Federal 11th Circuit Criminal Case Law Update (November 21, 2022 - November 25, 2022) — Jacksonville Criminal Lawyer Blog

The “Cite” of the Crime Podcast
CASE SUMMARIES

Federal 11th Circuit Criminal Case Law Update
(November 21, 2022 – November 25, 2022)

Listen to this week’s The “Cite” of the Crime Podcast episode here.

OVERVIEW

8 cases
- 1 published decisions
- 7 unpublished decisions
8 miscellaneous (Substantive reasonableness, Compassionate Release, Etc.)

Case # 1 – United States v. B.G.G., No. 21-10165 (11th Cir. Pub. Dec.)(November 22, 2022)

B.G.G. is a Rule 48(a) dismissal of Information or Indictment with leave of court case.
The government had been investigating B.G.G. when the COVID pandemic hit and the Southern District of Florida suspended all grand jury sessions.
The 5 year statute of limitations was about to run, so the Assistant U.S. Attorney attempted to get B.G.G. to agree under Rule 7(b) to a waiver of indictment.
Rule 7(b) requires an Indictment on a felony case unless the defendant in open court and after being advised of the nature of the charge and the defendant’s rights waives prosecution by indictment.
B.G.G., or more likely the savvy attorney, refused to waive indictment.
So, the AUSA filed an Information anyway just before the statute of limitations ran, even though that prosecutor knew that the prosecution could not proceed under the Information.
But, what the prosecutor wanted to do was buy some time.
Because under 18 USC §3288, “whenever an indictment of information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within 6 calendar months of the date of the dismissal of the indictment or the information.
So, the AUSA moved to dismiss the Information under Rule 48(a), which states, “The attorney general or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate.
Once the Information was dismissed, the AUSA believed there would be 6 more months before prosecution had to commence pursuant to 18 USC §3288.
B.G.G. did not oppose the motion to dismiss the information, but argued that the dismissal should be with prejudice.
The district court agreed and dismissed the Information with prejudice.
The government appealed arguing that the district court abused its discretion in dismissing the Information with prejudice without finding the motion was filed in bad faith.
The 11th Circuit started the opinion explaining the judiciary’s limited role in motions to dismiss indictments and informations.
The Supreme Court has repeatedly affirmed the executive branch’s exclusive authority and absolute discretion to decide whether to prosecute a case.
This discretion includes whether to dismiss a prosecution.
The Supreme Court has declined to construe Rule 48(a)’s leave of court requirement to confer any substantial role for courts in the determination whether to dismiss charges.
The leave of court requirement is designed to protect a defendant from prosecutorial harassment.
The 11th Circuit has developed a five step test in United States v. Matta to guide district courts when deciding whether to grant a motion to dismiss an indictment or information.
- First, the government is entitled to a presumption of good faith.
- Second, leave may be denied where the good faith presumption is overcome by a finding of bad faith on the part of the government.
  - A defendant can establish bad faith if the record affirmatively suggests that the government sought the dismissal in order to achieve a tactical advantage in derogation of the defendant’s rights or for the purpose of harassment.
- Third, the focus of the bad faith analysis must be on the government’s reasons for dismissing the information.
  - In Rinaldi, the United States Supreme Court stated that the salient issue is not whether the decision to maintain the federal prosecution is made in bad faith, but rather whether the government’s later efforts to terminate the prosecution is similarly tainted with impropriety.
  - The bad faith on part of the government must be at the time it sought leave to dismiss the indictment or information.
- Fourth, if the defendant has overcome the presumption of good faith, the district court must still dismiss the information if the reason for the dismissal does not go to the merits or demonstrate a purpose to harass.
- And Fifth, if the district court grants leave to dismiss the information, the Rule 48(a) dismissal is without prejudice because it does not bar a future prosecution on the same charges.
- The 11th Circuit relied on two old fifth Circuit cases, United States v. Davis and United States v. Pitts from the 1970s, which held that a subsequent prosecution was not barred by a Rule 48(a) dismissal and did not implicate double jeopardy concerns.
- Here, the 11th Circuit held that the district court erred in not following the Matta framework.
  - First, the 11th Circuit found that the trial court failed to apply the presumption of good faith.
    - The district court explained that the good faith presumption didn’t apply in this case because it only applied in cases where the government failed to articulate a reason or factual basis for the dismissal. But here, the government stated its reason.
    - However, the 11th Circuit found that the presumption of good faith applies whether the government states their reason for the dismissal or not.
  - Second, the 11th Circuit determined that the trial court failed to require B.G.G. to overcome the presumption of good faith by showing the government acted in bad faith.
    - The district court noted that although the Court can sometimes find a district court’s bad faith finding implicitly from the record, here, the district court specifically stated that it did not question the subjective good faith of the prosecutor.
  - Third, the 11th Circuit found that the district court erred in focusing on the government’s reasons for filing the information, rather than its reasons for seeking dismissal, in violation of Rinaldi.
  - Fourth, the 11th Circuit found that the district court erred in not determining whether the dismissal does not go to the merits or demonstrate a purpose to harass.
    - Although the district court did find that the government’s dismissal was arguably harassment, the 11th determined that was not enough.
  - Fifth, the 11th Circuit found that the district court erred in dismissing the information with prejudice.
    - Once the district court decides to grant leave to dismiss the information before trial, the dismissal under Rule 48(a) has to be without prejudice and can not bar a future prosecution.
    - The Court looked at dicta in Matta that states, “generally, unless a contrary intent is clearly expressed, Rule 48(a) dismissals are without prejudice.
      - The Court reads “contrary intent” to mean a prosecutor’s contrary intent.
      - In other words, the only time an indictment or information can be dismissed with prejudice under Rule 48(a) is when the prosecutor requests it.
Therefore, the 11th Circuit vacated and reversed the decision.
However, Judge Wilson gave a lengthy dissenting opinion that is worth mentioning.
- Judge Wilson believes the district court should have tools available to address a prosecutor’s workaround of the statute of limitations.
- Judge Wilson believes that because the prosecutor acted to achieve a tactical advantage, by definition, the prosecutor acted in bad faith.
- And the decision to charge, dismiss, and recharge B.G.G. over his objection is exactly what the Supreme Court labeled harassing conduct in Rinaldi.
- Judge Wilson agreed with the district court that there should be no presumption of good faith where the government gives its reasons for dismissal.
- Judge Wilson also believed that the government’s reasons for filing the information were one and the same as dismissing it. That is to extend the statute of limitations and therefore the trial court’s focus on the filing of the information was not in contradiction to Rinaldi because it was part and parcel with the reason for dismissing it.
- Judge Wilson also took issue with the majority’s view that the two old fifth circuit cases stated that dismissal must be without prejudice. He disagreed.
- Judge Wilson reads the Matta case’s “Unless a contrary intent is clearly expressed,” statement to mean that dismissal is only generally without prejudice.
- Judge Wilson believes that the majority opinion leaves district courts in a Catch-22.
  - It can refuse to dismiss an information and subject the defendant to jeopardy despite the right to be tried by a grand jury indictment or it can dismiss the case without prejudice and reward the government for unilaterally extending the statute of limitations.
- Judge Wilson then ended with a great quote from an important immigration case I’ve read many times, Niz-Chavez.
  - “If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”
  - I’m definitely going to use this line early and often next time I’m in court.
- At any rate, B.G.G. will be able to raise a statute of limitations defense when the new prosecution begins.
- Case vacated and remanded.

