Federal 11th Circuit Criminal Case Law Update (November 28, 2022 - December 2, 2022) — Jacksonville Criminal Lawyer Blog

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CASE SUMMARIES

Federal 11th Circuit Criminal Case Law Update
(November 28, 2022 – December 2, 2022)

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OVERVIEW

5 cases
1 published decisions
4 unpublished decisions

Case #1 – United States v. Trump, No. 22-13005 (11th Cir. Pub. Dec.)(December 2, 2022)

Trump is an appeal out of the Southern District of Florida stemming from the search warrant executed on Donald Trump’s Mar-a-Lago home.
As Trump’s presidential term came to an end, he had movers transfer documents from the White House to his Mar-a-lago residence.
The National Archives and Records Administration subsequently contacted Trump to obtain missing presidential records pursuant to the Presidential Records Act.
The Administration and Trump’s attorneys went through months of negotiations and Trump transferred 15 boxes of documents to the National Archives.
The boxes contained newspapers, magazines, articles, photos, notes, presidential correspondence and classified records.
The National Archive notified the Department of Justice about the classified documents and then notified Trump that it planned to provide the FBI access to the contents of the 15 boxes.
The FBI reviewed the records and found 184 documents that were classified, including 25 classified as top secret.
The FBI obtained information that there were more classified documents at the Mar-a-lago residence so they obtained a grand-jury subpoena and served it on Trump.
Trump’s attorney provided the FBI with an envelope wrapped in tape which is consistent with the handling procedures for classified documents.
The envelope contained 38 classified documents including 17 that were classified as top secret.
The envelope also contained a declaration that there was a diligent search and any and all responsive documents had been produced.
The FBI again obtained information that still more classified documents remained at the residence, so the Department of Justice sought a search warrant and a magistrate issued the warrant.
The warrant affidavit set out a protocol to create a Privilege Review Team where agents who were not participating in the investigation would review the material to protect Trump’s attorney-client privilege.
The FBI executed the search warrant and seized approximately 13,000 documents.
Within those 13,000 documents, over one hundred were marked confidential, secret or top secret.
Three documents marked classified were found in Trump’s desk.
Trump subsequently filed a Motion for Judicial Oversight and Additional Relief asking the district judge to appoint a special master, enjoin review of the documents until that special master was appointed, require the government to give a detailed list of the seized items, and to order the government to return items not within the scope of the search warrant.
The Motion was filed as a civil filing with no statement of how the district court had jurisdiction, but did state that it was a precursor to a Rule 41(g) motion, which allows a person subject to an illegal search and Sigurd to get their property back.
Trump’s attorneys subsequently argued that the court had equitable and ancillary jurisdiction.
The district court decided that it would appoint a special master and would require the government to provide a detailed list of seized items relying on its inherent authority and Rule 53(b)(1) which states, Before appointing a master, the court must give the parties notice and an opportunity to be heard.
In the district court’s order, it barred the government from using any of the seized documents until the special master could review them.
The district court relied on equitable jurisdiction and inherent supervisory authority.
The government filed a notice of appeal and a motion for a partial stay of the injunction so it could continue to use the documents.
The district court denied the partial stay and appointed a special master.
The government then sought a partial stay from the 11th Circuit, which granted the stay concluding that the district court likely had no equitable jurisdiction to issue the order.
Trump applied for relief with the Supreme Court and that was denied.
On appeal, the 11th Circuit concluded that the district court lacked jurisdiction to consider Trump’s motion and to issue any orders relating to that motion.
In its opinion, the 11th Circuit repeatedly stressed how rare equitable jurisdiction is.
It is appropriate only in exceptional cases where equity demands intervention.
It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.
The 11th Circuit developed four factors in Richey v. Smith when determining whether a court can exercise equitable jurisdiction in the case of seizure of property.
- 1) whether the government displayed a callous disregard for the plaintiff’s constitutional rights,
- 2) whether the plaintiff has an individual interest in and need for the material whose return he seeks
- 3) whether the plaintiff would be irreparably injured by denial o the return of the property, and
- 4) whether the plaintiff has an adequate remedy at law for the redress of his grievance.
Here, applying the four Richey factors, the 11th Circuit determined that a decision in favor of Trump would allow any subject of a search warrant to invoke a federal court’s equitable jurisdiction.
Applying the first Richey callous disregard factor, the 11th Circuit looked at the district court’s finding that there had not been a callous disregard for Trump’s constitutional rights and looked at the fact that Trump did not contest that finding, and found that the record showed no callous disregard and therefore Trump had not established the first Richey factor.
As to the second Richey factor of having an individual interest and need for the documents, the Court found that the relevant inquiry is if he needs the documents.
- Trump’s passports were seized, but they were returned, but his brief did not explain what other documents he needed or why he needed them.
- And because specific documents weren’t identified and because he did not lay out how he would be harmed by their seizure and retention, this factor weighs against Trump as well.
So, the Court turned to the 3rd Richey factor – whether Trump would be irreparably injured by denial of return of the property.
- The district court identified the harm to Trump in the form of possible disclosure of sensitive information to the public, the government’s potential use of privileged materials, and the stigma associated with the threat of future prosecution.
- However, the 11th Circuit found that disclosure of sensitive information would harm the United States and its citizens, not Trump.
- And the findings of the district court would apply to nearly every seizure following a search warrant.
- Therefore, the Court found that the district court’s reasoning did not support extraordinary jurisdiction.
- So the third Richey factor weighs against Trump.
So, on to the fourth Richey factor – whether Trump has an adequate remedy at law for the redress of the grievance.
- Here, the 11th Circuit rejected the district court’s reasoning that Trump would have no legal means to obtain his property and no knowledge when it would be returned.
- The Court found that this was not a sufficient justification because it would apply in every search warrant seizure case.
- And the fact that the court was dealing with presidential and/or personal documents didn’t alter the analysis at all.
- Trump didn’t allege that any of his rights were violated and if there is no constitutional violation, then there is no harm to be remedied.
- And it doesn’t matter that the search involved a former president.
- The Richey test has been in place for nearly fifty years; its limits apply no matter who the government is investigating.
So, finding that all four Richey factors weighed against Trump, the 11th Circuit vacated the district court’s order and remanded for the district court to dismiss the civil action.
Order vacated and Case Remanded.

