Kent: Affirming Admission at Trial as Non-Hearsay a LEO's Statement Recounting Witness Statements that Implicated Defendant

In United States v. Kent, No. 22-13068 (Feb. 26, 2024 (Wilson, Jill Pryor, Brasher), the Court affirmed Mr. Kent's conviction. 

Mr. Kent was charged with RICO conspiracy and five substantive crimes, including an attempted murder.  The government alleged that the gang Mr. Kent was allegedly a member of murdered a former gang member--Rhodes--for cooperating with the police's investigation into the attempted murder of another individual--Muhammad. Specifically, the government’s theory was that Mr. Kent and other alleged gang members believed that Rhodes told the police that Mr. Kent had attempted to murder Muhammad and, then, murdered Rhodes for that reason.  To support this theory, the government introduced an investigator’s testimony from a preliminary hearing in a related case, which identified Rhodes as cooperating with law enforcement to implicate Mr. Kent in the attempted murder of Muhammad.  By offering the testimony, the government sought to establish that other gang members present at the hearing learned of Rhodes’s apparent cooperation and murdered him because of it, i.e., the government offered the out-of-court statements for the effect they had on the listener.    

Mr. Kent challenged the admission of the above testimony, arguing it was hearsay and admitted in violation of the Confrontation Clause.  The Court disagreed, finding the testimony admissible as nonhearsay, offered for the effect it had on the listeners and not for the truth of the matter asserted.  The Court further found the testimony relevant for a non-hearsay purpose, and found that the district court took sufficient steps to ensure that the jury did not consider the out-of-court statements as substantive evidence of guilt.   

Rudolph: Holding that § 2255 Motions are Vehicles for Attacking Sentences, Not Convictions

In Rudolph v. United States, No. 21-12828 (Feb. 12, 2024) (Wilson, Grant, Brasher), the Court found Mr. Rudolph's attempts to collaterally attack his sentences barred by his plea agreement.  

In order to avoid the death penalty for setting off a series of bombs (some during the Olympics in Atlanta), Mr. Rudolph pleaded guilty to six federal arson charges and four counts of use of a destructive device during and in relation to a crime of violence.  As part of his plea deal, he waived his right to appeal his conviction and sentence, as well as his right to collaterally attack his sentence in any post-conviction proceeding, including under 18 U.S.C. § 2255.  His waiver specifically stated: "In consideration of the Government’s recommended disposition, the defendant voluntarily and expressly waives, to the maximum extent permitted by federal law, the right to appeal his conviction and sentence in this case, and the right to collaterally attack his sentence in any post-conviction proceeding, including motions brought under 28 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground."

Post-Davis, however, Mr. Rudolph filed a § 2255 motion to vacate his § 924(c) convictions and sentences because his arson offenses no longer qualified as crimes of violence.  The district court denied the motion, finding it barred by the plea agreement because "it is not possible to collaterally attack only a conviction under 28 U.S.C. § 2255, which provides an avenue to attack the defendant’s sentence."

On appeal, this Court agreed with the district court, holding that § 2255 is a vehicle for attacking sentences, not convictions, and therefore finding Mr. Rudolph's motion barred by his plea agreement.  The Court noted: "Section 2255 fundamentally remains a procedure for prisoners to challenge their sentences. That is no less true when the method of attack is to show that a conviction was illegal. Even then, a motion under § 2255 is a collateral attack on the proceeding or process of detention."  

The Court also refused to adopt a miscarriage-of-justice exception to the general rule that appeal waivers are enforceable, splitting from the First and Eighth Circuits.  And even so, the Court noted that Mr. Rudolph was not "actually innocent" of the § 924(c) convictions because actual innocence means factual innocence--that is, it is more likely than not that no reasonable juror would have convicted him. 

Finally, the Court obliquely hinted that there may be other mechanisms by which Mr. Rudolph could collaterally challenge his convictions--such as maybe remedies available at common law--but failed to specifically delineate what those mechanisms were.              

Sanfilippo: Dismissing Appeal Raising Potentially Viable SOL Defense as Waived by Guilty Plea

In United States v. Sanfilippo, No. 22-11175 (Feb. 8, 2024) (Jordan, Lagoa, Marcus), the Court dismissed Mr. Sanfilippo's appeal.

Mr. Sanfilippo appealed his conviction for wire fraud pursuant to a guilty plea.  He argued that the district court erred in denying his motion to dismiss the indictment against him because it was issued after the expiration of the federal statute of limitations under 18 U.S.C. § 3282.  More specifically, he argued that the district court misinterpreted § 3282(a), and thus incorrectly concluded that the government indicted him within the statute of limitations by filing an information.  His argument specifically relied on a case that was pending before this Court at the time of his plea--United States v. B.G.G.  At the change of plea hearing, the government noted that if it turned out that the government was in error by filing an information within the statute of limitations, Mr. Sanfilippo "would be exonerated at that point, just as a matter of fundamental fairness." The government further noted that what it would do was "allow [Sanfilippo] to withdraw his guilty plea, and then [the government] would have to dismiss the charges, because the statute of limitations had run.  Sanfilippo would be able to file a motion to dismiss based on the statute of limitations again, in which case it would be granted at that point."  