Case #2 – United States v. Albriza, No. 21-14057 (11th Cir. Unpub. Dec.)(November 22, 2022)

Albriza is a motion to suppress case.
An officer was on patrol in a high crime area.
The officer observed Mr. Albriza at a gas station with a local drug dealer.
The officer had received an earlier tip that a white Hispanic male with tattoos from Ocala was supplying the drug dealer with Meth.
Mr. Albriza matched that description.
The officer ran the tag of the car that Mr. Albriza drove out of the gas station and the tag was not assigned to that car.
Mr. Albriza failed to stop at an intersection and the officer conducted a traffic stop.
The officer told Mr. Albriza to get out of the car.
Mr. Albriza said he lost the title and wasn’t able to register the car or update the tag.
He provided the officer with an insurance card with someone else’s name on it.
Mr. Albriza stated he bought the car from a friend named Zay, but the car was owned by a woman with a different name.
Mr. Albriza then said he bought the car from Zay’s aunt, but didn’t give the owner’s name.
The car had not been reported stolen.
The officer began issuing three warning citations.
While the citations were being written, a K-9 arrived and two passengers were ordered out of the car.
The K-9 alerted to the car and the officers conducted a search finding a large amount of meth and fentanyl.
Officers searched Mr. Albriza and found a bullet in his pocket.
Mr. Albriza was arrested and charged with possession of a firearm by a convicted felon.
Mr. Albriza moved to suppress the drugs and bullet, arguing that the stop was unlawfully prolonged.
The district court denied the motion and Mr. Albriza entered a conditional guilty plea.
Mr. Albriza appealed, arguing that the officer prolonged the stop to allow the K-9 time to arrive.
When an officer makes a lawful traffic stop, he does not have unfettered authority to detain a person indefinitely.
A traffic stop is unlawfully prolonged when an officer, without reasonable suspicion, diverts from the stop’s purpose and adds time to the stop in order to investigate other crimes.
The purpose of the traffic stop includes addressing the traffic violation that prompted the stop and attending to related safety concerns.
This includes checking the drivers license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.
The 11th Circuit found that the officer was permitted to conduct a brief pat down search because officers conducting a traffic stop may take such steps as are reasonably necessary to protect their personal safety.
And the officer’s questions about where Mr. Albriza was going and who owned the car were reasonably related to the purpose of the traffic stop.
And just because the car wasn’t reported stolen did not mean that Mr. Albriza was in lawful possession of the car, so the officers’ questions were reasonable to ascertain the car’s owner.
And even though the officer didn’t delegate certain tasks to other backup officers, there was no evidence that he failed to act diligently and expeditiously.
Therefore, the 11th Circuit concluded that the stop was not unlawfully prolonged.
Mr. Albriza also argued that any prolongation of the stop was not justified by reasonable suspicion of other criminal activity.
- Police may rely on their own experience and specialized training to make inferences from and deductions about the information before them, and the courts give due weight to the officers experience when examining the totality of the circumstances.
- Here, a confidential tip gave a description of a man from Ocala that matched Mr. Albriza was supplying a known drug dealer with meth; Mr. Albriza was seen with the drug dealer; it was a high crime area, and Mr. Albriza confirmed he was from Ocala.
- Mr. Albriza appeared nervous, declined to identify the drug dealer by name, his tag wasn’t assigned indicative of drug trafficking or other criminal activity and Mr. Albriza was unable to provide proof of ownership of the car and gave conflicting stories about the car’s owner.
- An objective officer in this officer’s position would have a particularized and objective basis to suspect that the car may be stolen and that Mr. Albriza was involved in drug trafficking activity.
- Case Affirmed.

