Federal Criminal Case Law Update (September 26, 2022 – September 30, 2022)

by Lasnetski Gihon Law

The “Cite” of the Crime Podcast
CASE LAW SUMMARIES

Federal Criminal Case Law Update (September 26, 2022 – September 30, 2022)

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

OVERVIEW

13 cases
1 published decisions
12 unpublished decisions
3 compassionate release cases that we’re not going to talk about.

Case #1 – USA v. Conage, No. 17-13975 (11th Cir. Pub. Dec.)(September 30, 2022)

Conage is a case that determines whether Florida’s Trafficking qualifies as an Armed Career Criminal Act predicate offense.
Conage is an important case that affects both Florida criminal practitioners and federal criminal practitioners.
We first discussed Conage in Episode #4, Case #1, so go back and listen to that portion of that episode to get a more in depth look at Conage.
But basically, the 11th Circuit certified a question to the Florida Supreme Court.
The decision we discussed in Episode #4 was the Florida Supreme Court’s answer to that certified question.
Last week, in the decision we’re discussing today, the 11th Circuit issued its opinion in light of the answer to the certified question.
So, the question answered by the Florida Supreme Court was that for purposes of the Florida drug trafficking statute, 893.135(1)(b)(1), a completed “purchase” requires proof that the defendant both gave consideration for and obtained control of a trafficking quantity of illegal drugs and further that the requisite control consists of the same range of conduct that qualifies as constructive possession under federal law.
Because the Florida Supreme Court says that to be guilty of purchase of a trafficking amount of controlled substances, you must not only pay for it, but also possess it, at least constructively, this is sufficient to qualify as a predicate offense under federal law.
Therefore, the issue appears to be closed.
A Florida Trafficking conviction is a qualifying predicate offense under the Armed Career Criminal Act.
Case Affirmed.

Case #2 – Azmat v. USA, No. 20-14262 (11th Cir. Unpub. Dec.)(September 28, 2022)

Azmat is a Rule of Civil Procedure 60(b) motion treated as a successive 2255 motion case.
Mr. Azmat had his §2255 motion to vacate denied.
He subsequently filed a Rule 60(b) relief from judgment motion with the district court.
The district court denied it, finding that it was really just an impermissible §2255 post-conviction relief motion, which the district court did not have jurisdiction over because Mr. Azmat failed to obtain authorization from the 11th Circuit, as is required to file a successive 2255 motion.
When a pro se plaintiff brings a Rule 60(b) motion, the district court may construe it as a 2255 motion and if applicable treat it as an unauthorized second or successive motion.
Before a prisoner may file a second or successive 2255 motion, he must first obtain an order from the court of appeals authorizing the district court to consider the petition.
Without such authorization, the district court lacks jurisdiction.
Here, Mr. Azmat was simply trying to relitigate the issues denied in his first §2255 motion.
Case Affirmed.

Case #3 – Cesal v. USA, No. 19-15033 (11th Cir. Unpub. Dec.)(September 29, 2022)

