools--illegally entered the Kings Bay naval base, intending to engage in symbolic disarmament as part of their faith.  They spray-painted numerous anti-nuclear and religious messages at various locations inside the base, poured bottles of human blood at various locations, taped an "indictment" outlining their complaints to a door of one of the buildings, defaced various monuments within the base, and entered restricted areas to hang banners protesting the morality of nuclear weapons and pray.  They were arrested and indicted on charges of: conspiracy; destruction of property on a naval installation; depredation of government property; and trespass.

All defendants moved to dismiss the indictment, arguing that their prosecution violated the Religious Freedom and Restoration Act ("RFRA").  Specifically, they asserted that their actions at the Kings Bay naval base were “in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal,” and the government’s prosecution of them substantially burdened their religious exercise in violation of RFRA. They maintained that, under RFRA, the government could not show that the decision to charge the defendants was the least-restrictive means of furthering its compelling interests in the safety and security of the base.  The district court denied their motion.   

On appeal, this Court affirmed the district court.  The Court first noted that the only prong of the RFRA analysis in dispute was the fourth prong: whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets.  In order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needs to accommodate both the religious exercise practiced in this case—unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations.  The Court found that the defendants failed to proffer a least-restrictive means that would simultaneously accommodate their religious exercise while protecting the government’s compelling interests, as was their burden to proffer.

The Court further held that the district court did not err in holding the defendants jointly and severally liable for the full amount of restitution.  Because the losses in question resulted from acts which were part of the conspiracy, the district court had the authority to hold all defendants jointly and severally liable for the full amount of restitution.    

The Court also held that the district court did not err in denying a reduction for acceptance of responsibility to the defendants.  The defendants argued that they went to trial only because of their RFRA defense, and maintained that they never denied engaging in the conduct in question.  But the Court held that the district court did not clearly err in finding that neither defendant had clearly demonstrated acceptance of responsibility because they continued to deny the illegality of their actions and put the government to its burden of proof.  Additionally, because the district court made a Keene finding, any error in denying acceptance of responsibility would have been harmless.       

The Court also held that the district court did not err when it used the total damages amount to enhance one defendant's base offense level under U.S.S.G. § 2B1.1(b)(1)(C).  The Court found that the evidence at trial supported the enhancement.    

The Court also held that the district court did not err in failing to address one defendant's RFRA-related sentencing argument in the context of 18 U.S.C. § 3553(a).  

Finally, the Court held that the district court did not abuse its discretion in failing to give one defendant's requested mistake-of-fact jury instruction.  The government had to prove that the defendants acted consciously and deliberately, not that they knew or believed their actions were illegal.  Therefore, because mistake of fact is not a valid defense, the district court did not abuse its discretion in declining to give the requested instruction.