Case #3 – United States v. Andrew, No. 22-11612 (11th Cir. Unpub. Dec.)(November 22, 2022)

Andrew is a Drug Quantity table calculation case.
Mr. Andrew was sentenced to 27 months for possession with intent to distribute followed by 60 months consecutive for possession of a firearm during and in furtherance of a drug trafficking crime.
On appeal, Mr. Andrew challenges the drug quantity calculation that resulted in his 27 month sentence.
Note A to §2D1.1(c) provides that the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of controlled substance.
Mr. Andrews possessed 29.60 grams of heroin and fentanyl.
The presentence investigation report calculated the guidelines as if the entire 29.60 grams were entirely fentanyl.
Based on a calculation of 29.60 grams of fentanyl, Mr. Andrews offense level was 17 and his guidelines were 27-33 months.
If the 29.60 grams were treated entirely as heroin, the offense level would be 13 and the guideline would be 15-21 months.
Mr. Andrews argued that the district court should have treated the mixture as entirely heroin because the government didn’t prove he possessed a mixture and because Note A created an absurd and unjust result allowing a defendant who possessed a trace amount of a substance to be sentenced as if he possessed a large amount.
The 11th Circuit disagreed.
First, the Court noted that the PSR stated that Mr. Andrews also possessed cocaine and separated out the weight of cocaine from the heroin and fentanyl suggesting that the heroin and fentanyl were a mixture while the cocaine was separate.
Also, Mr. Andrew didn’t object to the PSR factual assertion that the heroin and fentanyl were a mixture.
As for Mr. Andrew’s argument that the Note was absurd, the 11th Circuit decision in United States v. Harold forecloses that argument.
- Federal law has long punished those with a mere trace of a controlled substance without regard to the potency of it.
- The 11th Circuit and the Supreme Court have recognized that for §841, although in some cases, the concentration of the drug in the mixture is very low, Congress intended for the entire mixture or substance to be weighed so long as it contains a detectable amount of the drug.
- It is logical to be sentenced for the purposes of §2D1.1 upon the gross weight of usable mixtures because doing so punishes a defendant based on the substances that someone using the drug mixture will ingest.
Case Affirmed.

Case #4 – United States v. Magloire, No. 22-10439 (11th Cir. Unpub. Dec.)(November 25, 2022)