Cesal is another successive §2255 motion case with a twist.
Mr. Cesal was convicted of possession with intent to distribute at least 1,000 kilos of marijuana .
He was sentenced to life in prison based on his guideline range of life in prison.
His conviction and sentence were affirmed on direct appeal, but the Supreme Court remanded for the 11th Circuit to reconsider the case under Booker.
After considering the Booker decision, the 11th Circuit reinstated its prior opinion and the Supreme Court denied certiorari.
Mr. Cesal filed a §2255 motion to vacate his sentence.
The District Court denied the motion and both the district court and 11th denied a certificate of appealability.
Ten years later, the government and federal public defender filed a joint motion for a sentence reduction under 3582(c)(a) based on reduced offense levels for marijuana.
Under the reduced offense levels from Amendment 782, Mr. Cesal’s guidelines would be 360 months to life rather than life.
Both the government and federal public defender recommended that Mr. Cesal’s sentence be reduced from life to 360 months.
The district court then entered an order reducing Mr. Cesal’s sentence to 360 months.
However, Mr. Cesal notified the district court himself that he never authorized the public defender to file the motion and he believed that this was the government’s way to undermine his pending clemency request and Mr. Cesal appealed the order reducing his sentence.
So, the district court entered an order vacating the order reducing his sentence and reinstating the original judgment sentencing Mr. Cesal to life.
Mr. Cesal subsequently filed a §2255 motion to vacate. Mr. Cesal alleged several grounds relating to the original judgment and sentence and stwo grounds relating to the later motion to reduce his sentence.
The district court denied the 2255 motion on the grounds that it was a second or successive 2255, which requires an order from the 11th Circuit authorizing it and because Mr. Cesal did not obtain that order, the district court was without jurisdiction to hear it.
Mr. Cesal appealed to the 11th Circuit arguing that his 2255 was either a first motion since his 3582(c) sentence reduction order or a first motion as to the district court’s order vacating its sentence reduction order and clarifying that he was subject to the original judgment and sentence.
- Mr. Cesal relied on Magwood v. Patterson, which held that where a state death sentence was vacated and the state court subsequently conducted a new sentencing proceeding where the court entered a new judgment, a §2255 challenging the second sentence is not a second or successive motion because it is the defendant’s first attack on the second sentencing proceeding and first attack on a new judgment against him that followed that proceeding.
However, the 11th distinguished Magwood, because here, Mr. Cesal is not challenging errors allegedly made during a second sentencing proceeding or a new judgment.
Further, the 11th Circuit recently held in Armstrong, that a sentence reduction under 3582(c) does not constitute a new, intervening judgment for purposes of the ban on second or successive 2255 motions because a sentence reduction does not constitute a de novo resentencing, but instead effects only a limited adjustment to an otherwise final sentence.
The 11th held that Armstrong definitively forecloses any argument that Mr. Cesal is entitled to file a new 2255 motion as a result of the district court’s order reducing his sentence.
Therefore, because neither of the district court’s orders created a new judgment subject to challenge in new §2255 motion, this 2255 was a second or successive motion requiring authorization from the 11th Circuit, which Mr. Cesal did not obtain and therefore the district court properly dismissed it.
Case Affirmed.

Case #4 – Johnson v. USA, No. 21-12000 (11th Cir. Unpub. Dec.)(September 27, 2022)

Johnson is a §2255 equitable tolling case.
Mr. Johnson filed an untimely §2255 motion to vacate his sentence.
Mr. Johnson filed his motion, which was based on the Supreme Court’s decision in United States v. Davis, more than one year after the Davis decision was rendered, which is the time limitation period set out in 2255(f)(3).
Mr. Johnson argued that he was entitled to equitable tolling of the time period because he suffered from renal failure, required dialysis three days a week, was subject to COVID-19 lockdowns in prison, and was given incorrect advice by a charitable organization to file in the wrong district.
The district court denied his motion as untimely and finding that equitable tolling did not apply.
Mr. Johnson appealed.
On appeal, the 11th noted that equitable tolling is an extraordinary remedy which is typically applied sparingly.
In United States v. Dodd, the 11th Circuit held that detention in a facility without access to legal papers is not extraordinary requiring equitable tolling.
In Mr. Johnson’s case, the 11th Circuit explained that he was not entitled to equitable tolling because he was able to file his motion in the wrong jurisdiction, undermining his argument that he was unable to timely file the motion; he did not explain why he could not timely file the motion despite not receiving dialysis on 4 of the days of the week, the Dodd decision foreclosed his argument lack of access to legal materials for part of the statute of limitations merited equitable tolling; and the charitable organization that gave him bad advice didn’t represent him and there was no argument that they engaged in misconduct that was more than egregious negligence.
Case Affirmed.

Case #5 – USA v. Chapman, No. 22-10816 (11th Cir. Unpub. Dec.)(September 30, 2022)

