Federal 11th Circuit Criminal Case Law Update (October 10, 2022 – October 14, 2022)

The “Cite” of the Crime Podcast
CASE SUMMARIES

Federal 11th Circuit Criminal Case Law Update
(October 10, 2022 – October 14, 2022)

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OVERVIEW

• 5 cases
• 0 published decisions
• 5 unpublished decisions

Case # 1 – Pagan v. USA, No. 21-12328 (11th Cir. Unpub. Dec.)(October 14, 2022)

• Pagan is a Distribution of heroin and fentanyl resulting in death jury instruction and admissibility of co-conspirator statements case. 
•  Ms. Pagan was charged with selling heroin and fentanyl to Jackylin Bonifacio who then sold it to Kaylei Jones. 
• In Count I, she was charged with Conspiracy to possess with intent to distribute one kilo or more of heroin and fentanyl.
• In Count II, she was charged with Distribution of heroin and fentanyl resulting in death. 
• Ms. Jones died of an overdose and evidence tracked the controlled substances back to Bonifacio and then to Ms. Pagan. 
• Some of the evidence admitted at trial included testimony from Ms. Bonifacio, text messages between the victim and Ms. Bonifacio and between Ms. Bonifacio and Ms. Pagan, and testimony that the controlled substance sold to the victim had Xylazine in it.  Xylazine is a veterinary tranquilizer that is an unusual cutting agent. 
• Xylazine was also found in controlled substances that Ms. Pagan later sold in a more controlled setting. 
• At trial, the government introduced an officer’s testimony about text messages between the victim and Bonifacio.  
• Ms. Pagan objected on hearsay grounds. 
• The government argued that the text message content was not being offered for the truth of the matter asserted. 
• The district court allowed it because Ms. Bonifacio was scheduled to testify and could be cross examined about the text messages. 
• Ms. Pagan conceded that there was a conspiracy, but disputed the amount of heroin that was involved and disputed that the victim died from her drugs. 
• The district court gave a Pinkerton instruction on co conspirator liability.  The judge instructed the jury:
  • During a conspiracy, if a conspirator commits a crime to advance the conspiracy towards its goals, then in some cases, a coconspirator may be guilty of the crime, even though the coconspirator did not participate directly in the crime. 
  • If you have first found the defendant guilty of the crime of conspiracy, as charged in Count I, you may also find the defendant guilty of the crime charged in Count 2, even though the defendant did not personally participate in the crime. 
• Ms. Pagan objected, conceding that Pinkerton is the law, but she wanted to preserve the issue. 
• Ms. Pagan was convicted by the jury and she appealed to the 11th Circuit. 
• On appeal, Ms. Pagan argued that the Pinkerton instruction was improper because it allowed her to be convicted of the substantive offense involving fentanyl in Count II, even if it found her guilty of conspiracy to distribute only heroin in Count I. 
• But because she didn’t make this specific argument at the trial court level, the 11th looked only for plain error. 
• Either way though, the Court found that the trial court did not plainly err, or err at all, in giving the Pinkerton instruction because the Court concluded that the instruction did not allow the jury to convict her of the substantive offense in Count I, but a different conspiracy in Count II. 
• A Pinkerton instruction allows a jury to find a defendant guilty of a substantive offense committed by coconspirators during and in furtherance of the conspiracy, even if the defendant did not directly participate in the substantive offense. 
• As the Court held in United States v. Silvestri, each party to a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by a coconspirator during the course and in the furtherance of the conspiracy, notwithstanding the party’s non-participation in the offenses or lack of knowledge thereof.
• For liability to attach, the substantive offense must be a reasonably foreseeable consequence of the conspiracy.
• A district court does not err in giving a Pinkerton instruction if the evidence was sufficient for a reasonable jury to have concluded, beyond a reasonable doubt, that the substantive counts were reasonably foreseeable consequences of the conspiracy alleged in the indictment. 
• Here, both Counts alleged heroin and fentanyl. 
• The jury instructions were given in the disjunctive, using the word “or” between heroin or fentanyl, allowing the jury to find Ms. Pagan guilty of conspiracy to distribute heroin or fentanyl. 
• Where an Indictment charges in the conjunctive several means of violating a statute (like here Heroin or fentanyl), a conviction may be obtained on proof of only one of the means (heroin or fentanyl) and accordingly the jury instruction may properly be framed in the disjunctive (heroin or fentanyl). 
• So, Ms. Pagan argues that the jury could have believed that there were two separate conspiracies, one involving heroin and one involving fentanyl.  And it could have found her guilty of conspiracy to distribute fentanyl but distribution of heroin, which would have held her vicariously liable for a substantive offense carried out in furtherance of a different conspiracy.
• However,the 11th Circuit rejected this argument finding that the jury had to conclude that Ms. Pagan conspired to distribute a controlled substance in Count I and therefore the jury could find her guilty of distributing a controlled substance in Count II.  
• In the 11th’s view, Ms. Pagan takes too narrow of an approach. 
• Even if the jury found that the coconspirators to the conspiracy in Count 1 intended to distribute only heroin, the jury still could have found the the coconspirator (Bonifacio) sold the fentanyl that caused the death in furtherance of the same conspiracy. 
• Even if it were two different drugs in the substantive count and the conspiracy count, it was all the same conspiracy. 
• Ms. Pagan also challenged the district court’s decision to admit the coconspirator text messages because she argued that they were inadmissible hearsay and introduced to prove the matter asserted. 
  • Under Fed. Rule 801(c), an out-of-court statement offered to prove the truth of the matter asserted is hearsay. 
  • Statements offered as a basis for inferring something other than the matter asserted are not hearsay.
  • So, if the statement is admitted for its effect on the listener or if the statement is an order or request and to a large degree, not capable of being true or false, then it is not hearsay. 
  • Also, under Federal Rule of Evidence 801(d)(2)(E), statements used against a party made by the party’s coconspirator during and in furtherance of the conspiracy are not hearsay. 
    • For a coconspirator statement to be admissible, the government must prove by a preponderance of the evidence that 
      • 1) a conspiracy existed
      • 2) the conspiracy included the declarant and the defendant against whom the statement is offered, and 
      • 3) the statement was made during the course of and in furtherance of the conspiracy.
    • Here, the 11th Circuit held that the text messages contained no hearsay.
      • Text messages sent by Bonifacio were conconspirator statements.
        • These text messages related to the heroin sales and were therefore in furtherance of the conspiracy.
        • And one string of messages relating to the victim picking up medication for Bonifacio at the pharmacy that was unrelated to the conspiracy was harmless error. 
          • Even if those messages showed that the phone number of the phone used belonged to Bonifacio, there was ample other evidence to establish that fact.  So, no harm, no foul. 
      • And text messages sent to Bonifacio from the victim were not admitted for the truth of the matter asserted.  
        • Text messages sent from the victim requesting drugs and arranging pick up times was more in the nature of an order or a request and incapable of being proven true or false. 
        • They were offered to show their effect on the listener (Bonifacio) and to provide context for Bonifacio’s text responses. 
        • Therefore, they were not admitted for the truth of the matter asserted and not hearsay.
  • Case Affirmed. 