Magloire is a supervised release revocation case.
Mr. Magloire was on supervised release for possession of more than 15 or more unauthorized access devices and aggravated identity theft.
A petition for a warrant was issued alleging several violations including that Mr. Magloire committed an attempted burglary.
At a revocation hearing, the government admitted four Ring video snippets showing Mr. Magloire wearing a ski mask, pushing and shoving a door of an apartment, inserting an object into the door seal and smearing a liquid over the Ring camera lens, which obscured it.
An officer testified that he stopped Mr. Magloire at the apartment complex who told him that he was visiting a friend named Sabrina and that he had keys for the elevator and apartment although he could not produce them.
The officer talked to a person who claimed to be Sabrina on the phone and she said she lived in apartment #2708.
Mr. Magloire was trying to get into #2709.
The owner of #2709 said he was Sabrina’s ex boyfriend or ex husband and that neither she nor Mr. Magloire had permission to enter his apartment.
The officer found a screwdriver on Mr. Magloire’s person.
Mr. Magloire also testified explaining that he went to see Sabrina in Apartment 2709; she didn’t answer so he tried to open the door with a key she gave him. He said that he was going to leave and Sabrina called him and told him to wait there and then the officer showed up.
Mr. Magloire admitted that he was the person in Ring video, but denied attempting to break into the apartment and denied having the mask on. He did say he tried to push the door so Sabrina could hear him.
Mr. Magloire’s response to a question about smearing a substance on the Ring lens was simply, “Ok”
The district court found that Mr. Magloire committed the attempted burglary.
Mr. Magloire’s guidelines were 8-14 months and the government recommended 12 months.
The district court applied an upward variance and sentenced him to three years. When the probation officer notified the court that the maximum was two years, the district court vacated its oral sentence and sentenced him to two years.
On appeal, Mr. Magloire argued that the district court abused its discretion by finding sufficient evidence that he committed attempted burglary.
Determining whether a defendant violated a condition of supervised release depends on actual conduct, not whether the person was charged with or convicted of a crime.
Here, the evidence established that Mr. Magloire put a substance over the Ring camera lens, attempted to enter the apartment with a ski mask over his face, pushed against the door and attempted to use a screwdriver to force entry.
Based on this evidence, the district court did not abuse its discretion in finding that Mr. Magloire committed an attempted burglary.
The Court next addressed Mr. Magloire’s argument that the trial court erred by denying his motion for a continuance so he could call Sabrina as a witness.
- When determining whether a district court abused its discretion in denying a continuance, the Court considers:
  - 1) the diligence of the moving party in obtaining the testimony,
  - 2) the probability of obtaining the testimony within a reasonable time,
  - 3) the specificity with which the defense was able to describe the witness’s expected knowledge or testimony, and
  - 4) the nature of the proffered testimony, that is, the degree to which such testimony was expected to be favorable to the accused, and the unique or cumulative nature of testimony.
- The Court noted in a footnote that it hasn’t addressed whether these factors apply to a revocation hearing but the issue wasn’t raised by the government, so the Court used the factors in this case.
- And in this case, Mr. Magloire had notice of the hearing a week in advance and never attempted to contact any witnesses and it is pure speculation that he would have been able to obtain their testimony in a reasonable time.
- Also, Mr. Magloire’s actions in the video were not consistent with someone that had consent.
- Therefore the district court did not abuse its discretion in denying the motion for continuance.
The Court also found that Mr. Magloire’s sentence was both procedurally and substantively reasonable because the district court considered the 3553(a) factors and had discretion to sentence him to the 2 years.
Case Affirmed.

Case #5 – United States v. Mediko, et al., No. 20-14461 (11th Cir. Unpub. Dec.)(November 23, 2022)

