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

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

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

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

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

Malone: Finding Breach of Plea Agreement by Government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Ifediba: Affirming Healthcare Fraud Convictions and Sentences

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

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

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

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

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

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

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

Utsick: Affirming Sentence and Order of Restitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Watkins: Sufficient Evidence Supported Convictions for Defrauding Investors

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

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

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

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

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

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

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

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

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

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

Butler: Affirming Upward Variance Life Sentence in Enticement/Production Case

In United States v. Butler, No. 21-10659 (Wilson, Branch, Tjoflat), the Court affirmed the defendant’s life sentence for enticing a minor to engage in sexual activity and for production of child pornography.

Although it was an upward variance from the guideline range of 292-365 months, the Court held that the life sentence was substantively reasonable.  The district court did not abuse its discretion by failing to consider his age, amenability to treatment, acceptance of responsibility, or the circumstances of his prior offenses.  The district court did not abuse its discretion by giving significant weight to any irrelevant sentencing factors.  And the district court did not unreasonably weigh the sentencing factors.  Instead, the court reasonably concluded that the guideline range did not adequately reflect his criminal history or the need to protect the public, and that finding was within the court’s discretion.

Hesser: Reversing Denial of 2255 Motion Based on Counsel's Failure to Seek Rule 29 Judgment of Acquittal

In Hesser v. United States, No. 19-13297 (July 13, 2022) (Lagoa, Brasher, Tjoflat), the Court reversed the partial denial of a federal prisoner’s 2255 motion.

The movant alleged that defense counsel was ineffective for failing to move for a Rule 29 judgment of acquittal after the government’s case in chief.  The district court granted the 2255 motion for three counts of tax fraud—the Eleventh Circuit on direct appeal had already held that the evidence was insufficient and affirmed based on the deferential standard of review.  But the district court denied the 2255 motion with respect to a conviction for attempted tax evasion.  On appeal, the Eleventh Circuit held that this was error because, had counsel filed a Rule 29 motion after the government’s case, the district court would have been required to grant it.

The Court explained that the government’s evidence was insufficient because it did not establish an affirmative act constituting attempted tax evasion.  Although the defendant hid gold in his house with the purpose of hiding it from the IRS, the government failed to prove that he actually owned the gold and that it was therefore subject to a tax levied on him.  If the gold was not subject to a tax, then attempting to conceal it from the IRS was not a crime, even if the defendant made a mistake of law (not fact) by believing that it was.  In addition, while the defendant suspiciously quitclaimed his house to a newly created trust the government never proved how doing that would have affected his tax liability; there was no tax lien on his house at the time he transferred the house to a trust.

Stapleton: Affirming Alien-Smuggling Convictions Over Various Challenges

In United States v. Stapleton, No. 19-12708 (Newsom, Marcus, Covington) (July 12, 2022), the Court affirmed the defendant’s alien smuggling convictions.

First, the Court rejected the defendant’s argument that the government’s four-year delay in extraditing him violated his constitutional right to a speedy trial.  The district court did not clearly err in finding that the government acted reasonably and diligently (rather than negligently or in bad faith) given the onerous requirements for extradition from the Bahamas and Jamaica, and that the 33 aliens involved in the case had scattered.  And the government acted once it learned that the defendant planned to travel to Germany, a country with less demanding extradition requirements.  Because the reason for delay did not weigh heavily against the defendant, and he did not argue actual prejudice, his claim failed.

Second, the Court held that the indictment was neither multiplicitous nor insufficiently specific.  While two counts charged a violation of the same statute, they charged two separate alien-smuggling conspiracies rather than one.  And while it charged three immigration-related offenses for the same conduct, they each required proof of different elements, thus satisfying the Blockburger test.  Finally, the indictment was not required to specifically identify the alleged co-conspirators.  And it did not need to specify a principal whom he aided and abetted because he was charged with committing the substantive offenses himself.

Third, the district court did not plainly erred by admitting evidence of the defendant’s abuse of migrant women and of an uncharged alien-smuggling conspiracy.  The former was probative of his intent to smuggle migrants into the United States, which he placed at issue.  And the latter was probative of his modus operandi, and also to refute his trial defense that he did not intend to commit any crimes.

Fourth, the evidence was sufficient to convict him of knowingly aiding the entry of an inadmissible alien who had been convicted of an aggravated felony.  The evidence was sufficient for a jury to conclude that the alien was in fact the same person who had been convicted of an aggravated felony.

Fifth, the district court did not clearly err in imposing two sentencing enhancements.  As to an enhancement for inflicting serious bodily injury, the court was entitled to credit the testimony of the victim, even though she had illegally entered the country and had a pending petition to remain.  As to an enhancement for possession of a firearm in relation to his offenses, that conduct was part of the “relevant conduct,” even though it occurred during an uncharged operation, because it was part of the same common scheme or plan sharing a similar modus operandi.

Cohen: Unauthorized, Unlicensed Driver Had Fourth Amendment Standing, But Inventory Search Complied with Impound Procedures

In United States v. Cohen, No. 21-10741 (Wilson, Branch, Tjoflat) (July 6, 2022), the Court affirmed the denial of a motion to suppress.

The Court held that Cohen had Fourth Amendment to standing to challenge the search of the rental car he was driving, even though he was not an authorized driver of the rental car and had a suspended license.  In Byrd, the Supreme Court held that standing is not defeated merely because the driver was not listed on the rental agreement.  The Eleventh Circuit rejected the reasoning of the Second Circuit, and agreed with the Eighth Circuit, that being an unlicensed driver does not defeat a reasonable expectation of privacy because it is not comparable to wrongful presence in the car.  And the Court emphasized that the Cohen did not interfere with the authorized renter’s valid possessory interest in the car because had the renter’s permission to use the car.  However, the Court ultimately held that the inventory search of the car complied with the city’s impoundment procedures, and the Court therefore upheld the denial of the motion to suppress.