The Court held, however, that it could not resolve the statute of limitations issue raised because Mr. Sanfilippo entered an unconditional guilty plea and, therefore, waived his ability to appeal the district court's denial of his motion to dismiss the indictment. The Court reiterated that a defendant’s unconditional plea of guilty, made knowingly, voluntarily, and with the benefit of competent counsel, waives all non-jurisdictional defects in that defendant’s court proceedings.  As such, if Mr. Sanfilippo wished to preserve appellate review of the district court's denial of his motion to dismiss the indictment while pleading guilty, he should have entered into a conditional plea in accordance with Fed. R. Crim. P. 11(a)(2).  The government's statements at the change of plea hearing were insufficient to demonstrate its (and the court's) direct assent to a conditional plea.   

Judge Jordan concurred in full, but wrote separately to alert the parties that their agreement to allow Mr. Sanfilippo to withdraw his guilty plea if the Court ultimately rules against the government on the statute of limitations issue— something the district court seemed to countenance—will require traversing some tricky jurisdictional terrain.  This is so because a district court has limited jurisdiction to set aside or modify a defendant's conviction or sentence, and it does not possess inherent authority to take such action.  Judge Jordan expressed confusion over how it is that the parties believed that they would be able, months or years from now, to go back to the district court and request that Mr. Sanfilippo be allowed to withdraw his guilty plea in a closed case.  He noted the possibility of Mr. Sanfilippo seeking collateral relief, which has its own limitations period.        

Daniels: Affirming Hobbs Act Robbery Convictions and Sentence, With One Judge Noting Pattern Instruction on Identification Needs Updating

In United States v. Daniels, No. 22-10408 (Jan. 24, 2024) (Jordan, Lagoa, Marcus), the Court affirmed Mr. Daniels's convictions and sentence. 

Mr. Daniels was convicted of ten counts of Hobbs Act robbery and sentenced to 180 months' imprisonment.  

On appeal, he first argued that the district court erred by rejecting his proposed jury instruction on eyewitness identifications, taken from the Third Circuit's model instructions.  The Court disagreed, finding that the instructions given substantially covered Mr. Daniels's proposed instruction on eyewitness identifications.   

He next argued that cumulative evidentiary errors prejudiced his right to a fair trial.  Applying plain error review to the claims of evidentiary error, the Court disagreed.

He also argued that the jury lacked sufficient evidence to convict him under Count 7 of the superseding indictment.  First, he argued that no reasonable jury could find beyond a reasonable doubt that the robber in Count 7 threatened the victim with force or violence—a necessary condition for Hobbs Act robbery. Second, he argued that no reasonable jury could find, beyond a reasonable doubt, that he committed the robbery alleged in Count 7.  The Court rejected both arguments.   

Finally, he argued that his sentence was substantively unreasonable because the district court accounted for Mr. Daniels's Count 7 conviction.  The Court found this argument failed because it rested only on the assumption that there was insufficient evidence to convict him for the robbery alleged in Count 7.

Judge Jordan concurred in full, but wrote separately to urge the Eleventh Circuit Committee on Pattern Jury Instructions to revise the pattern instruction on identification to allow juries to consider, in appropriate cases, that the witness and the person identified are of different races.  He noted that the Eleventh Circuit's pattern instruction on identification has not been substantively updated since 1985, almost 40 years ago.  In his view, it is time for the Court to take account of the abundant literature on cross-racial identification and revise its instruction on eyewitness identification to permit juries to consider, in appropriate cases, that the witness and the person identified were of different races.       

Pugh: Finding 18 U.S.C. § 231(a)(3) Facially Constitutional

In United States v. Pugh, No. 21-13136 (Jan. 18, 2024) (Lagoa, Brasher, Boulee (N.D. Ga.)), the Court affirmed Ms. Pugh's conviction.  

The Court addressed an issue of first impression regarding the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce.  It was alleged that during a protest in Mobile, Alabama, Ms. Pugh shattered the window of a police car that was blocking protestors from walking on the interstate.  Ms. Pugh moved to dismiss the indictment, arguing that § 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress’s power to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of speech and expressive conduct, activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment’s Due Process Clause. 