Mediko is a three defendant appeal from a fraud trial conviction.
Pauline Badiki, her brother, Ferdinand Mediko, and his wife Monica Mediko were charged with fraud and conspiracy to commit fraud for their roles in WIC fraud.
The 3 defendants were involved in a family business of running a pharmacy and they would exchange WIC vouchers for cash and then would submit the vouchers for higher dollar amounts to make a profit.
The WIC program is a federal program that provides vouchers to low income pregnant and postpartum women and children up to five that can be exchanged at participating stores for food items and baby formula.
The vouchers have a maximum dollar amount.
The vendor writes a redemption amount matching the shelf price of the item on the voucher and then deposits the voucher for currency that is paid by the United States.
Instead of giving the customer food or baby formula, the defendants would give the customer cash and then would write a higher reimbursement amount on the voucher and they would make a profit.
The defendants’ pharmacy, PolyPlex became an authorized store and Ms. Badiki took training classes, passed evaluations and signed WIC vendor agreements taking responsibility to ensure the staff was properly trained.
The Georgia Department of Public Health issued a probation letter to the pharmacy based on various deficiencies.
The investigator requested all WIC vouchers, but Mr. Mediko replied that there were no vouchers available because business had been slow with COVID and the store’s EBT machine had been down.
This was strange because an EBT machine was not used to process WIC vouchers.
Also, the store offered limited eligible items.
During undercover operations, the investigators obtained evidence during video surveillance undercover buys where four separate exchanges of vouchers for cash were made with Mrs. Mediko.
Mr. Mediko was always present in the store during the undercover exchanges and Mrs. Mediko would go to the back office and collect the cash from Mr. Mediko.
The investigators also obtained a recorded call between Mrs. Mediko and the undercover where Mrs. Mediko told that person to go to the doctor to get Peptamen prescribed for her baby because it was a high dollar item.
Investigators obtained a search warrant and obtained documents from PolyPlex that included a check that listed “cash Fred for WIC in the amount of $400.”
The dollar amounts for those purchases didn’t match the amount of inventory.
Mr. Mediko’s attorney provided additional documents to the government which showed more than $1 million in purported WIC eligible expenses, but the government learned that the documents were fraudulent.
The three defendants were indicted on various conspiracy, wire fraud and other theft and fraud offenses.
At trial, a conflict of interest issue came up because it was Mr. Mediko’s attorney who provided fraudulent documents to the government, potentially making him a witness.
- The government planned to admit the box of fraudulent documents at trial and it wanted to reach a stipulation with the three defense attorneys to avoid the need to tell the jury that the box came from the attorney.
- The defendants filed a joint motion to exclude the box under Rule 11, Rule 403 and Rule 410.
- The trial court indicated that it intended to exclude the box of documents under Rule 403 because the attorney would have to testify if it was admitted, but asked where the parties stood on the stipulation.
- The parties then agreed to a stipulation that stated the box was received by “a representative of the defendants.”
- What isn’t clear is why the defendants’ attorneys would agree to a stipulation when the court indicated it was going to exclude the evidence without a stipulation. That just isn’t clear from the record.
- The district court ruled that the attorney could not testify during the trial.
- At trial, the investigator, the undercover, and a few WIC recipients testified.
- One witness testified that she gave WIC vouchers to Mr. Mediko for cash numerous times and Mr. Mediko would ask Ms. Badiki to bring cash.
- Bank records showed that Ms. Badiki signed hundreds of checks and some were made out to cash with WIC written on the memo line, she had signed deposit slips and deposited fraudulent WIC vouchers.
- On one voucher, Ms. Badiki crossed out the redemption amount and wrote a new dollar amount.
- There was also testimony that PolyPlex’s redemptions were $6.5 million dollars while the closest competitor was less than $2.1 million and the competitors were large retailers like Publix, Kroger and Walmart.
- Evidence was also submitted that showed that the WIC redemption amounts exceeded PolyPlex’s expenses by about $5 million dollars.
- The government also submitted the box of fraudulent documents and called vendors to testify that the invoices were fraudulent.
- The defense also called witnesses who were delivery drivers to testify that they never purchased WIC vouchers for cash.
- One prior employee testified that she falsified the documents without any of the defendant’s knowledge when she lost the original documents and falsified new ones to hide the fact that she lost the originals.
- The jury came back guilty on all counts for all three defendants.
- On appeal, Ms. Badiki raised three issues
  - First, Ms. Badiki argued that the evidence was insufficient to convict her.
    - She argued that the evidence established that she gave up control and ownership of the pharmacy at around the same time the conspiracy began and there was no evidence that showed she interacted with WIC recipients who sold their vouchers.
    - A jury may infer intent to defraud from the defendant’s conduct and circumstantial evidence.
    - Here, the evidence showed that Ms. Badiki signed WIC vendor applications, training records and WIC program agreements.
    - She identified herself as president or manager, agreed to be held responsible for ensuring employees followed WIC rules; she controlled the business’s finances, signed hundreds of checks, some made out to cash with “WIC” written in the memo line and she deposited the fraudulent WIC vouchers.
    - Although management and control of finances alone are not enough, here the Court held there was much more.
    - In addition, Mr. Mediko brought Ms. Badiki cash to give to an individual to exchange for a WIC voucher and there was a $4 million gap between the WIC redemptions and the value of the WIC eligible goods.
    - Ms. Badiki controlled the finances, wrote checks and deposited WIC vouchers.
    - Based on that evidence, it was sufficient to support her conviction.
  - Ms. Badiki also challenged her role enhancement under §3B1.1(c), which calls for a 2 level enhancement if the defendant is an organizer, leader, manager or supervisor in criminal activity that involved at least one other participant.
    - Management of the banking and business finances is not enough by itself to support an enhancement.
    - There must be evidence that the defendant exerted some control, influence, or decision making authority over another participant in the criminal activity.
    - Here, there was evidence that Ms. Badiki paid 10% commission to drivers who exchanged WIC vouchers for cash.
    - Incentivizing others to participate in a conspiracy by paying commissions implies the sort of hierarchical relationship necessary to uphold a role enhancement.
    - The issue here was that the only evidence that Ms. Badiki gave drivers a commission was a prior interview from a former employee.
    - But that employee had health issues and went into a coma and subsequently had serious memory issues and could not remember Ms. Badiki providing the commission to drivers.
