Federal 11th Circuit Criminal Case Law Update (January 9, 2023 – January 13, 2023)

by Lasnetski Gihon Law

The “Cite” of the Crime Podcast
CASE SUMMARIES

Federal 11th Circuit Criminal Case Law Update
(January 9, 2023 – January 13, 2023 )

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

OVERVIEW

7 cases
3 published decisions
4 unpublished decisions

Case # 1 – United States v. Moran, No. 21-12573 (11th Cir. Pub. Dec.)(January 13, 2023)

Moran is an internet troll defense to a criminal attempt to produce child pornography case.
Mr. Moran would scour the internet for mom blogs where mothers of small children would post about everyday parenting things, like what are the best diapers, what swim suits to buy, things like that.
Mr. Moran decided to ask these moms for pornographic photos of their children.
For example, he would post comments about a mom’s post of her five year old daughter wanting to learn photography and he would say, ‘hey, she did a great job with those photos, now have her take pornographic photos.” I won’t get into the details, but really awful, disgusting and specific stuff. You can read the opinion for the actual posts.
So, law enforcement traced his IP address and during a search of his residence they found more than 1,000 image of child pornography. The images were of children of consistent ages of the children he was soliciting photos of on the mom blogs.
They also found 24 pairs of children’s underwear and no children lived at his residence.
Finally, they found deleted file folders on his computer titled “Babies” and “Potty Time” which was also consistent with some of the posts on the mom’s blogs targeting mothers of infants using diapers.
So, the government charged him with one count of possession of child pornography and three counts of attempted production of child pornography.
A jury convicted him and he was sentenced to 64 years in prison.
Mr. Moran appealed with an interesting argument.
Basically, he argued that he was just trolling the mothers on the mom blog and there was no real probability that they would actually send him pornographic images, so therefore he isn’t guilty of attempted production.
So, we have to start with the text of the statute, §2251(a), in relevant part. And that makes it unlawful for any person to:
- Employ, use, persuade, induce, entice, or coerce any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct…
- Mr. Moran argued that the government couldn’t prove that he had the specific intent to commit the crime because it wasn’t even plausible that any mom blogger would have sent him a pornographic image of their child. And therefore, it’s clear that he was just internet trolling and did not intend to produce the child pornography.
- But, the 11th Circuit smacked this argument down finding that the desire alone is enough to establish intent. It doesn’t matter if there is any likelihood of success, or none at all. If the government proves that you desired to produce child pornography, that’s good enough for a conviction.
- The Court also noted that he could have been trolling the mom’s but also desired the child pornography. Those two goals aren’t mutually exclusive.
- And here, the jury had Mr. Moran’s posts, evidence of his sexual desire in children and he made false exculpatory statements to police when confronted.
- The evidence that he asked for child pornography is evidence of his intent even if his request was unlikely to result in the actual production of child pornography.
- Whether his request was unlikely to result in actual production of child pornography goes to the weight of the evidence.
- And in this case, Mr. Moran’s posts were buttressed by the child pornography found in his home, the children’s underwear and his false statements to police.
- So, trolling or not, Mr. Moran’s conviction was upheld as the government does not have to prove that there was any likelihood of success to establish an attempted production of child pornography charge.
- Mr. Moran also challenged the interstate nexus requirement for the §2251(a) offense.
  - Mr. Moran argued that he must first know that there is a child pornography depiction before he can be convicted of knowing it will travel in interstate commerce.
  - But, the 11th Circuit rejected this argument as well, and held that, for the interstate commerce nexus element, the government must only prove that if the child pornography were produced, it would have traveled in interstate commerce.
  - So, he is guilty even if the defendant doesn’t know that there are child pornography visual depictions.
Case affirmed.

Case #2 – United States v. Pate, No. 20-10545 (11th Cir. Pub. Dec.)(January 11, 2023)

Pate was a decision released back in August by a panel of the 11th Circuit.
That panel looked at 18 USC §1521, obstruction of justice and determined that the statute applies to false liens filed against both current and former federal officers and employees because of actions they performed while they were employed by the federal government.
Judge Newsom dissented believing that the statute only applies to current federal officers and employees.
Last week, the 11th Circuit vacated that decision and ordered that the case be heard en banc.
So, if you have a §1521 case relating to a former federal employee, keep an eye out for that decision.
Opinion vacated.