With regard to Ms. Pugh's first argument--that § 231(a)(3) is unconstitutional because it exceeds Congress's power under the Commerce Clause--the Court disagreed because the statute's jurisdictional element--the requirement that the civil disorder “in any way or degree obstruct[], delay[], or adversely affect[] commerce”--is enough to limit the statute’s scope to constitutional applications.  If a criminal statute contains a jurisdictional element that limits the statute to constitutional applications, that jurisdictional element immunizes the statute from a facial constitutional attack.  Ms. Pugh had argued that the criminal act committed was too removed from any connection to commerce, but the Court, while acknowledging that argument to be a strong one, found that the jurisdictional element of interstate commerce need not link directly to the criminalized act itself as long as the object of the criminal act is sufficiently connected to interstate commerce.     

With regard to Ms. Pugh's second argument--that §231(a)(3) violates the First Amendment because it broadly prohibits protected speech and expressive conduct--the Court held that the statute does not affect must speech at all.  That is, although “interfere,” by itself, could include speech, it is best read in § 231(a)(3) alongside “obstruct” and “impede” as prohibiting someone from hindering a law enforcement officer or fireman with more than mere words.  Here, it was merely hypothetical that § 231(a)(3) could be enforced against speech.  And the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.  The Court note that it need not decide today whether the statute might prohibit certain kinds of expressive activities that have the effect of blocking police officers from quieting a riot—such as directing others to riot.   

With regard to Ms. Pugh's third argument--that the statute on its face is a content-based restriction of activities protected by the First Amendment--the Court held that § 231(a)(3) is not a content-based regulation of speech.  If it affects speech at all, § 231(a)(3) is content-neutral.  Because it applies to “any act to obstruct, impede, or interfere with any fireman or law enforcement officer” performing official duties “incident to and during the commission of a civil disorder” affecting commerce or a federally protected function, it does not draw distinctions based on the message conveyed by the relevant act.  

Finally, with regard to Ms. Pugh's fourth argument--that § 231(a)(3) violates the Fifth Amendment’s Due Process Clause because it is vague on its face--the Court disagreed.  Here, because Ms. Pugh allegedly engaged in conduct clearly proscribed by the statute, she cannot complain of the vagueness of the law as applied to the conduct of others.     

Gatlin: Reversing Witness Tampering Conviction

In United States v. Gatlin, No. 20-14149 (Jan. 5, 2024) (Jordan, Luck, Lagoa), the Court reversed Mr. Gatlin's conviction and sentence as to witness tampering, but affirmed his sex trafficking of a minor and production of child pornography convictions and sentences, as well as the restitution order.  

Mr. Gatlin appealed his convictions and sentences for sex trafficking of a minor (Count 1), production of child pornography (Count 2), and witness tampering (Count 3).    

On appeal, Mr. Gatlin argued first that the evidence was insufficient as to all counts.  The Court disagreed with regard to Count 1, finding the evidence sufficient.  With regard to Count 2--production of child pornography--the Court disagreed with Mr. Gatlin's argument that § 2251 requires a specific intent to produce child pornography and that child pornography produced incidentally to a sexual encounter is insufficient.  The Court held that specific intent does not require that the defendant be single-minded in his purpose--it was enough for the government to show that making explicit photographs was a purpose for engaging in sexual activity with the victim.  With regard to Count 3--witness tampering--the Court agreed with Mr. Gatlin that the evidence was insufficient as to intent because he asked the victim to lie only to his public defender, not a federal officer.  The Court concluded that the evidence presented by the government established only a remote, outlandish, or simply hypothetical possibility that the victim's recantation statements would reach federal officers.  As such, no rational trier of fact could have found the federal nexus element to be met.  

Mr. Gatlin next argued that the court's direction to the jury to continue deliberating after returning a verdict as to Count 1 was improper.  With regard to Count 1, the court instructed the jurors that to find Mr. Gatlin guilty of sex trafficking, they had to find that he either acted (1) by means of force, threats of force, or coercion; or (2) in reckless disregard of the fact that the victim was a minor.  The jury received a general verdict form a well as an interrogatory verdict form, which first asked if Mr. Gatlin was guilty and, if so, whether it was by use of force or by reckless disregard for the fact that the victim was a minor.  The jury selected "guilty," but did not find either of the conditions necessary to trigger liability.  As a result, defense counsel asked the district court to direct a verdict of not guilty as to Count 1, which the court declined.  Instead, reasoning that the jury had returned an inconsistent verdict and the verdict had not been discharged, the district court clarified the instructions for the jury and directed them to continue deliberating.  After further deliberations, the jury found Mr. Gatlin guilty under the second condition.

The Court disagreed with Mr. Gatlin's arguments.  First, the Court held that the district court's actions did not run afoul of the Supreme Court's precedent on inconsistent verdicts in United States v. Powell, finding that the issue here was distinct because the inconsistency existed as to just one count (not between counts).  Instead, the Court analogized to a situation addressed by then-Judge Gorsuch in United States v. Shippley, noting that directing the jury to continue deliberations under these circumstances was not error.  Here, the district court had not accepted the jury's verdict and, as a result, the verdict was not final.  Additionally, asking the court to enter a directed verdict of not guilty would have required the court to overlook the jury's unanimous finding of guilt as to Count 1 on the general verdict form.  And the inverse--simply accepting the jury's general finding of guilt--was equally untenable.  It was metaphysically impossible to give effect to the jury's verdict.  The Court noted in a footnote, however, that it was not faced with a situation where the district court accepted an internally inconsistent verdict, which, according to the Court's sister circuits, would have triggered jeopardy and required a judgment of acquittal. 