    - The 11th Circuit found that the employee’s first statement was more specific and the subsequent statement contained no contradictions.
    - Because there was a reasonable explanation for why the former employee could not remember and the two statements didn’t contradict each other, the district court was entitled to rely on her earlier statement to apply the role enhancement.
  - Ms. Badiki also challenged the district court’s application of a §3C1.1 obstruction of justice enhancement for providing fraudulent documents.
    - This enhancement requires that a defendant willfully obstruct or attempt to obstruct justice.
    - Willfully means the defendant consciously acted with the purpose of obstructing justice.
    - §3C1.1 application note provided examples that include producing or attempting to produce a false, altered or counterfeit document or record during an official investigation or judicial proceeding.
    - And the 11th Circuit has held in United States v. Callahan that transmitting false documents to the government during an official investigation may constitute obstruction of justice.
    - The obstruction enhancement is based on the production of the fraudulent documents as long as the defendant is aware that the documents are fraudulent.
    - The documents were produced on behalf of PolyPlex, all three defendants joined it and the court could infer that Ms. Badiki knew of the falsity of the documents despite no direct evidence.
    - Ms. Badiki was in a management role, knew she was in trouble, she was in a position to benefit from the fraudulent production, and the fraudulent invoices only covered the years of investigation.
    - And the district court had discretion to discount the testimony of the former employee that said she created the fraudulent documents without any of the defendant’s knowledge.
  - So, the 11th Circuit rejected all of Mrs. Badiki’s claims.
- Mr. Mediko argued three issues on appeal.
  - First, Mr. Mediko argued that his attorney had a conflict of interest because he tendered the documents and could not testify that it wasn’t Mr. Mediko that gave him the box of fraudulent documents.
  - A 6th Amendment claim arising from an alleged conflict of interest when the defendant does not object at trial must demonstrate that an actual conflict of interest adversely affected the lawyer’s performance.
  - The conflict must be real and not merely hypothetical or speculative.
  - An actual conflict exists where a defendant shows that counsel had conflicting interests and that he in fact made a choice between two or more courses of action, such as eliciting or failing to elicit evidence that favors an interest in competition with that of the defendant.
  - Here, the Court more properly framed the issue as an ineffective assistance of counsel claim.
  - In the 11th Circuit’s view, the issue wasn’t who tendered the box to the government, but rather whether Mr. Mediko orchestrated the falsification of the documents, knew about their existence, or knew that they would be provided to the government.
  - And Mr. Mediko’s attorney could not provide evidence on those issues.
  - And even if his attorney’s testimony was material to his defense, Mr. Mediko could not establish that he could not get the evidence through another source, because he did, in fact, call a witness to testify that she fabricated the documents and Mr. Mediko had no knowledge of the fabrication.
  - Therefore, the attorney was not a necessary witness, so no actual conflict of interest could exist.
  - And nothing suggested that the attorney was involved in preparation of the falsified documents or knew they were fraudulent.
  - As for Mr. Mediko’s claim that his attorney had no good reason to stipulate to admission of the box of fraudulent documents when the trial court was indicating it was going to exclude the evidence, the 11th Circuit found that the issue would be more appropriate as a §2255 ineffective assistance of counsel claim.
  - Mr. Mediko also argued that the trial court erred by not conducting a Garcia hearing to determine whether a conflict of interest existed.
    - When it is apparent that a potential conflict of interest exists, the district court must conduct an inquiry to ensure the defendant is knowingly, intelligently, and voluntarily waiving his constitutional right to conflict of counsel.
    - The district court has no duty to inquire into the possibility of a conflict when neither the defense nor the record alerts the court to the possible conflict.
    - A district court’s failure to conduct a Garcia hearing will result in reversal only if an actual conflict of interest exists.
    - Here, despite not conducting a Garcia hearing, that failure does not warrant reversal because the attorney represented Mr. Mediko for four years and the trial court was never alerted to any potential conflict and there was no actual conflict.
  - Mr. Mediko’s third and final argument on appeal was that the government singled him out during closing argument by stating that his representative turned over the box of fraudulent documents.
    - However, the 11th Circuit determined that this was only one comment and it was made about each of the defendants and several times commented on the defendant’s representative collectively and therefore, never singled Mr. Mediki out.
  - So, the 11th Circuit rejected all three of Mr. Mediko’s claims.
- Mrs. Mediko only had one issue that she raised on appeal.
  - Ms. Mediko argued that she was prevented from calling Mr. Mediko’s attorney who could have corrected the misleading impression that she was involved in the presentation of the false documents.
  - Four circumstances exist under which a defendant must be allowed to introduce evidence:
    - 1) a defendant must generally be permitted to introduce evidence directly pertaining to any of the actual elements of the charged offense or an affirmative defense,
    - 2) a defendant must generally be permitted to introduce evidence pertaining to collateral matters that, through a reasonable chain of inferences, could make the existence of one or more of the elements of the charged offense or an affirmative defense more or less certain,
    - 3) a defendant generally has the right to introduce evidence that is not itself tied to any of the elements of a crime or affirmative defense, but that could have a substantial impact on the credibility of an important government witness, and
    - 4) a defendant must generally be permitted to introduce evidence that, while not directly or indirectly relevant to any of the elements of the charged events, nevertheless tends to place the story presented by the prosecution in a significantly different light, such that a reasonable jury might receive it differently.
    - Ms. Mediko must make a proffer of the substance of the excluded evidence to show what was wrongly excluded.
    - The attorney proffered that he would ask Mr. Mediko’s attorney if he had any information that Mrs. Mediko had any knowledge of what was in the fraudulent documents.
    - The 11th Circuit found that the proffer did not have any information about Mrs. Mediko’s involvement in the falsified invoices.
    - Exclusion of testimony that Mr. Mediko’s attorney didn’t know whether Mrs. Mediko was involved was not sufficient.
    - Also, Mr. Mediki’s testimony was not the only evidence that could be presented with respect to her knowledge of the fraudulent documents.
    - A witness did testify that she created the fraudulent documents without Mrs. Mediki’s knowledge.
    - Therefore, there was no 6th Amendment violation and even if there was, it was harmless error because of the overwhelming evidence of her guilt.
  - So, Mrs. Mediko’s claim was rejected.
- Case as to all three defendants affirmed.