Case #2 – USA v. Anderson, No. 21-11796 (11th Cir. Unpub. Dec.)(October 14, 2022)

• Anderson is a sophisticated means enhancement case. 
• Mr. Anderson was convicted for wire fraud, mail fraud and conspiracy to commit wire fraud and mail fraud. 
• At sentencing, the district court applied a two level enhancement under §2B1.1(b)(10)(C) for sophisticated means. 
• 2B1.1(b)(10)(C) calls for a two level enhancement in the guidelines on a fraud offense if the offense involves sophisticated means and the defendant intentionally engages in or causes the conduct constituting sophisticated means. 
• The use of repetitive, coordinated conduct to perpetuate and conceal a fraud scheme supports a sophisticated enhancement. 
• Moreover, the length of a scheme and the loss inflicted by it can be considered in determining whether a defendant employed sophisticated means. 
• Mr. Anderson, to perpetuate the fraud, created a welcome letter promising 8% return of investor funds used to buy medical receivables, sent investors falsified letters from a law firm purporting to hold funds in escrow, falsified letters of protection from lawyers promising to pay proceeds upon settlement or judgment, and other falsified documents. 
• Mr. Anderson argued that the enhancement should not apply because the scheme was not overly complex. 
• However, the 11th Circuit found that the mechanisms by which the scheme was implemented and executed were sufficiently sophisticated to support the district court’s application of the guideline enhancement. 
• The methods were repetitive, coordinated and targeted to reassure investors and make the scheme appear legitimate. 
• The scheme lasted almost 3 years and resulted in a loss of $17 million dollars and the Court found that the degree of duration and loss further evidenced the sophistication.
• The Court also rejected Mr. Anderson’s argument that the district court improperly double counted when it applied the sophisticated means enhancement as well as an aggravating role enhancement.
• Impermissible double counting occurs only when one part of the Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the guidelines. 
• Here, the 11th Circuit found that the sophisticated means enhancement which arises from a defendant’s complex or intricate conduct is distinct from the extent of the defendant’s role in the offense. 
• The Court then looked at the substantive reasonableness of Mr. Anderson’s sentence and determined that even though his sentence was higher than his co-defendants, it was justified based on Mr. Anderson’s greater criminal history and level of culpability.
• Case Affirmed.  

