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Criminal Law

Defense Newsletter Blog

Breaking news supplementing the Defense Newsletter covering 11th Circuit and Supreme Court Cases.
By Tim Cone

Post Frequency: 9.1/day

Last Entry: October 27, 2020 at 13:19:00

Joseph: Affirming Heroin Convictions Over Various Challenges

Posted on October 27, 2020
In United States v. Joseph, No. 19-11198 (Oct. 27, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant?s drug convictions and sentence.First, the Court upheld the denial of a motion to suppress. An officer testified that he saw drugs inside the car and, although two witnesses testified that they could not see through the tinted, the district court did not clearly err by crediting the officer?s testimony...

Wilson: Upholding Conviction for Possession of Unregistered Sawed-off Shotgun

Posted on October 27, 2020
In United States v. Wilson, No. 17-12379 (Oct. 27, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant?s conviction and sentence for possession of an unregistered sawed-off shotgun. First, the Court held that the district court had subject matter jurisdiction over the prosecution, holding that the National Firearms Act does not violate the Second or Tenth Amendments...

Bazantes: Affirming False Payroll Convictions But Vacating Loss Enhancement

Posted on October 26, 2020
In United States v. Bazantes, No. 17-15721 (Oct. 26, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the defendants? false statement convictions but vacated their sentences. The defendants first argued that certified payroll forms containing false statements were not made or used in a matter within the jurisdiction of a federal agency...

Muho: Upholding Fraud Convictions and USSG 2B1.1(b)(17)(A) Enhancement

Posted on October 22, 2020
In United States v. Muho, No. 18-11248 (Oct. 22, 2020) (Watkins (M.D. Ala.), Martin, Newsom), the Court affirmed the defendant?s fraud convictions and sentence. First, the district court did not err in failing to sua sponte reinstate counsel for the defendant after he validly invoked his right to self-representation...

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Grow: Affirming Healthcare Fraud Convictions but Vacating Dual-Object Conspiracy Sentence

Posted on October 21, 2020
In United States v. Grow, No. 18-11809 (Oct. 21, 2020) (Luck, Ed Carnes, Marcus) (per curiam), the Court affirmed the defendant?s convictions but vacated his sentence. First, the Court that the evidence was sufficient to support convictions for conspiracy to commit healthcare and wire fraud, substantive healthcare fraud, paying and receiving illegal kickbacks, and money laundering...

Iriele: Lay Expert Can Testify About Handwriting Learned During Course of Criminal Investigation

Posted on October 09, 2020
In United States v. Iriele, No. 17-13455 (Oct. 9, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the pharmacist defendant?s convictions stemming from the illegal dispensation of prescription medications. On appeal, the defendant raised 15 claims of error...

Gallardo: Upholding Cocaine Conspiracy Conviction Over Multiple Challenges

Posted on October 09, 2020
In United States v. Gallardo, No. 18-11812 (Oct. 9, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant?s conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine. First, the Court found no abuse of discretion in denying a mistrial based on an agent?s false rebuttal testimony because the defendant did not meet his burden to show prejudice...

Gayden: Upholding Prescription Drug Convictions Over Multiple Challenges

Posted on October 09, 2020
In United States v. Gayden, No. 18-14182 (Oct. 9, 2020) (Tallman (CA9), Martin, Rosenbaum), the Court affirmed the defendant?s convictions and sentence for unlawfully distributing prescription drugs. First, the Court found no abuse of discretion related to the government?s pre-indictment delay because, even assuming that the defendant could show prejudice, he could not show that the government deliberately delayed to gain a tactical advantage...

Bruce: Finding Reasonable Suspicion Based on an Anonymous 911 Tip

Posted on October 08, 2020
In United States v. Bruce, No. 18-10969 (Oct. 8, 2020) (Grant, Lagoa, Martin), the Court affirmed the denial of a motion to suppress. First, the Court held that there was reasonable suspicion to stop the defendant. An anonymous 911 call at 3am reported that men in a high-crime area were outside of a white car, one of them had a gun, and there might be a shooting any minute...