Chapman is a wire fraud and conspiracy to commit wire fraud sufficiency of the evidence case.
This was not a particularly well written decision explaining the Court’s basis for its decision, but we’ll discuss what they gave us.
Mr. Chapman appealed his convictions after a jury found him guilty of conspiracy to commit wire fraud and wire fraud.
Mr. Chapman argued on appeal that the government failed to prove that he knowingly agreed to participate in a fraud scheme and that the district court erred in failing to give his requested jury instruction or the court’s proposed instruction on the legal definition of a “transaction broker.”
Here, the 11th Circuit laid out the law as it relates to wire fraud, conspiracy and circumstantial evidence, but it failed to articulate what evidence was elicited at trial.
Conspiracy, under §1329 requires the government to prove three things:
- 1) A conspiracy existed,
- 2) the defendant knew of the conspiracy, and
- 3) the defendant knowingly and voluntarily joined it.
- A conspiracy is an agreement between two or more person to accomplish an unlawful plan.
Wire Fraud, under 1343, requires the government to prove two elements
- 1) intentional participation in a scheme to defraud, and
- 2) the use of the interstate wires in furtherance of that scheme.
The government may prove conspiracy or fraud by circumstantial evidence.
The government need not prove that the defendant knew all of the details or participated in every aspect of the conspiracy and it can satisfy its burden by showing that the defendant knew of the essential nature of the conspiracy.
However, the government must show circumstances from which a jury could infer beyond a reasonable doubt that there was a meeting of minds to commit an unlawful act.
Evidence that a defendant personally profited from a fraud may provide circumstantial evidence of an intent to participate in that fraud.
Here, without explaining what circumstantial evidence was established at trial, the 11th Circuit held that the evidence presented was sufficient to show that Mr. Chapman knowingly agreed to participate in a fraud scheme related to real estate closings.
The Court next addressed the jury instructions.
- A district court’s refusal to give a requested jury instruction is reviewed for an abuse of discretion.
- The district court should instruct the jury on the defendant’s defense theory if the theory has a foundation in evidence and legal support.
The failure of a district court to give an instruction is reversible error where the requested instruction was correct, was not substantially covered by the charge actually given, and dealt with some point in the trial so important that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.
Where the defendant does not request a specific instruction and fails to object at trial to the district court’s charge for failure to include specific instructions, the Court reviews for plain error.
The 11th Circuit looked at Georgia’s definition of a “transaction broker,” under the relevant Georgia statute.
Without saying what the omission was, the 11th then held that Mr. Chapman’s requested jury instruction contained an incomplete statement of law and therefore the district court did not abuse its discretion in denying his requested jury instruction.
Case Affirmed.

Case #6 – USA v. Coney, No. 21-13736 (11th Cir. Unpub. Dec.)(September 28, 2022)

Coney is an appeal waiver case.
Mr. Coney pled guilty pursuant to a plea agreement to 922(g) possession of firearm by a convicted felon and was sentenced to 120 months.
On appeal, Mr. Coney argued that the appeal waiver in the plea agreement was not valid because there was no consideration.
The 11th Circuit here held that even if consideration is required, the government provided sufficient consideration in this case.
The 11th Circuit precedent has held, with some exceptions, it will enforce defendants’ knowing and voluntary appeal waivers.
The Court has described plea agreements as contracts subject to basic contract law principles.
However, the Court has not addressed whether a failure of consideration would void an otherwise enforceable appeal waiver in a plea agreement.
But, because the Court found sufficient consideration in this case, it didn’t settle the question in this case either.
Here, the Court held that the government’s agreement not to object to a two level reduction for acceptance of responsibility and agreement to file a motion for an additional level was sufficient consideration.
With the three levels off, Mr. Coney’s guidelines fell from 151-188 months down to 120-150 months.
Mr. Coney argued that because he was sentenced to 120 months, which was the statutory maximum, he received no consideration.
However, the 11th disagreed. The fact that the government’s recommendations did not ultimately result in a reduced sentence, the plea agreement gave him a chance at reduced sentence, which is sufficient consideration.
Mr. Coney further argued that it wasn’t sufficient consideration because he was entitled to the acceptance of responsibility reductions, however, Guideline 3E1.1’s application note states, “A defendant who enters a guilty plea is not entitled to an adjustment under this § as a matter of right.
And for the third level down, the government must file a formal motion.
Case Affirmed.
But, the question of whether consideration is required for a plea agreement to be valid is still an open question in the 11th.

Case #7 – USA v. Gissendanner, No. 21-11254 (11th Cir. Unpub. Dec.)(September 28, 2022)