Second, the Court found that the district court's decision was not plainly erroneous under the 5th (due process and double jeopardy) and 6th Amendments (right to a fair trial).  The Court found no plain error relating to double jeopardy because the verdict was not final.  The Court also found no plain error in the district court's giving of further instruction to the jury, finding them not to be impermissibly coercive.

Finally, the Court affirmed Mr. Gatlin's sentence.  Mr. Gatlin first challenged the custody, care, or supervisory control enhancement.  The Court found the enhancement appropriate, finding “custody, care, or supervisory control" to be plain, i.e., the plain meaning of stating that a child is in a person’s care is simply to say the person is responsible for looking after the child’s wellbeing.  Here, Mr. Gatlin occupied a guardian-like position over the victim.  Mr. Gatlin next challenged the repeat-offender enhancement.  The Court disagreed.  Third, the Court found Mr. Gatlin's life sentence to be reasonable.  Fourth, the Court upheld the restitution order, finding that it did not violate Mr. Gatlin's 6th Amendment rights.  

Judge Jordan concurred in part and dissented in part.  With regard to the inconsistent jury verdict issue, Judge Jordan emphasized that due to the district court’s non-acceptance of the inconsistent jury verdict on Count 1 the Court was not faced with a situation where a final jury verdict contains answers to special interrogatories that preclude a general finding of guilt.  Had the district court accepted the jury’s inconsistent verdict, he does not think Mr. Gatlin’s conviction on Count 1 could stand.

With regard to the production count, Judge Jordan dissented, believing the evidence to be insufficient to support a guilty verdict.  In his view, the evidence showed only that Mr. Gatlin took a single "live" photo during sexual intercourse with the victim, not that he had sexual intercourse with her for the purpose of producing child pornography.  He expressed a concern that in so affirming the conviction here, the Court was coming close to making § 2251(a) a strict liability statute.       

Judge Luck also concurred in part and dissented in part.  He would have affirmed Mr. Gatlin's witness tampering conviction, finding the evidence sufficient.           

Fey: Affirming Convictions for Drug Distribution and Killing a Witness

In United States v. Fey, No. 22-11373 (Dec. 28, 2023) (William Pryor, Rosenbaum, Abudu), the Court affirmed the defendants’ convictions for distributing meth and for conspiring to and actually killing a cooperating witness by administering a lethal amount of meth and fentanyl.

First, the Court found no reversible Rule 404(b) error. At trial, the government introduced testimony that, years after the murder, one of the defendants solicited someone to murder someone else who witnessed the murder. The Court held that this evidence was extrinsic (not intrinsic) and thus fell under Rule 404(b), as that conversation occurred years after the murder conspiracy was completed. And the Court held that the government failed to provide the requisite notice of this testimony before trial under Rule 404(b). However, the Court determined that this error was harmless because the government’s pretrial brief and jury instructions, filed months in advance of trial, put the defense on notice of this testimony. In addition, the evidence was supported by sufficient evidence and did not violate Rule 403 because, although testimony that Fey sought to have a witness killed was “not flattering,” it was not prejudicial than probative.

Second, the Court did not commit plain error by failing to instruct the jury on spoliation of evidence. The district court declined to instruct the jury that officers negligently allowed the victim’s tissue samples to be destroyed before they could be examined. The Court found it unnecessary to decide whether a spoliation instruction may ever be given in a criminal (as opposed to a civil) case because, even if it could, it was required only where the spoliation was based on bad faith, not mere negligence. And there was no binding precedent on this point, which was required to satisfy plain error.

Finally, at trial the defense objected to an officer’s testimony that another individual died from a drug overdose. The Court held that, even if eliciting that testimony was improper, it was harmless because there was no suggestion that the defendants played a role in the individual’s overdose death.

Hurtado: Affirming MDLEA Convictions Over Jurisdiction, Fourth Amendment, and Delay Challenges

In United States v. Hurtado, No. 21-12702 (Dec. 20, 2023) (Grant, Tjoflat, and Ed Carnes), the Court affirmed the defendants’ MDLEA convictions. Judge Tjoflat wrote the opinion for the Court, with the exception of one point, which the other two panel members rejected in a concurrence.

First, the Court held that there was jurisdiction over the vessel because Cameroon properly consented to U.S. jurisdiction, which was proven conclusively by the certificate of the Secretary of State. In addition, Cameroon subsequently waived jurisdiction after the indictment, which was not too late. And even though Cameroon had deleted the vessel from its registry by the time it consented, that would render the vessel stateless and subject to U.S. jurisdiction anyway.