Amede: Upholding Drug Conviction an Sentence Over Various Challenges

Posted on October 08, 2020
In United States v. Amede, No. 18-11172 (Oct. 8, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant?s conviction and sentence for attempted possession with intent to distribute five kilograms of cocaine. First, the Court upheld the denial of the defendant?s motion to exclude three recorded phone calls between a co-conspirator and undercover officer to arrange the drug deal...

Innocent: Affirming 922(g) Convictions Over Rehaif Challenge

Posted on October 08, 2020
In United States v. Innocent & Jones, Nos. 19-10112, 18-15210 (Oct. 8, 2020) (William Pryor, Tjoflat, Hull), the Court affirmed 922(g) convictions over a Rehaif challenge. Applying plain error review, the Court agreed that the defendants? pre-Rehaif indictments were erroneous in light of Rehaif, and that error was now plain...

Abreu: Reversal for Insufficient Evidence Alone Does Not Establish Actual Innocence for Unjust Conviction Statute

Posted on October 01, 2020
In United States v. Abreu, 18-13965 (Oct. 1, 2020) (Jordan, Newsom, Hall), the Court affirmed the denial of a petition for a certificate of innocence under the Unjust Conviction Statute. The Eleventh Circuit had previously reversed the petitioner?s fraud convictions for insufficient evidence...

Conage: ACCA Case Certifying Question about "Purchasing" Trafficking Quantity to Florida Supreme Court

Posted on September 30, 2020
In United States v. Conage, No. 17-13975 (Sept. 30, 2020) (Julie Carnes, Ed Carnes, Clevenger), the Court certified a question to the Florida Supreme Court about the Florida trafficking statute in 893.135. The question was whether cocaine trafficking under 893...

Bolatete: Upholding Conviction for Possessing Unregistered Silencer Over Constitutional Challenges

Posted on September 29, 2020
In United States v. Bolatete, No. 18-14184 (Sept. 29, 2020) (Ed Carnes, Branch, Luck), the Court affirmed the defendant?s conviction and sentence for possessing an unregistered silencer. First, the Court held that the National Firearms Act was constitutional under Congress? taxing power...

Boyd: Enforcing Sentence Appeal Waiver Where Defendant Challenged Calculation of Guidelines

Posted on September 16, 2020
In United States v. Boyd, No. 18-11063 (Sept. 16, 2020) (Branch, Marcus, Huck), the Court granted the government?s motion to dismiss the appeal based on a sentence appeal waiver. The appeal waiver barred the defendant from appealing his sentence unless the court imposed a sentence ?that exceeds the advisory guideline range...

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

Posted on August 26, 2020
In United States v. Davila-Mendoza et al., No. 17-12038 (Aug. 26, 2020) (Branch, Jill Pryor, Boggs), the Court vacated the defendants? MDLEA convictions on the ground that the statute, as applied, exceeded Congress? constitutional authority. The drug-trafficking activities in this case occurred in the territorial waters of a consenting foreign country, not the high seas...

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

Posted on August 26, 2020
In United States v. Mastin, No. 18-14241 (Aug. 26, 2020) (Grant, William Pryor, Antoon), the Court affirmed the defendant?s felon in possession conviction. The Court upheld the denial of a motion to suppress the gun. The gun fell out of the defendant?s waistband after the police ordered him to get on the ground and crawl out of a hotel room where the officers were executing arrest warrants on others...

Jimenez: Upholding Visa Fraud and Money Laundering Convictions

Posted on August 25, 2020
In United States v. Jimenez, No. 18-10569 (Aug. 25, 2020) (Hull, Wilson, Lagoa), the Court affirmed the defendant?s immigration-fraud conspiracy and money laundering convictions. The Court held that sufficient evidence supported the immigration-fraud conspiracy conviction because the material misrepresentations he conspired to make were in documents ?required by immigration laws and regulations...

Estrada: Upholding Convictions for Smuggling Cuban Baseball Players

Posted on August 13, 2020
In United States v. Estrada, No. 17-15405 (Aug. 13, 2020) (Jill Pryor, Rosenbaum, Branch), the Court affirmed the defendants' convictions for smuggling baseball players out of Cuba into the United States. First, the Court rejected as foreclosed by prior precedent the defendants' arguments that the Cuban Adjustment Act and Wet-Foot/Dry-Foot policy established ?prior official authorization? for the players to enter the US...