Case #6 – United States v. Santiago Rivera, No. 21-13835 (11th Cir. Unpub. Dec.)(November 23, 2022)

Rivera is a 6th Amendment Confrontation Clause case.
Mr. Rivera was charged with and convicted of conspiracy to possess with intent to distribute 400 grams or more of fentanyl.
On appeal, Mr. Rivera argued that the district court violated his 6th Amendment right by allowing the government to introduce transcripts when the original translator did not testify and was not subject to cross examination.
Mr. Rivera also argued that the district court erred by admitting evidence of a drug transaction that occurred two and half months before the start of drug conspiracy.
The 6th amendment guaranteed the right to be confronted with the witnesses against him.
In Crawford v. Washington, the Supreme Court explained the Confrontation Clause’s primary object is testimonial hearsay.
If hearsay is testimonial, the Confrontation Clause forbids its introduction at trial unless:
- 1) the Declarant is unavailable, and
- 2) the defendant had a prior opportunity to cross examine the Declarant.
Testimonial statements include statements that are the functional equivalent of in-court testimony, such as affidavits, depositions, prior testimonial statements for purposes other than establishing the truth of the matter asserted.
The Confrontation Clause is not violated when an individual who independently reviewed the underlying recordings and transcripts for accuracy is subject to cross examination.
Here, because Mr. Rivera only objected on hearsay and authenticity grounds and not on confrontation clause grounds, the issue was not preserved and the plain error standard applies.
The 11th Circuit noted that Mr. Rivera had access to the transcripts for over a year before trial and he failed to produce any alternative transcripts or point to any errors in the transcripts.
The Court held that the transcripts did not constitute testimonial hearsay, and the government offered witnesses who testified as to the transcript’s accuracy based on an independent review of the telephone calls and transcripts and therefore there was no Confrontation Clause error.
And the assertion that written transcripts constitute inadmissible hearsay as translations of the interpreter has been rejected by the 11th Circuit in United States v. Alvarez.
Here, nothing suggested the translator did not have sufficient capacity to interpret the telephone calls or that the translator had any motive to mislead the agents.
And although the government didn’t call the original translator, they did call a witness to testify to the interpretation process.
There was testimony from a witness that listened to the calls, reviewed the transcripts, and verified that the translations were accurate.
The Confrontation Clause only insists that testimony be subject to cross examination and several witnesses testified regarding the transcripts, so the Confrontation Clause was not violated.
Mr. Rivera next argued that the district court erred in admitting evidence of a prior drug transaction.
Rule 401 provides that evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.
The evidence of the prior drug transaction was relevant because the drugs were from the same shipment making it more probable the substance he conspired to possess was fentanyl.
Case Affirmed.

Case #7 – United States v. Sims, No. 21-11966 (11th Cir. Unpub. Dec.)(November 21, 2022)