Second, the Court upheld the denial of a motion to suppress. As an initial matter, there was the question whether the Fourth Amendment applies to a foreign national in international waters. Although the Supreme Court’s decision in Verdugo-Urquidez and the Eleventh Circuit’s decision in Cabezas-Montano held that it did not, Judge Tjoflat interpreted the Eleventh Circuit’s decision in Tinoco to hold that it did, and he believed that holding was binding. Judge Carnes and Grant disagreed with that interpretation of Tinoco. Nonetheless, the panel agreed that there was no Fourth Amendment violation anyway because there was reasonable suspicion to believe that the vessel was engaged in illegal activity. Reasonable suspicion is based on the totality of the circumstances and can exist even if each circumstance is independently innocuous.

Finally, the Court rejected an unnecessary delay argument under due process, as well as Rules 5 and 48. There was no due process violation because the defendant could not show that any delay was a deliberate act by the government to obtain a tactical advantage. And there was no violation of the Rules either because all of the factors but one cut against him, and the delay had nothing to do with extracting a confession. Finally, the Court found no outrageous government conduct. (“Acosta Hurtado has not found Sasquatch, or—more appropriately here—the Kraken.”).

Judge Carnes, joined by Judge Grant, concurred to explain that, contrary to Judge Tjoflat’s opinion, the Eleventh Circuit’s decision in Tinoco had not held that the Fourth Amendment applies to foreign nations outside the U.S., a holding that would be contrary to Supreme Court precedent. At best, it assumed without deciding that the Fourth Amendment applied, and so that assumption was dicta. Judge Carnes catalogued many of the Court’s cases distinguishing between holding and dicta. (“Our circuit law is rock-solid and clear as a mountain stream that the only statements in, or parts of, an opinion that are holdings are those that are necessary to the result of the decision that the opinion accompanies.”)

Sotis: Affirming Convictions and Sentence for Illegal Exporting Scuba Equipment to Libya

In United States v. Sotis, No. 22-10256 (Dec. 20, 2023) (William Pryor, Marcus, Mizelle (M.D. Fla.)), the Court affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

First, the Court held that the evidence was sufficient that he acted willfully and that he acted in conspiracy with another person. The Court also held that, even if the evidence at trial varied from the facts alleged in the indictment about the type of equipment exported, there was no prejudice because he conceded at trial that the equipment required a license to export and no license was obtained.

Second, the Court rejected the argument that an expert witness and a lay witness invaded the province of the jury by opining on the ultimate issue. The expert’s testimony that the equipment required a license did not violate Rule 704(b) because it did not opine on the defendant’s mental statute, and the defendant conceded that point. The lay witness’s testimony that he had never seen a case with this level of willfulness was improper because it went to the defendant’s state of mind, but it did not affect the defendant’s substantial rights given the overwhelming evidence of willfulness.

Finally, the Court affirmed the 57-month sentence. The Court agreed with the defendant that the district incorrectly used U.S.S.G. 2M5.2(a)(1) rather than 2M5.1(a)(1) to calculate the offense level. However, that error was harmless because it resulted in an identical guideline range. And the Court rejected the defendant’s argument that his sentence was substantively unreasonable on the ground that it was disparate from other cases, as the defendants in those cases were not similarly situated (e.g., some pled guilty, received a longer sentence, or were sentenced under an older version of the Guidelines).

McCoy: Affirming Section 404 Denial Based on Pre-Apprendi Drug-Quantity Findings

In United States v. McCoy, No. 21-13838 (Dec. 14, 2023) (Jordan, Newsom, Grimberg (N.D. Ala.)), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

The Court re-affirmed its prior precedent holding that a defendant is bound by pre-Apprendi, judge-made drug-quantity findings for purposes of Section 404. The Court further rejected the defendant’s argument that this precedent violated due process on the theory that, at the time of his sentencing, he had no notice that he needed to object to the drug-quantity finding beyond 50 grams of crack. The Court explained that due process did not require defendants to receive notice about hypothetical, future ameliorative legislation that is then unknown.

Judge Grimberg concurred, sympathizing with the defendant’s due process argument and wondering if defendants must now preserve arguments based on future legislation.

Kincherlow: Affirming Enticement Conviction under 2422(b)

In United States v. Kincherlow, No. 22-11980 (Dec. 13, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed the defendant’s conviction for enticing a minor under 18 U.S.C. 2422(b).

First, the Court held that the evidence was sufficient. The Court rejected the defendant’s argument that he did not persuade, induce, coerce, or entice the minor to engage in prostitution on the theory that she was already engaged in prostitution. And his conduct went beyond merely offering her an opportunity to engage in prostitution because he facilitated and instructed her how to do so.

Second, the Court held that binding precedent foreclosed the argument that the district court erred by instructing the jury that “induce” meant to “cause.”