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

Posted on August 12, 2020
In United States v. Carter, No. 18-14806 (Aug. 12, 2020) (Grant, William Pryor, Antoon), the Court upheld the defendant?s ACCA sentence. The issue was whether two prior Alabama drug offenses were committed on separate occasions. Based on a review of the indictment and plea admissions, the Court held that they were more likely than not committed separately, because only one of the two offenses received a location-based enhancement under state law.

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

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

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

Posted on August 11, 2020
In United States v. Green, No. 17-10346 (Aug. 11, 2020) (Wilson, Grant, Hinkle), the Court affirmed in part and vacated in part. First, the Court held that RICO conspiracy is not a ?crime of violence? under the elements clause in 924(c)(3)(A). The Court reasoned that, like Hobbs Act conspiracy, RICO conspiracy was premised on a mere agreement to participate in unlawful activity and does not require an overt act...

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

Posted on August 11, 2020
In United States v. Walked, No. 18-11951 (Aug. 11, 2020) (Martin, Grant, Lagoa), the Court reversed the denial of the government?s forfeiture motion. The Court held that, if a defendant is convicted of a money laundering scheme that caused no financial harm to an innocently involved bank, a forfeiture order is still mandatory...

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

Posted on August 07, 2020
In United States v. Henry, No. 18-15251 (Aug. 7, 2020) (William Pryor, Grant, Antoon), the Court vacated the district court?s refusal to adjust the defendant?s sentence under USSG 5G1.3(b) based on time served on a related state case. Although there was no dispute that the criteria for an adjustment under 5G1...

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

Posted on August 03, 2020
In United States v. Knights, No. 19-10083 (Aug. 3, 2020) (William Pryor, Rosenbaum, Michael Moore), the Court upheld the denial of a motion to suppress. Officers parked a patrol car close to the defendant?s car and then approached him. The Court held that this was a consensual encounter that did not rise to the level of a seizure because a reasonable person would have felt free to leave...

Competa: No Additional Competency Hearings Required Before Trial and Sentencing

Posted on August 03, 2020
In United States v. Cometa, No. 19-11282 (Aug. 3, 2020) (William Pryor, Rosenbaum, Luck), the Court upheld the denial of additional competency hearings before trial and sentencing.The Court found no abuse of discretion because an expert opined that he was competent before trial...

Melgen: Upholding Medicare Fraud Convictions Over Multiple Challenges

Posted on July 31, 2020
In United States v. Melgen, No. 18-10991 (July 31, 2020) (Grant, Martin, Lagoa), the Court affirmed the defendant?s Medicare fraud convictions and sentence. First, the Court rejected the defendant?s argument that the district court erred by giving the pattern instruction on materiality...

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

Posted on July 30, 2020
In United States v. Smith, No. 18-13969 (July 30, 2020) (Ed Carnes, Luck, Marcus), the Court affirmed the defendant?s Hobbs Act robbery and 924(c) convictions. First, the Court held that the district court?s finding that a photographic lineup was not unduly suggestive was not clearly erroneous...

Carmichael: Upholding Denial of 2255 Motion Based on IAC

Posted on July 22, 2020
In Carmichael v. United States, No. 17-13822 (July 22, 2020) (Proctor (ND Ala), Wilson, Newsom), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.The government conceded, and the Court agreed, that counsel performed deficiently by failing to communicate Carmichael?s total 40-year sentence, seek a negotiated plea as requested, or relay 10-year and 20-year plea offers...

Hall: Upholding 40-Year Child Pornography Sentence

Posted on July 21, 2020
In United States v. Hall, No. 18-14145 (July 21, 2020) (Ed Carnes, Rosenbaum, Vinson (ND Fla)), the Court affirmed the defendant?s 40-year sentence for receiving child pornography, an upward variance from a guideline range of 15 years.First, the Court rejected the defendant?s argument that the sentencing court improperly relied on unreliable hearsay evidence from an earlier sexual abuse case...

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