Case #2 – United States v. Mencia, No. 18-13967 (11th Cir. Unpub. Dec.)(November 30, 2022)

Mencia is a remand from the U.S. Supreme Court in light of Ruan v. United States.
Dr. Mencia was a licensed physician who owned and operated a geriatric clinic, but prescribed an unusually high amount of pain medications.
He had what he called Code G patients who didn’t have insurance, would pay in cash and would be prescribed Percocet, Xanax and Soma, known as the Holy trinity.
Dr. Mencia would pre-sign prescriptions and would have his assistants fill out the prescriptions without Dr. Mencia ever having seen or examined many of the patients.
This went on for a while until a pharmacist who was filling the prescriptions notified the DEA about the inordinate amount of oxycodone prescriptions coming from Dr. Mencia.
Dr. Mencia was charged with conspiracy to commit health care fraud and several other charges.
He was convicted, his appeal was affirmed on initial direct appeal and then the U.S. Supreme Court granted Mr. Mencia’s pro se petition for writ of certiorari based on its recent decision in Ruan.

The Supreme Court vacated the 11th Circuit’s judgment and remanded for consideration of the Ruan decision.
On remand, the 11th Circuit addressed the three initial arguments that the court originally rejected and a new argument on the sufficiency of the jury instructions in light of Ruan.
Dr. Mencia first argued that the evidence was insufficient to support his conviction as to whether he knowingly or willingly distributed oxycontin in an unauthorized manner.
- §841 makes it illegal for anyone to knowingly or willingly distribute a controlled substance.
- But what about doctors? Don’t they distribute controlled substances on a daily basis?
- Yes. and there is an exception for licensed health care professionals as long as the prescription is for “a legitimate medical purpose in the usual course of professional practice.”
- So, to convict a doctor, the government must prove that the doctor dispensed controlled substances for other than legitimate medical purposes in the usual course of professional practice, and that he did so knowingly and intentionally.
- The Court has interpreted this to mean that the distribution is unlawful if the prescription was not for a legitimate medical purpose or the prescription was not made in the usual course of professional practice.
- In Ruan, the Supreme Court held that the government must also prove that the doctor knew that the prescriptions were unauthorized.
- So, the knowing mens rea not only goes to distribution but also to whether the distribution was unauthorized.
- Here, even in light of Ruan, the 11th Circuit held that the evidence was sufficient to convict Mr. Mencia.
- He prescribed an inordinate amount of holy trinity drugs for cash for select patients that he didn’t examine and those patients displayed obvious signs of drug seeking behavior according to the Court’s reading of the record.
- So, the Court determined that the evidence was sufficient to establish not only that Mr. Mencia knowingly distributed the controlled substances, but also that he knew that the prescriptions were unauthorized.
The Court next turned to Mr. Mencia’s second claim that the trial court erred in allowing a doctor to testify as an expert in an area that was outside her scope of professional practice.
- Under Federal Rule of Evidence 704(b), in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.
- The expert cannot expressly state a conclusion that the defendant did or did not have the requisite intent, but can provide an opinion as to facts that support such a conclusion.
- Here, the doctor expert testified that the prescriptions Dr. Mencia prescribed did not have a medical legitimate need.
- The doctor expert testified about Florida law relating to what is and is not professional practice and gave the opinion that Dr. Mencia was acting outside that scope.
- The 11th held that the doctor expert’s testimony was perfectly fine because she didn’t testify that Dr. Mencia knowingly and intentionally acted outside the scope of professional practice, only that he violated Florida law and acted outside the scope.
- So, apparently, if she doesn’t use the term “knowingly,” in her testimony, she was good to go. She could testify as to her opinion about what he did, just not what he knew.
- Dr. Mencia also argued that the doctor expert’s statement that a specific Florida statute carries criminal penalties should have been stricken as an incorrect statement of law.