Riolo: Affirming Denial of § 2255 Motion Raising IAC

In Riolo v. United States, No. 20-12206 (June 29, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the denial of Mr. Riolo's 28 U.S.C. § 2255 motion to vacate his 293-month prison sentence and convictions.    

Mr. Riolo argued that his trial counsel provided ineffective assistance of counsel because she told him that if he pleaded guilty to five counts of mail fraud, he would serve no more than 10 years in prison because of a deal she had worked out with the government.  His trial counsel also advised him that his sentencing range under the Guidelines was 97-121 months' imprisonment because he had an offense level of 30 and a criminal history category of I.  He argued that he pleaded guilty based upon those representations when he otherwise would have proceeded to trial.  

After an evidentiary hearing, the district court found that the trial counsel never represented to Mr. Riolo that she had a deal with the government about his guideline range and that she had properly advised him that the district court would ultimately determine his guideline range for itself.  On appeal, Mr. Riolo argued that the district court's factual findings were clearly erroneous, and that, even putting aside the disputed facts, the fact that his trial counsel underestimated his guideline range by more than 100 months alone constituted ineffective assistance of counsel.  

The Court found no clear error in the district court's findings, and under those facts, no ineffective assistance of counsel.  The Court also reasoned that though trial counsel's estimated guideline range was "far off the mark--by more than 100 months," "experienced attorneys make mistakes."  That is, ineffective assistance of counsel claims are fact-bound, and here, the factual record demonstrated that trial counsel's miscalculation was not the product of deficient performance.  The Court chose not to address the Fifth Circuit's opinion in United States v. Herrera, wherein the Fifth Circuit remanded for an evidentiary hearing, noting that a movant may have a potential ineffective assistance of counsel claim where an attorney gives incorrect advice regarding exposure under the Guidelines.   

Judge Jordan concurred in the Court's opinion, but wrote separately to point out that a majority of the Court's sister circuits had held that significant errors in advice about sentencing exposure can constitute deficient performance.  He noted that while the Court had avoided the issue here, it would have to confront the issue at some point.  

Jackson: Court Must Apply Version of CSA Schedules in Place When Defendant Committed Instant Federal Offense; and Fla. Stat. 893.13 Cocaine Conviction Overbroad Because of Inclusion of Ioflupane

In United States v. Jackson, No. 21-13963 (June 10, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court vacated Mr. Jackson's ACCA-enhanced sentence and remanded for resentencing without the ACCA sentence enhancement.  

In this appeal, the Court considered which version of the Controlled Substance Act Schedules incorporated into ACCA’s definition of “serious drug offense” applies when a defendant is convicted of being a felon in possession of a firearm: the version in effect at the time of the defendant’s federal firearm-possession violation (for which he is being sentenced), or the ones in effect when he was convicted of his predicate state crimes that we are evaluating to see whether they satisfy ACCA’s definition of “serious drug offense.”

The Court held that due-process fair-notice considerations require the application of the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced.  

With that in mind, the Court found that Mr. Jackson's 1998 and 2004 cocaine-related convictions under Fla. Stat. § 893.13 did not qualify as "serious drug offense[s]" because they encompassed the sale of, or possession with intent to distribute, ioflupane, which was not a "controlled substance" for purposes of the "serious drug offense" definition in the ACCA at the time of Mr. Jackson's federal firearms offense.  Ioflupane was removed from the federal drug Schedules in September 2015 because of its value in potentially diagnosing Parkinson's Disease.  Florida, however, did not remove ioflupane from its drug schedules until July 2017.  

The Court further noted that prior precedents in Smith (2014), Smith (2020), Shular, and McNeill did not preclude relief here.  It noted that the question of which version of the Controlled Substance Act's drug Schedules governed under the ACCA's definition of "serious drug offense" was "not even a twinkle in [the Court's] eyes or in those of the Supreme Court in the Smith cases and in Shular."  That is, where a court has never addressed an issue, and had at most assumed the issue, the court is free to address the issue on the merits in a later case presenting it.  As for McNeill, it only answers the backward-looking question of what the defendant's previous state conviction was.  It does not the question presented here.  

  

Stines: Lower Base Offense Level for Exporting Weapons Does Not Apply Where There Are More Than Two Weapons Parts or Components

In United States v. Stines, No. 20-11035 (May 31, 2022) (Wilson, Luck, Lagoa), the Court affirmed the defendant’s sentence for unlawfully exporting weapons.

Ordinarily, under U.S.S.G. 2M5.2(a), the unlawful exportation of weapons carries a base offense level of 26, but there is an exception carrying a base offense level of 14 where the offense involved only non-fully automatic small arms, and the number of weapons did not exceed two.  In this case, the defendant exported 23 weapons parts that could be converted into only two fully assembled weapons.  The Court agreed that the exception could apply to weapons parts, not just fully assembled weapons.  However, the Court held that the exception did not apply in this case because the number of parts could service more than two weapons.  Although this reading would mean that exporting three triggers alone would produce a higher base offense level than exporting two fully assembled firearms, that did not create an absurd result.  The Court also held that it lacked jurisdiction to consider the district court’s refusal to grant a downward departure under the Guidelines.

Judge Luck concurred, opining that the exception did not apply to gun parts because those were not “small arms.”  Judge Lagoa authored a concurrence disagreeing on that point.