Case #3 – Kallen-Zury v. United States, No. 20-12385 (11th Cir. Unpub. Dec.)(January 12, 2023)

Kallen-Zury is a Medicare fraud case that resulted in a five week trial.
The case was upheld on appeal (actually 3 appeals as this is the fourth time Ms. Kallen-Zury has been before the 11th circuit on this case) and Ms. Kallen-Zury now appeals the denial of her §2251 Motion to Vacate.
The crux of her argument is that her attorney failed to call several witnesses in her defense and therefore rendered ineffective assistance of counsel.
So, I won’t get too far into the weeds on the facts of the case, but Ms. Kallen-Zury co-owned and operated two businesses, a mental health facility and a nursing home.
The evidence established that she would use recruiters to find patients that didn’t need psychiatric services and then she would bill Medicare for those services. Most of the patients were drug addicts and would receive cash payment for signing up. And there was evidence that co-conspirators falsified patient records to reflect false psychiatric problems
At trial, Ms. Kallen-Zury argued that she acted in good faith adn believed that the recruiters were providing lawful marketing services and even had lawyers draft contracts.
As a little side note, and what was only a footnote in the opinion, the Court describes an incident at trial that I thought was important to mention. At trial, an agent testified that a falsified patient register was found on Ms. Kallen-Zury’s computer and she denied knowledge of that record. Turns out, after trial, the government finds out that a disc had been mislabeled and the falsified document was actually found on someone else’s computer. And the prosecutor had attacked Ms. Kallen-Zury’s credibility at trial because she denied having that record on her computer. Despite this, the district court denied a motion for new trial and the 11th Circuit previously affirmed finding that any error was harmless. Wow! But I digress
So, back to this appeal, Ms. Kallen-Zury argues that her counsel was ineffective because he implied in opening statement that he was going to call several witnesses, but then only ended up calling Ms. Kallen-Zury.
- She argued that there were several witnesses who would have provided exculpatory evidence.
- The attorney testified at a §2251 hearing at the trial court level that he decided to put Ms. Kallen-Zury on the stand first to try and catch the government off guard, so they wouldn’t have as much time to prepare for cross and to whittle down her credibility.
- The attorney also testified that he decided not to call the other witnesses because he didn’t think they would significantly move the needle and would provide the government an opportunity to undermine Ms. Kallen-Zury’s testimony.
- The witnesses at issue would have testified that the company was well run, that it was not profitable enough to pay Ms. Kallen-Zury the tens of millions of dollars the government alleged, that there were no falsifications or alterations known to the witnesses, that she complied with the government’s request for documents, that Ms. Kallen-Zury did not alter patient registers, and medical testimony that the patient charts were internally consistent and the patients were properly admitted.
- The magistrate judge recommended denial of the §2251 motion finding certain witnesses not credible and the evidentiary value of others as minimal and finding that there was no prejudice because there was no reasonable probability that the proffered evidence would have changed the outcome of the trial. The district court then denied the motion.
- On appeal, the 11th Circuit found that the district court’s findings were not clearly erroneous. The Court went through each witness and found that there was no error in the magistrate’s findings of lack of credibility and of limited evidentiary value of each witness.
- Therefore, the district court did not err in concluding that the proffered witnesses would not have changed the outcome of the trial.
- Case Affirmed.

Case #4 – United States v. Cash, No. 21-10906 (11th Cir. Unpub. Dec.)(January 12, 2023)