  - Here, the Court held that any error was harmless because whether there were criminal penalties under that state statute is immaterial to whether Dr. Mencia acted within the standards of professional practice and there was overwhelming evidence of his guilt.
- Another argument of Dr. Mencia’s was that the district court erred in not granting a Daubert hearing to determine the admissibility of the expert testimony and that the disclosures by the government were untimely..
  - In Daubert, the U.S. Supreme Court held that expert testimony is admissible under Federal Rule of Evidence 702 if the expert is qualified, the expert’s methodology is reliable and the testimony assists the trier of fact.
  - As for methodology, courts should look at:
    - Whether it can be, and has been, tested,
    - Whether the theory or technique has been subjected to peer review and publication
    - The known or potential rate of error,
    - The existence and maintenance of standards controlling the technique’s operation, and
    - General acceptance.
  - To determine whether the expert’s methodology meets the Daubert standards, a district court can, but is not required, to conduct a Daubert hearing.
  - Here, the Court held that a Daubert hearing was not necessary and the government provided ample evidence of the expert’s qualifications and the resources that he relied on, including applicable law and published sources generally accepted in the medical community.
  - And the defense did not provide conflicting medical literature or expert testimony that may have warranted a Daubert hearing.
  - As to the timeliness of the government’s disclosures, Federal Rule of Criminal Procedure 16(a)(1)(G) requires, at the defendant’s request, the government to give a defendant a written summary of any expert testimony it intends to use.
    - The Court will not reverse an untimely disclosure unless the defendant’s substantial rights are prejudiced.
    - The defendant must prove that the untimely disclosure adversely affected the ability to present a defense.
    - Here, the experts were disclosed less than two weeks before trial and one month after they were requested in writing by the defense.
    - But, Dr. Mencia did not establish prejudice.
      - The government agreed to a continuance, which was declined by Dr. Mencia.
      - Dr. Mencia presented a rebuttal witness to the experts.
      - And he had time to obtain the government expert’s disciplinary records to use during cross examination.
      - And even if the disclosures were vague, Dr. Mencia was not prejudiced because he presented conflicting testimony from his expert witness.
Dr. Mencia next argued that the Controlled Substances Act is unconstitutionally vague, but his argument is foreclosed by United States v. Collier, where the 11th Circuit held that doctors had sufficient notice of what conduct violates the statute through the phrase, “in the course of his professional practice.”
Therefore, the statute is not unconstitutionally vague.
Then the Court came to the meat of the remand on the Ruan decision.
- Dr. Mencia argued that the good faith defense jury instruction given to the jury did not comply with the Ruan decision.
- Only one problem. Dr. Mencia is the one who asked for that jury instruction.
- So, he invited the error and therefore waived his claim.
- But, the 11th Circuit still went through an academic exercise of dismantling his claim even if he did not waive the issue.
  - Ruan held that the government must prove that the doctor knew the prescriptions were unauthorized, but the Supreme Court did not discuss whether the current jury instructions complied with its decision.
  - In other words, the Supreme Court didn’t address whether the current instructions were sufficient to instruct the jury that the government must find that Dr. Mencia knew the prescriptions were unauthorized or whether the error was harmless, if there was error.
  - So, on the merits of Dr. Mencia’s argument, the 11th Circuit found that the good faith instruction tendered to the jury required them to determine whether the government proved beyond a reasonable doubt that Dr. Mencia knew that the prescriptions were not authorized.
  - The instruction specifically stated that the government must prove that Dr. Mencia knew the unlawful purpose of the plan and willfully joined in it.
  - Therefore, the 11th Circuit found that the instruction required the government to prove that Dr. Mencia knew the prescriptions were unauthorized.
- So, Dr. Mencia lost on both accounts. He waived the issue by inviting the error, and even if he hadn’t, he lost the argument on the merits.
- Case Affirmed.