Gissendanner is a Batson racial juror strike case.
Mr. Gissendanner was convicted at trial of conspiracy to possess with intent to distribute meth and heroin.
he was sentenced to 480 months in prison.
On appeal, Mr. Gissendanner argued that the district court erred by finding she did not make a prima facie case that the government discriminatorily struck black jurors and she argues that her sentence was procedurally unreasonable.
During voir dire during a joint trial with her co-defendant, Mr. Gissendanner requested that the district court treat any objection made by either defendant as made by both defendants with equal applicability. The district court agreed as long as the objection was applicable to both defendants and not just one.
As an initial matter, the 11th Circuit held that this was sufficient to preserve the issue for Mr. Gissendanner for any objection made by her co-defendant.
The jury pool consisted of 30% black, 66% white, 2% Asian and 2% unknown.
9 black jurors were in the subset of jurors selected for the venire.
During voir dire, Juror 28, a black woman stated that she was a probation officer for Family Court, volunteered for the Alabama Justice Initiative advocating for prison reform, had a law degree, a master’s degree in criminal justice, knew several members of the defense team from her work, had a mother who was a recovering drug addict, was familiar with the correctional facility where Mr. Gissendanner was incarcerated when she engaged in the criminal activity because she saw numerous videos about violent incidents there.
Juror 28 stated that she would be able to set her knowledge aside and be neutral and unattached to parties.
Juror 10 stated during voir dire that he would not believe law enforcement on word along and would need to have body cam or something more than word alone.
He also stated he didn’t know if he could apply the same credibility standards to law enforcement witnesses as other witnesses.
But then he stated he would do his best and apply the same standard.
The government moved to strike Juror 10 for cause The defense objected. And the district court denied the government’s motion to strike for cause.
The defense then used two of its peremptories to strike two of the nine black jurors.
The government moved to strike four of the prospective black jurors including Juror 10 and Juror 28.
Mr. Gissendanner raised a Batson challenge to striking Juror 10, arguing that there was no race neutral reason to strike him because he stated he could be impartial.
The district court found that Mr. Gissendanner did not make a prima facie showing because Juror 10 said he disliked police and doesn’t give them the benefit of the doubt.
Because there was no prima facie showing, the district court did not ask the government for a raise neutral reason
Mr. Gissendanner’s co-defendant raised a Batson challenge on Juror 28 arguing that the government struck 4 of its 6 peremptories on black jurors and there was disparity in proportion of black jurors to other races.
The district court denied that challenge noting that Juror 28 believed that awful stuff was happening at the detention facility that was at issue in the case.
On the final jury, two of the 12 were black and 1 alternative was black.
On appeal, Mr. Gissendanner first challenged the district court’s denial of the Batson challenges.
- The Supreme Court in Batson established a three part inquiry for evaluating whether a peremptory strike was motivated by racial or ethnic discrimination.

First, the district court must determine whether the party challenging the peremptory strikes has established a prima facie case of discrimination by establishing facts sufficient to support an inference of racial discrimination.
Second, if the challenger has established a prima facie case, the burden then shifts to the striker to articulate a race neutral explanation for the challenged strike.
Third, the district court must determine whether the striker’s stated reasons were the actual reasons or instead were a pretext for discrimination.
The ultimate burden of persuasion rests with, and never shifts from the opponent of the strike.
In establishing a prima facie case, the defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal.
Rather, the defendant must point to circumstances that raise an inference that the government has exercised peremptory strikes to remove from the venire members of a particular racial group.
Relevant evidence includes the government’s pattern of striking venire members of one race, or questions or statements made during voir dire to members of a particular race that supports the inference of a discriminatory purpose.
As a matter of law, the fact that the government used four of its six peremptory strikes against black members of the venire standing alone is inadequate to establish a prima facie case.
Rather, the number of persons of a particular race struck takes on meaning only when coupled with other information such as the racial composition of the venire, the race of others struck, or the voir dire answers of those who were struck compared to the answers of those who were not struck.
Here, the defense failed to point to any other facts or circumstances other than bare numbers and no valid reason for removal to support an inference of improper racial discrimination.
Moreover, three black jurors including an alternate were seated on the jury.
Therefore, the district court’s denial of the Batson challenge for failure to present a prima facie showing by Mr. Gissendanner was not clearly erroneous.

The Court next addressed Mr. Gissendanner’s argument that her sentence was procedurally unreasonable.
- Here, the Court found that the district court adequately explained the reason for the sentence including the fact that Mr. Gissendanner was a leader and organizer of the drug operation, continued to maintain his innocence, and had a lengthy criminal history and the district court was not required to address each mitigation argument.
Case Affirmed.