Finally, the Court held that any variance between the indictment and proof at trial did not affect his substantial rights because the statute and proposed/pattern instructions listed all of the verbs (persuade, induce, entice, coerce) in the disjunctive, affording him sufficient notice of the charges. And, in any event, even where the indictment charges verbs in the conjunctive, the government may still prove one or more of them in the disjunctive where the statute lists them in the disjunctive.

Judge Carnes issued a concurrence adding that, in addition to the statute and jury instructions, circuit precedent put the defendant on notice that he could be convicted by proof of any of the disjunctive means.

Duldulao: Applying Ruan and Vacating 21 U.S.C. § 841 Convictions

In United States v. Duldulao, No. 20-13973 (Nov. 29, 2023) (Jordan, Jill Pryor, Tjoflat), the Court affirmed in part, vacated in part, and remanded in part for a new trial. 

This appeal was on remand from the United States Supreme Court in light of Ruan v. United States, 142 S. Ct. 2370 (2022).   It concerns the criminal convictions of two doctors--Duldulao and Santos--who allegedly participated in a "pill mill"--a pain management clinic that prescribed controlled substances regardless of medical need.  Both doctors served as medical directors of a clinic in Tampa, Florida, and were convicted of conspiracy to distribute and dispense controlled substances not for a legitimate medical purpose and not in the usual course of professional practice, in violation of 21 U.S.C. § 846.  Santos was also convicted of multiple substantive counts of distributing controlled substances not for a legitimate medical purpose and outside the usual course of professional practice, in violation of 21 U.S.C. § 841.     

In Ruan, the Supreme Court held that the scienter provision of 21 U.S.C. § 841(a) (“knowingly or intentionally”) applies to both prongs of the authorization exception--not for a legitimate medical purpose and outside the usual course of professional practice. So, to establish criminal liability under § 841 post-Ruan, it is not enough for the government to prove that a defendant acted outside the usual course of professional practice by violating an objective standard of care.  Instead, the government must now prove that the defendant subjectively knew he was acting outside the usual course of professional practice or intended to.   

On remand from the Supreme Court, both Duldulao and Santos challenged the jury instructions as to both the § 846 and § 841 counts.  As to the § 846 jury instruction challenge, the Court found itself bound by its previous opinion in Ruan when it was remanded by the Supreme Court.  On remand in Ruan, the Court reviewed a district court's § 846 instruction and held that the conspiracy instructions conveyed the adequate mens rea because they already required the jury to find that the defendant acted with subjective knowledge.  The Court found the same to be true of the instructions here, and therefore, affirmed the § 846 convictions.   

As to the § 841 jury instruction, the Court refused the government's invitation to find invited error, and instead found plain error in the instruction because it inadequately conveyed the required mens rea to authorize conviction under § 841(a).  The Court also held that the error affected Santos's substantial rights because the jury could have rested its convictions on an impermissible theory of liability.  Finally, the Court held that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.  As a result, the Court vacated Santos's § 841 convictions and his sentence.     

Duldulao and Santos also challenged the sufficiency of the evidence with regard to the § 846 conviction, which the Court again rejected.  The Court also rejected Santos's challenge to the expert medical testimony presented by the government.     

Steiger: Granting Rehearing En Banc

In United States v. Steiger, No. 22-10742 (Nov. 27, 2023), the Court sua sponte ordered that the appeal be reheard en banc.  

The panel, in vacating Mr. Steiger's sentence, found itself bound by United States v. Parks, 823 F.3d 990 (11th Cir. 2016).  Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider Parks, which requires a per se rule of reversal for  § 3553(c)(2) errors even when a defendant fails to object to the explanation of his sentence before the district court.  In his view,  § 3553(c) challenges should be treated like all other procedural sentencing challenges, which are reviewed for plain error when a defendant fails to object in the district court.  

Perez: While § 3147-enhanced Sentence Can Exceed Statutory Maximum for Underlying Offense, Issue of Whether Felony Offense Committed While on Pretrial Release Must be Submitted to Jury

In United States v. Perez, No. 22-10267 (Nov. 14, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed Mr. Perez's sentence.  

While on bond pending trial, Mr. Perez was convicted of two felonies--violating 18 U.S.C. §§ 922(n) and 922(j).  The government informed him that, pursuant to § 18 U.S.C. § 3147, it was going to seek a ten-year consecutive sentence.  In relevant part, § 3147 provides that, if a person commits a felony offense while on pretrial release, he “shall be sentenced, in addition to the sentence prescribed for the offense, to . . . a term of imprisonment of not more than ten years,” with the additional term to be “consecutive to any other sentence of imprisonment.”  