Sims is a 922(g) possession of a firearm by a convicted felon 404(b) case.
Mr. Sims went to his ex-girlfriend’s house to pick up his son.
As he was driving away from the house, Mr. Sims called the boy’s mother asking what man was at the house.
Mr. Sims told her that either he was going to come outside or Mr. Sims was going to shoot the house up.
Mr. Sims called his ex-girlfriend back and said he was going to drop their son off and was coming back to her home and he repeated his earlier threat.
The ex-girlfriend drove to Mr. Sims’ house to get their son and Mr. Sims wasn’t there.
The ex-girlfriend drove to a gas station and called 911.
Mr. Sims pulled up next to her at a gas station and then began following her until he eventually drove away.
An officer arrived and the ex-girlfriend called Mr. Sims and put it on speaker and Mr. Sims didn’t deny threatening to shoot up the home.
The ex-girlfriend eventually drove home and went to sleep.
Later in the night, the ex-girlfriend heard gunshots and bullets hitting the home so she called 911 and told the operator she thought it was Mr. Sims.
However, the ex-girlfriend never saw Mr. Sims.
13 minutes later, an officer saw Mr. Sims’ car headed away from the ex-girlfriend’s home.
The officer stopped the car, drew his guns and ordered Mr. Sims out of the car.
The officer searched Mr. Sims and searched the car and found a .40 caliber Glock, two magazines and ten spent casings in the trunk.
Mr. Sims was arrested and indicted on possession of a firearm by a convicted felon.
Mr. Sims filed a motion in limine to exclude evidence of the shooting under Federal Rules of Evidence 401, 403 and 404(b).
The district court denied the motion but issued a limiting instruction and the jury convicted Mr. Sims, who was then sentenced to 115 months.
On appeal, Mr. Sims argued that the shooting should have been excluded as irrelevant under Rule 401, as a prior bad act under Rule 404(b), and as unduly prejudicial under Rule 403.
Rule 401 defines relevant evidence as evidence that has any tendency to make a fact more or less probable provided that the fact is of consequence in determining the action.
- Here, the 11th Circuit found that the evidence of the shooting was highly relevant to show Mr. Sims’ possession of the firearm found in the trunk of a car that he didn’t own.
Rule 404(b) prohibits the introduction of evidence of a crime, wrong, or other act to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
- However, 404(b) does allow such evidence for other purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
- Such evidence is admissible if it is
  - 1) of an uncharged offense which arose out of the same transaction or series of transactions as the charged offense;
  - 2) necessary to complete the story of the crime, and
  - 3) inextricably intertwined with the evidence regarding the charged offense.
- Here the Court held that the evidence of the shooting was intrinsic to the possession of the firearm because the shooting provided necessary context to the charged offense.
Rule 403 provides for exclusion of evidence if its probative value is substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence.
- Here, the 11th Circuit held that the evidence of the shooting was highly probative and there was no unfair prejudice.
So, finding that the evidence of the shooting was properly admitted, the Court next turned to Mr. Sims’ argument that §922(g) is unconstitutional under the Commerce Clause.
- The 11th Circuit held that this argument is foreclosed by the 11th Circuit’s precedent decision in United States v. Longoria and United States v. McAllister.
- The Court found that the evidence by a special agent that the firearm and ammunition traveled through interstate commerce was sufficient to provide the minimal nexus to be prosecuted under the commerce clause.
Case Affirmed.

Case #8 – United States v. Thomas, No. 22-10831 (11th Cir. Unpub. Dec.)(November 23, 2022)

Thomas is a fraud loss calculation and aggravating role case.
Mr. Thomas and four co-defendants were charged with running a shell company that defrauded various payroll processing companies.
Staffing companies would issue payroll funds to Mr. Thomas’ company who would keep the funds for himself and not reimburse the staffing companies.
Mr. Thomas discussed the scheme with his co-defendants and received payment sporadically from at least one co-defendant, they both knew of each other’s roles and abetted each other by sharing information and money.
Mr. Thomas was the only defendant to plead guilty to all 28 counts and he pled without the benefit of a plea agreement.
On appeal, Mr. Thomas challenged the district court’s application of an aggravating role enhancement under §3B1.1(b), which provides for a 3 level enhancement if the defendant is a manager or supervisor and the criminal activity involved 5 or more participants or was otherwise expansive.
- Court consider several factors when determining whether a defendant is a supervisor or manager including:
  - Decision making authority
  - The nature of the participation in the offense
  - Recruitment of accomplices
  - The claimed right to a larger share of the fruits of the crime
  - The degree of participation in planning or organizing the offense,
  - The nature and scope of the offense, and
  - The degree of control and authority exercised over others.
- Mr. Thomas argued that his co-defendant received a lower enhancement, entitling him to the same.
- But the 11th Circuit correctly applied the 3 level enhancement because he received payments from nearly all of the co-conspirators, had certain decision making authority, he owned the domain for the shell company, he taught and instructed the co-defendant, he was identified as the originator of the scheme and he had prior experience from a previous similar scheme.
Mr. Thomas also challenged the loss calculation arguing that the district court erred in using the whole amount of loss attributed to all of the co-defendants.
- The Court held that all of the acts were within the scope of the jointly undertaken scheme because they knew each other’s roles, aided and abetted each other by sharing information and money and the co-defendant’s individual acts were reasonably foreseeable.
And the loss calculation did not lead to a substantively unreasonable sentence because of a sentence disparity with his co-defendant.
- Mr. Thomas is the only defendant to plead to all 28 counts, he didn’t have a plea agreement and didn’t provide the government with information in a proffer that could not later be used against him at a sentencing hearing and Mr. Thomas was on supervised release for a very similar charge.
So, the 11th rejected Mr. Thomas’ claims.
Case Affirmed.