Case #8 – USA v. Goodman, No. 21-12641 (11th Cir. Unpub. Dec.)(September 28, 2022)

Goodman is a supervised release revocation sentencing case addressing a new challenge to the criminal history category determination that was made during the original sentencing.
During his sentencing for violating his supervised release, Mr. Goodman argued that his criminal history category should be IV, rather than V.
The criminal history category for a guideline range based on a violation of supervised release is the category applicable at the time the defendant was originally sentenced to a term of supervision.
The criminal history category is not to be recalculated except in the rare case in which no criminal history category was determined when the defendant originally was sentenced.
The 11th Circuit has previously held that a defendant facing incarceration upon revocation of supervised release may not challenge the validity of his original sentence during the revocation proceedings.
Instead, such challenges may be raised only by collateral attack through a separate proceeding.
Here, the district court could not recalculate Mr. Goodman’s original criminal history category based on this new objection.
Instead, §7B1.4(a) of the sentencing guidelines required that the district court use the category determined at the time the defendant originally was sentenced to the term of supervision.
Case Affirmed.

Case #9 – USA v. Lutin, No. 21-12900 (11th Cir. Unpub. Dec.)(September 28, 2022)

Lutin is an upward variance substantive reasonableness of the sentence case.
Mr. Lutin was sentenced to the statutory maximum of 60 months for violating his supervised release.
On appeal, Mr. Lutin argues that his sentence was substantively unreasonable because the district court placed too much weight on the nature of his violation and ignored his mitigation.
While on supervised release, Mr. Lutin was required to participate in drug testing and a treatment program and to refrain from committing new offenses.
After three years on supervised release with no issues, Mr. Lutin tested positive for controlled substances on 5 occasions over a 2 ½ year period where he was given written reprimands but allowed to continue on supervised release.
However, he was subsequently arrested on a new law violation for selling cocaine while armed with a gun and his probation officer sought a warrant and recommended revocation of supervised release.
The allegations on the new law violation included driving toward a police officer where that officer had to jump out of the way to avoid being run over and fleeing from police.
Mr. Lutin was found in violation and his guidelines were 27-33 months.
The district court noted that his new offense was similar to his underlying offense, he attempted to escape law enforcement, damaged two police cars, fled the scene, and put officers at risk of serious injury.
The district court then sentenced Mr. Lutin to the maximum 60 months to be run consecutively to his new offense sentence.
Under §3583(e)(3), the district court may revoke a defendant’s term of supervised release and impose a term of imprisonment if the court finds by a preponderance of the evidence that the defendant violated a condition of supervised release.
When imposing a sentence, the district court must consider the §3553(a) factors.
Here, the 11th Circuit held that the district court properly considered the appropriate factors, stating that it considered the advisory sentencing range, pertinent policy statements, Lutin’s arguments in mitigation, similarly between his underlying offense conduct and new offense conduct, efforts to escape, damage to police property, and possibility of seriously injuring the officers.
Case Affirmed.

Case #10 – USA v. Ravelo, No. 21-1874 (11th Cir. Unpub. Dec.)(September 28, 2022)

Ravelo is a motion to withdraw plea case.
Mr. Ravelo argues that the district court erred in denying his motion to withdraw his plea on the basis that his attorney did not sufficiently explain the proceedings or examine the evidence and because he was factually innocent.
Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may withdraw a plea that the district court has already accepted if he shows a fair and just reason for doing so.
The district court should consider the totality of the circumstances, including whether:
- Close assistance of counsel was available]
- The plea was knowing and voluntary
- Judicial resources would be conserved
- The government would be prejudiced if the defendant withdrew his plea.
If the appellate court finds that the defendant received close assistance of counsel and knowingly and voluntarily entered his plea, they don’t give the judicial resources factor considerable weight or the fourth factor particular attention.
There is a strong presumption that the defendant’s statements made at the plea colloquy are true and the defendant bears a heavy burden to show that the statements he made under oath at the plea hearing were false.
A plea must comply with Rule 11 and inform the defendant of, among other things, his rights should he plead not guilty, the nature of the charges against him, the maximum and mandatory minimum penalties, the court’s obligation to impose special assessment, the court’s obligation to calculate advisory guideline range and consider possible departures and sentencing factors under 3553(a), and the terms of any appeal waivers in the plea agreement.
If the defendant is not a U.S. citizen, the court must inform him that he may be removed upon conviction, denied citizenship and denied reentry.
The court must also explain that a guilty plea waives the defendant’s trial rights and ensure that the plea is entered voluntarily and is supported by a sufficient factual basis.
Finally, the district court must explain that the defendant can be prosecuted for perjury if he lies under oath.
However, a district court’s failure to advise a defendant of each of Rule 11’s enumerated items is harmless error if it does not affect the defendant’s substantial rights.
Whether a Rule 11 error affect’s a defendant’s substantial rights depends on three core principles:
- 1) ensuring the defendant enters the guilty plea free from coercion
- 2) ensuring the defendant understands the nature of the charges
- 3) ensuring the defendant understands the consequences of the plea.
In this case, Mr. Ravelo was questioned during the plea colloquy under oath and informed of all the Rule 11 rights and he stated he understood each right, understood and spoke English, discussed the charges and plea agreement with his attorney, reviewed discovery, and affirmed that his plea was of his own free will.
Mr. Ravelo’s attorney confirmed that Mr. Ravelo communicated in English and had no trouble understanding the proceedings.
On appeal, Mr. Ravelo argued that his statements at the pela colloquy were not true and that his attorney did not discuss the plea agreement with him, he didn’t review all of the discovery and he didn’t fully understand the charges and proceedings.
The 11th Circuit relied on the record during the plea colloquy which is found refuted Mr. Ravelo’s arguments, especially in light of the strong presumption that his statements made under oath were true.
As for Mr. Ravelo’s claim of factual innocence, the 11th Circuit precedent is clear that a claim of factual innocence does not entitle a person to withdraw a plea.
Case Affirmed.