Here, the § 922(n) conviction carried a statutory maximum sentence of 5 years in prison, while the § 922(j) conviction carried a statutory maximum sentence of 10 years in prison.  Run consecutively, that resulted in a total maximum sentence of 15 years, notwithstanding the consecutive 10 years' tacked on pursuant to § 3147.  Mr. Perez objected to the 10-year consecutive sentence, asserting that there was an Apprendi error because (a) the 10-year sentence exceeded the maximum sentences permitted for his underlying offenses of conviction, and (b) the jury never found beyond a reasonable doubt that he committed a felony offense while on pretrial release (the necessary fact for the § 3147 consecutive sentence).  In his view, § 3147 only allows a court to increase (i.e., enhance) a sentence within the statutory maximum for the underlying offense(s) of conviction.  

The Court held that a sentence imposed pursuant to § 3147 can exceed the maximum term prescribed for the underlying offense(s) of conviction.  But in such a circumstance the issue of whether the person committed a felony offense while on pretrial release must be submitted to a jury and proven beyond a reasonable doubt pursuant to Apprendi and its progeny.  In so holding, the Court joined the Third and Second Circuits.  

The Court, however, affirmed Mr. Perez's sentence, noting that an Apprendi violation does not automatically lead to reversal.  Here, the error was harmless beyond a reasonable doubt because, on numerous occasions throughout the trial and appeal, Mr. Perez did not dispute that he was on pretrial release at the time of the §§ 922(n) and (j) offenses.     

McCall: Officers Relied Upon iCloud Search Warrant in Good Faith

In United States v. McCall, No. 21-13092 (Oct. 27, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the denial of Mr. McCall's motion to suppress.  

The Court considered how the exclusionary rule's good faith exception applies to the search of a cloud storage account.  The warrant in question--for Mr. McCall's iCloud account--permitted a search of almost all of the account's data, with no time limitation.  In affirming the denial of the suppression motion, the Court noted that although Fourth Amendment standards are largely settled, their application to developing areas of technology are not, and law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances.  Here, though the government conceded that the iCloud warrant fell short in certain respects, reasonable officers could have believed it to be valid.  

Of note, with regard to a warrant's particularity, the Court noted that the preferred method of limiting the scope of a search warrant for a cloud account will usually be time-based.  In the Court's view, by narrowing a search to the data created or uploaded during a relevant time connected to the crime being investigated, officers can particularize their searches to avoid general rummaging. As a result, cloud or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim that they are the internet-era version of a general warrant.

Judge Rosenbaum concurred, writing separately to comment on the panel opinion's conclusion that "in the mine run of cases, . . . a time-based limitation will be both practical and protective of privacy interests."  In her view, particularity's guiding principle requires a warrant to be as specific as possible when it comes to identifying things to be searched, and that can't be accomplished "if we artificially determine beforehand that a single criterion--say, the inclusion of a time period in a warrant--means the warrant satisfies the particularity requirement."  That is, including a time period doesn't relieve a warrant from otherwise having to particularly describe the things to be searched and seized to the extent possible.  With regard to electronic data, she believes warrants should also describe the categories or evidence sought--for instance, photographs, communications, and records--and should identify what subject matter those categories of evidence must pertain to.  

Johnson v. Nocco: Whether 4A Precludes LEO From Asking Passenger To Identify Himself

In Johnson v. Nocco, No. 21-10670 (Oct. 2, 2023) (Wilson, Branch, Tjoflat), the Court, in a  § 1983 action, held that the officers involved were entitled to qualified immunity. 

In so holding, the Court addressed whether the Fourth Amendment precluded a law enforcement officer—who had stopped a vehicle for a traffic violation—from asking a passenger in the vehicle to identify himself absent a reasonable suspicion that the passenger has committed, is committing, or is likely to commit a criminal offense.  Relying on officer safety, the Court answered in the negative. 

Judge Branch concurred only in the judgment of the majority, noting that she would have started and stopped at the "clearly established" prong of the qualified-immunity analysis.  She would not have addressed the first prong--whether the official violated a constitutional right--as Judge Tjoflat did in his majority opinion.  

Judge Wilson dissented.  He found it to be clearly established that law enforcement officers cannot require, by threat of arrest, that an individual identify himself absent reasonable suspicion of wrongdoing.  With regard to officer safety, he noted that while traffic stops indeed pose unique risks to police officers, and those risks in turn may justify negligibly burdensome precautions, those precautions may not detour from the officer's mission.  In Judge Wilson's view, although the Supreme Court has identified specific risks inherent in traffic stops and has crafted targeted procedural remedies to address them, it has required more to be shown if officers want to justify anything beyond temporarily controlling the physical movements of passengers.  He concludes by noting that he "would go no further than to hold that in the context of a routine traffic stop, it is clear that general safety concerns do not justify officers requiring the names of passengers who are not suspected of any criminality."  He would "leave for another panel and a different record the question of whether safety concerns at traffic stops can ever reasonably justify such an intrusion."