Case #3 – United States v. Noda, No. 21-13899 (11th Cir. Unpub. Dec.)(November 29, 2022)

Noda is a 6th amendment Confrontation Clause case involving Zoom testimony.
Ms. Noda was charged with multiple counts of wire fraud and aggravated identity theft.
At a status conference in June of 2021, Ms. Noda requested a trial in two months because she was pregnant.
About a month later, Ms. Noda filed a motion for continuance to allow the defense more time to prepare. That continuance was denied.
Ms. Noda’s attorney subsequently filed a Notice of Trial Conflict and the district court reset the trial date for the next week.
At another status hearing, Ms. Noda again requested a continuance citing COVID and the fact that she was pregnant.
The district court denied the motion based on the safety protocols it had put in place including a face mask requirement and social distancing requirements.
Ms. Noda filed another motion for continuance again citing COVID and that motion was too denied.
There were subsequent back and forth motions and orders and the case went to trial at the scheduled time.
During a four day trial, eleven witnesses testified.
Ms. Noda worked for a landscape maintenance company and she was responsible for processing payroll.
One day when Ms. Noda wasn’t at work, another employee discovered that Ms. Noda had payroll checks made out to terminated employees and routed the funds to her checking account.
During the trial, the government alerted the court that one of its witnesses who had already testified came down with COVID after testifying, but they wanted to recall the witness to testify about an online chat thread that they just learned about.
The government wanted the witness to testify via Zoom.
Noda objected, but the district court allowed the Zoom testimony.
The witness then testified via video that he had an online chat with someone from Noda’s employment with a username of “Cristi” where “Cristi” asked if she could have certain paystubs received electronically, while others were received by paper.
The witness testified that he answered that all of the pay stubs had to be electronic or all of them had to be by paper.
Ms. Noda was found guilty on all counts and sentenced to the top end of the 70 months with a guideline range of 61-70 months.
On appeal, Ms. Noda argued that her 6th Amendment right to confront witnesses against her was violated when the trial court allowed the witness to testify via video, as opposed to in person.
- In general, the Confrontation Clause guarantees a defendant a face to face meeting with witnesses appearing before the trier of fact.
- Here, the 11th Circuit determined whether any error was harmless.
- The Court addressed the Delaware v. Van Arsdall factors.
  - 1) the importance of the witness’ testimony in the prosecution’s case,
  - 2) whether the testimony was cumulative,
  - 3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,
  - 4) the extent of cross examination otherwise permitted, and
  - 5) the overall strength of the prosecution’s case.
- Here, the Court held that any error was harmless.
  - First, the testimony was undisputed, cumulative and of minimal value to the prosecution’s robust case.
  - Other witnesses could have offered the same evidence, there was no indication that the witness had any unique, specialized knowledge or expertise about the evidence and Ms. Noda was allowed to cross examine the witness at length.
- The Court next turned to Ms. Noda’s claim that the district court erred in denying her motions for continuance.
  - Trial courts are afforded great latitude with respect to scheduling, and judges enjoy broad discretion in ruling on motions for continuance.
  - Error only arises when the denial is arbitrary and unreasonable and severely prejudices the moving party.
  - Here, the Court held that Ms. Noda showed no prejudice.
- Finally, the Court held that Ms. Noda’s sentence was substantively reasonable because it was well below the statutory maximum and was within the guideline range
Case Affirmed.