Cash is a Safety valve and firearm enhancement case.
Mr. Cash pled guilty to possession with intent to distribute 50 grams or more of methamphetamine.
He was sentenced to a 120 month mandatory minimum sentence.
On appeal, he argues that the district court erred in applying the two level firearm enhancement under §2D1.1(b)(1) and in finding that he wasn’t safety valve eligible under §3553(f) and §5C1.2(a) of the guidelines.
So we start with the firearm enhancement. §2D1.1(b)(1) provides that if a dangerous weapon including a firearm was possessed during a drug trafficking crime, there is a two level enhancement.
- The commentary to that guideline states that the enhancement should be applied if the weapon was present, unless it is clearly improbable that it was connected with the offense.
- The government has the burden of proving the proximity of the weapon by a preponderance of the evidence. If they do so, the burden shifts to the defendant to show that a connection between the weapon and the offense was clearly improbable.
- Here, during a search of his residence, agents found a loaded handgun and seven grams of methamphetamine together in a safe that was in Mr. Cash’s upstairs bathroom.
- Unfortunately for Mr. Cash, 11th Circuit precedent establishes that proximity between guns and drugs, without more, is sufficient to meet the government’s initial burden.
- So, the burden shifts to Mr. Cash to show that it is clearly improbable that the gun, that was found right next to the meth, was connected to the possession with intent to distribute that meth.
- Mr. Cash cited United States v. Stallings, where police found three handguns in the defendant’s home and the court reversed the district court’s application of the enhancement because there was no nexus beyond mere possession between the firearms and the drug crime.
  - But in the Stallings case, there was no drug paraphernalia found in the home, only the gun. And there was no evidence that any of the conspiracy to distribute the drugs took place in the home. And the government didn’t prove that the firearms belonged to Mr. Stallings, as there were three other adults who lived in the house.
  - However, in Mr. Cash’s case, it was undisputed that the gun belonged to Mr. Cash and it was stored with the drugs in the same house where Mr. Cash engaged in drug activity.
- And it doesn’t matter if Mr. Cash has had the gun forever and didn’t brandish it or discuss it during any of the drug sales because it is enough that one of the reasons drug dealers have guns is for self defense based on the heightened danger of violence from selling drugs.
- So, the firearm enhancement sticks.
But what about safety valve?
- If Mr. Cash is safety valve eligible, he gets a two level reduction and breaks the mandatory minimum so the judge could sentence him under the 120 month mandatory minimum.
- But one of the eligibility requirements is that the defendant did not possess a firearm or other dangerous weapon in connection with the offense.
- And it is the defendant who must prove this by a preponderance of the evidence.
- And you may be thinking, if he got the firearm enhancement, wouldn’t he automatically not be eligible for safety valve. Not so fast.
  - Just because the §2D1.1(b)(1) firearm enhancement applies doesn’t necessarily mean the defendant possessed a firearm in connection with the offense for safety valve purposes. The burden is lower.
  - But the defendant must show that it is more likely than not that his possession of the firearm was not in connection with the offense.
  - Unfortunately for Mr. Cash, the 11th Circuit found that he was not able to meet that burden where the drugs and gun were found together in his bathroom safe.
  - Case Affirmed

Case #5 – United States v. Harrison, No. 21-14514 (11th Cir. Pub. Dec.)(January 10, 2022)

Harrison is a case about whether Georgia’s robbery statute is divisible and whether it qualifies as a crime of violence offense.
Mr. Harrison was charged with armed robbery in Georgia. He pled guilty to the lesser included offense of Robbery by intimidation.
He was later federally indicted for possession of a firearm by a convicted felon under 922(g).
The base offense level increases to 20 when the defendant has a prior felony conviction for either a crime of violence or a controlled substance offense. So, his guideline range ended up being 37-46 months.
Mr. Harrison argued to the district court that the Georgia robbery statute is indivisible and the least culpable conduct within that statute, robbery by sudden snatching is not a crime of violence, and therefore, his robbery conviction is not a crime of violence.
The district court agreed and found that his robbery conviction was not a crime of violence and his guidelines were reduced to 21 – 27 months.
The government appealed to the 11th Circuit arguing that the robbery statute is divisible and the trial court can determine which portion of the statute Mr. Harrison was convicted of, which was robbery by intimidation.
Georgia’s robbery statute states that a person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another:
- 1) by use of force;
- 2) by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another, or
- 3) by sudden snatching.
So, if the statute is indivisible, we use the categorical approach and we must look at the least culpable conduct that a person can be convicted of, which here is sudden snatching. If that least culpable conduct is not a crime of violence, then the conviction cannot be considered a crime of violence, no matter what the defendant actually did or was actually accused of.
If the statute is divisible, we use the modified categorical approach and we still can’t look at what the defendant is actually accused of or what he did, but we can look to the shepherd documents to determine which portion of the statute he was convicted of. So here, whether he was convicted of robbery by use of force, by intimidation, or by sudden snatching.
Here, Mr. Harrison contends that the use of force, intimidation, or sudden snatching are only alternatives listed, but they are all the same offense.
The government argues that the statute sets apart three separate offenses.
Both the government and Mr. Harrison agree that robbery by sudden snatching is not a crime of violence.
So, if the statute is divisible, and we use the modified categorical approach the government wins. If the statute is not divisible and we use the categorical approach, Mr. Harrison wins.
A statute is divisible if it lists separate elements as opposed to means.
To determine whether a statute includes elements or means, we first look to authoritative sources of state law. If the question isn’t answered, we move to the record of conviction, or sheppard documents, including the indictment and jury instruction. If the question is still not answered, the court will find the statute indivisible and use the categorical approach.
Here, the 11th Circuit determined that the Georgia robbery statute sets forth separate elements and therefore is divisible.
First, the Court noted that Georgia’s armed robbery statute includes robbery by intimidation as a lesser included offense, but excludes robbery by force and robbery by sudden snatching.
The Court also found that Georgia case law defines robbery by force, robbery by intimidation and robbery by sudden snatching differently.
So, for these reasons, the Court found that the Georgia statute is divisible. But the Court went further and noted that in Harrison’s case, the conviction noted Robbery by intimidation, rather than just robbery, and the pattern jury instructions tailor the instructions to each separate form of robbery, each indicating separate elements as opposed to means.
The Court next determined whether Robbery by Intimidation is a crime of violence.
- §4B1.2(a)(2) specifically includes robbery as enumerated crime of violence.
- But, if Georgia’s robbery statute is broader than the federal generic definition of robbery, then Georgia’s robbery by intimidation would not be a crime of violence.
- Here, however, the 11th Circuit determined that Georgia’s robbery by intimidation falls squarely within the federal generic definition of robbery.
- It requires property be taken from the person or the immediate presence of another, by intimidation, which is defined as “that terror likely to create an apprehension of danger, and induce a person to part with his property for the safety of his person.
- Good enough, says the 11th.
- Case Vacated and remanded.