Pate: En Banc Court Holds Former Civil Servant Not "Officer or Employee of the United States" Within Meaning of 18 U.S.C. §§ 1114 and 1521

In United States v. Pate, No. 20-10545 (Oct. 11, 2023), the en banc Court--in an opinion authored by Judge Newsom--vacated Mr. Pate's § 1521 convictions and remanded for resentencing.  

Mr. Pate filed liens against property owned by a number of people he thought wronged him, including a former Commissioner of the IRS and a former Secretary of the Treasury.  He was then charged with and convicted of violating 18 U.S.C. §  1521, which criminalizes the filing of retaliatory liens against the property of "an individual described in" 18 U.S.C. § 1114, which, in turn, refers to "any officer or employee of the United States."

The en banc Court considered whether a former civil servant counts as an "officer or employee of the United States," and answered in the negative.  Considering the ordinary meaning of the phrase "any officer or employee of the United States," the en banc Court determined that the phrase would not be understood by the average speaker of American English to include former officers or employees of the United States.      

Judge Rosenbaum, joined by Chief Judge William Pryor and Judge Newsom, concurred.  She wrote separately to underscore the problems with the government's argument of appealing to statutory purpose to expand the textually clear scope of criminal liability under §§ 1114 and 1521.  She noted that relying solely on congressional purpose collides with bedrock principles of due process and the separation of powers.  

Judge Brasher concurred in part, noting that the phrase "any officer of employee of the United States" may reasonably be interpreted--in the right context--to include former officers and employees.  

Judge Grant, joined by Judges Branch and Lagoa, dissented.  She wrote separately to emphasize the illogical consequences introduced by the majority's hypertechnical reading, and to put a finer point on why a comparison between this statute and two other provisions of Title 18 should not derail the Court from concluding that the best reading of § 1521 covers acts targeting both current and former federal officials.  

Judge Lagoa dissented, joined by Judges Branch and Grant.  In her view, a natural reading of § 1521, in full and in context, protects both current and former federal officers and employees who are retaliated against "on account of the performance of [their] official duties."  

 

Dunn: Affirming Denial of Motion to Dismiss Indictment

In United States v. Dunn, No. 22-11731 (Oct. 10, 2023) (Jordan, Rosenbaum, Hull), the Court affirmed the denial of Mr. Dunn's motion to dismiss his indictment.

Mr. Dunn was arrested on a criminal complaint at the start of the COVID-19 pandemic--on March 10, 2020--but was not formally indicted until December 1, 2020.  He argued that the district court erred in denying his motion to dismiss his indictment for failure to indict him within 30 days from his arrest--as required by the Speedy Trial Act.

The Court found that the pandemic-related continuances in 2020--that continued grand jury sessions five times in the ends of justice spanning March 26, 2020 to November 16, 2020--were not an abuse of discretion and were within the ends-of-justice exception to the Speedy Trial Act.    

Steiger: Vacating Sentence and Remanding for Resentencing

In United States v. Steiger, No. 22-10742 (Oct. 3, 2023) (William Pryor, Jill Pryor, Coogler (N.D. Ala.)), the Court vacated Mr. Steiger's sentence and remanded for resentencing. 

Mr. Steiger appealed his sentence of 20 years' imprisonment following the revocation of his probation.  The Guidelines recommended a sentence of 12 to 18 months imprisonment. 

The Court vacated and remanded for resentencing because the district court did not give any reason for why it was imposing an above-guideline sentence, as required by § 3553(c)(2) and United States v. Parks, 823 F.3d 990 (11th Cir. 2016).  The Court reiterated that it had adopted a per se rule of reversal for   §3553(c)(2) errors.  Thus, because the district court's statements at sentencing were not sufficiently specific to allow the Court to understand why it imposed an above-guideline sentence, the Court vacated and remanded.  The Court rejected the government's suggestion that it look at the context and record from the entire revocation proceeding to glean the reasoning for the sentence imposed.  

Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider Parks, which requires a per se rule of reversal for  § 3553(c)(2) errors even when a defendant fails to object to the explanation of his sentence before the district court.  In his view,  § 3553(c) challenges should be treated like all other procedural sentencing challenges, which are reviewed for plain error when a defendant fails to object in the district court.  

Robinson: Vacating Contempt Conviction for Violating a Civil Injunction

In United States v. Robinson, No. 22-10949 (Sept. 28, 2023) (Jordan, Rosenbaum, Newsom), the Court vacated the defendant’s contempt conviction for violating a civil injunction against a stun-gun company.

The Court concluded that the evidence was insufficient that the defendant was bound by the injunction under Federal Rule of Civil Procedure 65. Most notably, the Court declined to consider whether the defendant was liable under an aiding and abetting theory because the government failed to pursue that theory in the district court. And, relying on recent Supreme Court decisions in Percoco and Ciminelli, as well as fair-notice principles, the Court concluded that it could not affirm on a ground that the government did not advance in the district court, a rule that applied equally to bench trials as well as jury trials.