Case #11 – USA v. Reyes, No. 21-11286 (11th Cir. Unpub. Dec.)(September 27, 2022)

Reyes is a restitution order case involving appeal waiver and Eighth Amendment arguments.
Mr. Reyes pled guilty to mail fraud and aggravated identity theft pursuant to a written plea agreement where he agreed to make full restitution and waived his right to appeal, unless the sentence was above the statutory maximum, the sentence violated the Eighth Amendment, or the government appealed the sentence.
A restitution order for $442,368 was entered against Mr. Reyes.
On appeal, Mr. Reyes argues that his restitution order exceeds the statutory maximum and violates the Eighth Amendment.
The 11th Circuit noted that the restitution statute, 18 USC 3663 does not have a statutory maximum and Mr. Reyes cannot recast his argument that the district court erred by calculating the number of victims or amount of loss per victim because those arguments are precluded by the appeal waiver.
As for his argument that the restitution order violates the Eighth Amendment Excessive Fines Clause, the 11th Circuit found that the restitution was directly proportional to the offense because he was ordered only to pay the amount of actual loss to the victims.
A fine is excessive under the Eighth Amendment if it is grossly disproportional to the gravity of a defendant’s offense.
Here, the 11th Circuit didn’t need to determine whether the restitution qualified as a fine under the Eighth Amendment, because it could dispatch Mr. Reyes’ argument on the proportionality issue.
Because the restitution was proportionate, it did not violate the Eighth Amendment.
Case Affirmed.

Case #12 – USA v. Turner, No. 21-11622 (11th Cir. Unpub. Dec.)(September 29, 2022)