Case # 6 – United States v. Madden, No. 21-13697 (11th Cir. Unpub. Dec.)(January 13, 2023)

Madden is a engaging in a pattern of activity involving sexual abuse or exploitation of a minor enhancement case.
And I didn’t think we could get any more bizarre than the Moran mom blog internet troll case, but here we go.
Mr. Madden was arrested for charges related to child pornography and, if you’re an animal lover, cover your ears, for videos of him having sex with an animal. To make matters worse, he was a veterinarian.
For these transgressions, Mr. Madden was sentenced to 262 months in prison.
On appeal, Mr. Madden argues that the district court erred by applying a five level enhancement to his guidelines for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor.
So, like so many of these cases, Mr. Madden appeared on law enforcement’s radar when they found online storage folders with child pornography, which they tracked back to him.
During a search of his home, agents found two cell phones that contained child pornography and videos of Mr. Madden molesting dogs.
They also found messages on his phone to a friend where he stated he had sex with children on multiple occasions. Some of the messages talked about a boy who turned 16 in 2019 and who Mr. Madden claimed to have had sex with during the last two years.
At the sentencing hearing, an agent testified that there was a video of Mr. Madden having sex with a 15 year old and that victim stated that he had sex two or three times with Mr. Madden. The agent concluded that the victim was under 16 when he had sex multiple times with Mr. Madden.
So, the district court applied the pattern of activity enhancement over Mr. Madden’s objection.
A “pattern of activity” is defined as any combination of two or more separate instances of conduct prohibited under various statutes, including §2243, which prohibits engaging in a sexual act with another person between 12 and 16.
Mr. Madden argues that the victim couldn’t remember how many times they had sex, pinpoint when they had sex, that his messages were simple bragging, and that the video was the only evidence that supported only one instance of sexual conduct with the victim before the victim turned 16.
But the 11th Circuit was unconvinced. The victim testified that they had sex multiple times before the victim turned 16. And even if the victim couldn’t remember details, doesn’t matter. The district court was free to determine that the victim’s statements were sufficient to establish a pattern of activity of sexual abuse.
Case Affirmed.

Case #7 – United States v. Miller, No. 20-10194 (11th Cir. Unpub. Dec.)(January 11, 2023)

Miller is a 922(g) possession of a firearm by a convicted felon case involving the legality of a traffic stop.
A detective in an undercover car saw Mr. Miller conduct what the officer believed was a drug sale with the passenger.
The detective saw Mr. Miller roll through a stop sign and called a marked unit to make a traffic stop for failing to come to a complete stop at a stop sign.
During the traffic stop, Mr. Miller appeared nervous and there was a large bulge in his front pocket, which the detective believed could be a gun.
The Detective asked Mr. Miller for his driver’s license and then gave the license to the uniformed officer to check for warrants.
The detective then ordered Mr. Miller to get out of the car and Mr. Miller initially refused.
After four more orders to get out of the car, Mr. Miller complied.
At that time, the detective was advised that Mr. Miller had an outstanding warrant.
The detective conducted a Terry pat down search and found that the bulge in Mr. Miller’s pocket was a gun.
Mr. Miller was handcuffed and the gun was removed.
Mr. Miller was charged with Possession of a firearm by a convicted felon under 922(g), he went to trial and he was convicted.
On appeal, Mr. Miller argues that the traffic stop and the duration of the stop was unlawful.
However, his attorney didn’t move to suppress the evidence and didn’t object to the admission of the firearm.
And there is no good cause why he didn’t raise these issues at the trial level at the appropriate time.
Therefore, he didn’t preserve the issue for appeal.
Mr. Miller also appealed the denial of his motion for judgment of acquittal.
But the 11th Circuit found that the evidence was sufficient to sustain the conviction.
After all, they did find the firearm in his pocket.
Case Affirmed.