Case #4 – United States v. Vedrine, No. 20-13259 (11th Cir. Unpub.)(November 29, 2022)

Vedrine is a search warrant suppression of evidence case involving delay.
Mr. Vedrine was arrested for driving a stolen vehicle.
During an inventory search, officers found 7 recoded credit cards, 2 fake IDs and 2 Target credit card applications.
Miami Dade police seized three cell phones and then contacted the Secret Service to notify them of what was found.
14 days after arrest, a Secret Service agent obtained a search warrant for the seized phones.
The data was extracted, but it wasn’t analyzed for 21 days.
In the meantime, law enforcement executed another search warrant on Mr. Vedrine’s apartment and obtained additional incriminating evidence.
Mr. Vedrine moved to suppress evidence obtained from the searches of his phones and his apartment and that motion was denied after a hearing.
Mr. Vedrine was convicted and he appealed to the 11th.
Mr. Vedrine’s first argument was that the 14 day delay between his arrest and the issuance of the search warrant for the contents of the phones was an unreasonable violation of the Fourth Amendment.
- The Court addressed the relevant reasonableness factors in determining whether a search and seizure meets constitutional muster.
  - 1) the significance of the interference with the person’s possessory interest;
  - 2) whether the individual consented to the seizure,
  - 3) the duration of the delay,
  - 4) the government’s legitimate interest in holding the property as evidence, and
  - 5) whether law enforcement diligently pursued their investigation.
    - When determining whether law enforcement was diligent, the Court looks at:
      - the nature and complexity of the investigation,
      - The quality of the warrant application and amount of time the Court expects such a warrant would take to prepare, and
      - Any other evidence proving or disproving law enforcement’s diligence in obtaining the warrant.
  - There is no bright line rule. The 11th Circuit has determined that a 21 day delay was unreasonable where the officer didn’t see any urgency and traveled out of state for training, which it has held a 25 day delay to be reasonable where the officer exchanged edits with a prosecutor and there was a very substantial amount of information in the final warrant.
  - Here, the Court held that the government had a legitimate interest in holding the phones as evidence, there was substantial evidence of sophisticated fraud and every reason to believe that the phones contained evidence of that fraud, and the agent was diligent because she immediately began investigating Mr. Vedrine, she started drafting the warrant within 2 days, ordered and examined a surveillance video, followed leads, exchanged edits with the AUSA, drafted a memo to Miami Dade Police to obtain the cell phones from them and completed the warrant affidavit which contained information from the previous steps.
  - Therefore, the Court held that the 14 day delay was not unreasonable.
Mr. Vedrine’s second argument was that the search warrant for the apartment lacked probable cause because it relied on information obtained from the search of the phones.
- The Court quickly did away with this fruit of the poisonous tree argument, finding that because there was no unreasonable delay relating to the phones, there was no poison to taint the fruit.
- So this argument was rejected.
Mr. Vedrine’s third argument was that the search of the phones was unreasonable because the data wasn’t analyzed for 21 days after it was extracted.
- Federal Rule of Criminal Procedure 41(e) governs warrant execution and subsection (e)(2)(A)(i) requires that the warrant be executed within a specified time no longer than 14 days.
- Rule 41(e)(2)(b) controls warrant execution for electronically stored information, and provides that the time for executing the warrant refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or reviewing.
- Here, the Court held that the data extraction was completed within the Rule’s 14 day deadline.
- The Rule clearly allows for the later review of that timely extracted data.
- Once the data is extracted, the warrant is considered executed for Rule 41 purposes, and law enforcement may analyze the data at a later date.
- How long after the extraction is too long?
  - The Court didn’t answer that question but did say that a months long delay is clearly different than the weeks delay in this case.
- So, the Court upheld the reasonableness of the searches and rejected Mr. Vedrine’s arguments.
Mr. Vedrine also argued that Capital One does not qualify as a victim under the MVRA.
- But Mr. Vedrine only filed one Notice of Appeal after a first judgment was entered.
- A subsequent amended judgment was entered adding the restitution amount.
- But Mr. Vedrine never filed a Notice of Appeal from that amended judgment.
- Rule 4(b) requires an appellant to file a separate notice of appeal from an amended judgment even if a notice of appeal from an earlier judgment is already pending.
- This is a claims processing rule, so if the government raised it, the Court must dismiss.
- What do you think the Government did?
- Issue dismissed
So, Case affirmed in part, dismissed in part, judgment vacated and remanded to correct a clerical error.