Turner is a traffic stop suppression motion case.
Mr. Turner was driving a tractor trailer hauling a Chevy Avalanche on I-65 in Alabama.
He was driving in the passing lane for a mile and half without passing other vehicles and veered over a fog line twice, both of which are violations of Alabama law.
A police officer pulled him over and observed Mr. Turner driving and his girlfriend in the passenger seat.
Mr. Turner told the officer that he was moving from Texas to South Carolina.
He stated that he owned the Chevy but the transmission wasn’t working, so he leased the tractor trailer to haul the Chevy.
The officer thought this was odd because his family was in the trucking business and typically vehicles would either be hauled to the northeast of the country and auctioned vehicles would be brought back or there would be a load of vehicles rather than just one which was not economical.
The officer obtained Mr. Turner’s license, but told him that he was not going to issue a ticket for the passing lane violation.
Mr. Turner told the officer that he had just been stopped by an officer in Mobile Alabama for a courtesy check.
The officer asked Mr. Turner to come back to his patrol car so the officer could check his license for information on the traffic stop.
On the way, the officer asked about the tractor trailer and Mr. Turner stated that Racine Auto Sales previously owned the vehicle, but it was bought by JLG Carriers. The logo on the side of the truck was for a third company, F&A. Mr. Turner explained that they had a leasing agreement with Jlg.
The officer thought this was odd as well because trucking companies don’t commonly change names and criminal organizations tend to rename their companies to avoid suspicion.
The officer also thought that it didn’t make sense to haul his personal vehicle from a fuel consumption perspective.
The officer observed that Mr. Turner appeared nervous, speaking quickly, not making sense and his chest was heavily rising and falling.
The officer also observed that Mr. Turner’s girlfriend appeared frozen staring out of the window and not wanting to make eye contact.
After 12 minutes into the stop, the officer returned Mr. Turner’s documents.
Mr. Turner asked the officer for documentation verifying that he had been stopped.
The officer started typing a written warning and asked Mr. Turner questions about the vehicles including whether anything illegal was inside and whether there were any hidden compartments, which Mr. Turner answered in the negative.
18 minutes into the stop, the officer asked for consent to search the vehicles.
Mr. Turner said no and a police canine was deployed.
The canine alerted to the passenger side door and gas tank area of the tractor trailer.
Upon search, the officer discovered 31.9 kilos of cocaine and firearm.
Mr. Turner filed a motion to suppress the evidence arguing that the officer unlawfully prolonged the stop in violation of the 4th Amendment.
The district court denied the motion and Mr. Turner had a stipulated bench trial preserving his right to appeal.
The district court found Mr. Turner guilty and he appealed the denial of the motion to suppress.
The 11th Circuit started with the law.
Consistent with the Fourth Amendment, a police officer may conduct a brief investigative stop when the officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.
Reasonable suspicion is determined based on the totality of the circumstances, including both the content of information possessed by police and its degree of reliability.
In deciding whether reasonable suspicion existed at the pertinent tiem, the courts consider whether reasonable suspicion existed objectively under the circumstances.
An officer’s subjective motivations are immaterial to whether a traffic stop is reasonable under the 4th Amendment.
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 officer’s experience when examining the totality of the circumstances.
Even when reasonable suspicion exists to make a traffic stop, police do 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
An officer’s mission during a traffic stop includes ordinary inquiries incident to the traffic stop, such as checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.
Here, the 11th Circuit held that the officer’s questions about travel plans were ordinary inquired related to the traffic stop.
As the officer asked the questions, Mr. Turner’s conduct created a reasonable suspicion beyond the traffic infraction.
Mr. Turner was nervous, stated that he was moving, but there was no visual indication he was moving in either vehicle, and the use of the tractor trailer was unusual.
Under these facts, the Court found that there was reasonable suspicion of criminal activity and the officer could ask additional questions beyond those typically asked during a traffic infraction.
Therefore, the stop was not unlawfully prolonged.
Case Affirmed.

Case #13 – USA v. Valencia, No. 21-13758 (11th Cir. Unpub. Dec.)(September 30, 2022)

Valencia is an MDLEA Conspiracy to possess with intent to distribute 5 kilos or more of cocaine aboard a vessel subject to the jurisdiction of the United States case.
Article I of the Constitution empowers Congress to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.
Congress enacted the MDLEA to prohibit the knowing and intentional possession with intent to distribute a controlled substance onboard a vessel subject to the jurisdiction of the United States.
A vessel is subject to the jurisdiction of the United States when it is a vessel without nationality or a vessel registered in a foreign nation that has consented to, or waived objection to the defendant’s prosecution in the United States.
A vessel without nationality includes a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.
A person charged with a violation of the MDLEA does not have standing to raise a claim of failure to comply with international law as a basis for a defense.
Such a claim may be made only by a foreign nation, and does not divest a court of jurisdiction.
Any battle over the United States’ compliance with international law in obtaining MDLEA jurisdiction should be resolved nation to nation in the international arena, not between criminal defendants and the United States in the U.S. criminal justice system.
The 11th Circuit has previously held that Congress did not exceed its power under the Felonies Clause in enacting the MDLEA.
In this case, because Mr. Valencia did not raise the issue at the trial court level, the plain error standard applied and he could not cite any binding precedent that directly addressed the specific issue of personal jurisdiction under §70502(d)(1)(C), therefore, there is no plain error.
However, even if the Court reviewed the issue de novo, the Court has consistently found that the MDLEA is a permissible exercise of congressional power under the Felonies Clause.
Case Affirmed.

Compassionate Release Cases Not Discussed on Podcast

USA v. Anderson, No. 21-13344 (11th Cir. Unpub. Dec.)(September 27, 2022)

USA v. Erwin, No. 21-11219 (11th Cir. Unpub. Dec.)(September 28, 2022)

USA v. Moss, No. 21-126008 (11th Cir. Unpub. Dec.)(September 29, 2022)