Case #5 – United States v. Yauger, Jr., No. 21-13099 (11th Cir. Unpub. Dec.)(November 28, 2022)

Yauger is an upward variance challenge to the guidelines calculation case.
Law enforcement received a call about a shooting where the caller identified the vehicle.
When an officer observed the vehicle, he attempted to pull it over.
A man fled from the passenger seat and was carrying a rifle.
Shortly thereafter, someone called 911 and told the dispatcher that he would kill the police if they didn’t back off.
Mr. Yauger also used racially provocative language during the call.
The police obtained an arrest warrant for Mr. Yauger for attempted murder, making terrorist threats and attempting to elude.
A few months later, police were executing the arrest warrant when they found Mr. Yauger in a shed.
Mr. Yauger surrendered without incident.
Officers found five guns, thousands of rounds of ammo, and marijuana.
They also found a jammed .308 caliber rifle and a loaded .22 rifle hanging just outside the door of the shed.
He had a prior felony conviction, so he was charged with 922(g) possession of a firearm by a convicted felon.
Mr. Yauger pled guilty and at sentencing the district court applied a four level enhancement under §2K2.1(b)(6)(B) for using or possessing any firearm or ammunition in connection with another felony offense.
The predicate felony offense was determined to be possession of marijuana for other than personal use under Alabama Code §13A-12-213.
Mr. Yauger objected, arguing that the marijuana was only for personal use.
He also argued that there was no nexus between the possession of the firearms and the possession of marijuana. He claimed that the guns were for hunting.
Without the enhancement, his guidelines would have been 30-37 months.
With the enhancement, his guidelines were 46-57 months.
The district court overruled the objection, applied the enhancement and sentenced Mr. Yauger to 90 months, varying upward.
The district court also made the statement, “the only reason why there wasn’t a shootout at the place was because the gun apparently jammed.”
Mr. Yauger appealed, arguing first that the district court’s statement about the shootout was not supported by the evidence.
- But the 11th Circuit disagreed.
- The Court noted that the district court stated that it would have upward varied regardless of whether Mr. Yauger intended to have a shootout, because he was basing it on the fact that Mr. Yauger was set up to have a shootout.
- And the Court found that the district court did not clearly err by applying an upward variance because it found Mr. Yauger was set up for a shootout.
- Mr. Yauger was wanted for attempted murder, he threatened to kill the police officers if they didn’t back off, he used racial epithets, he was found in a shed with five guns and thousands of rounds of ammunition and the police did not back off and instead pursued him and found him with everything he needed to carry out the threat.
Mr. Yauger next argued that the district court erred in applying a four level enhancement for possessing a firearm in connection with a possession of marijuana for other than personal use offense.
- In applying the four level enhancement, the district court gave a Keane statement stating that it would have applied the same sentence even if the four level enhancement didn’t apply.
- So the Circuit Court simply looks at the guidelines as if the enhancement hadn’t been applied and determines whether the sentence is unreasonable based on those lower guidelines.
  - And, as is par for the course, the Court determined that the 90 month sentence was reasonable even under the lower guideline range of 30-37 months.
  - Mr. Yauger had an outstanding warrant out for attempted murder and terroristic threats, had multiple firearms and large amounts of ammunition.
  - So, the upward variance was appropriate, according to the 11th.
- Case Affirmed.