Case #3 – USA v. Pope, Jr., No. 21-12173 (11th Cir. Unpub. Dec.)(October 13, 2022)

• Pope is a probation officer search and seizure case involving a warrantless search of a probationer’s home. 
• Mr. Pope was on probation for two state felony convictions in Alabama. 
• Conditions of his probation included reporting to the probation officer as directed, permitting the probation officer to visit him at his home or elsewhere, to submit to searches by the probation officer of his person, residence, vehicle or any property under his control, and to not possess, receive, or transport firearms.
• While on probation, Mr. Pope failed to report for two consecutive months, so two probation officers visited his home.
• Mr. Pope’s wife told the officers that he wasn’t home, but his young daughter said he was inside.  Ms. Pope clearly had never heard the old English Proverb, “Children and fools tell the truth,” 
• Armed with this conflicting information, the probation officers walked into the garage and into the home and found Mr. Pope lying face down on a bed.  
• The probation officers eventually woke him up and he appeared to be under the influence of something. 
• The probation officers handcuffed Mr. Pope and searched his room finding a pump action shotgun in an open closet. 
• The probation officers seized the gun, read Mr. Pope Miranda and took him to jail.  
• Mr. Pope was indicted in federal court for Possession of a Firearm by a Convicted Felon. 
• Mr. Pope filed a motion to suppress the firearm arguing that the search violated both the Fourth Amendment and Alabama law. 
• The district court denied the motion and Mr. Pope entered a conditional plea reserving his right to appeal. 
• The Supreme Court, in United States v. Knights, recognized an exception to the warrant and probable cause requirements for a probationer who has agreed to submit to searches as a condition of his probation.
• The reasonableness of a search is determined by assessing on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. 
• Probationers have a diminished expectation of privacy because they do not enjoy the absolute liberty to which every citizen is entitled.
• In Knights, the Supreme Court held that no more than reasonable suspicion is required for law enforcement  to search a probationer’s home without a warrant when a probation condition authorizes such searches. 
• So, the probation officers only needed reasonable suspicion of a probation violation to conduct a warrantless search. 
• In United States v. Yuknavich, the 11th Circuit has held that reasonable suspicion consists of a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable. 
• And the Court must take stock of everything the officer knew before searching. 
• Here, the probation officers knew that Mr. Pope failed to report for two months, there were conflicting accounts about whether he was inside the residence, there were two men inside the garage, all giving the officers reasonable suspicion that Mr. Pope was evading probation officers. 
• Because there was reasonable suspicion and because his probation order included a search condition, it was reasonable for the officers to enter Mr. Pope’s home without a warrant.
• When the probation officers observed Mr. Pope unresponsive with slurred speech, reasonable suspicion that he was under the influence of drugs developed, which was another violation.
• Therefore, it was reasonable for the probation officers to search his room for contraband. 
• Mr. Pope also argued that the probation officers acted outside their geographical jurisdiction.
  • Generally, federal law governs the admissibility of evidence obtained by state officers in federal court. 
  • Whether state law authorizes a given search is irrelevant for the Court’s Fourth Amendment analysis. 
  • Because the search was reasonable under the Fourth Amendment, whether it was authorized by state law is irrelevant. 
• Mr. Pope also argued that the search was unreasonable.  
• But, under the plain view doctrine, an officer may conduct a warrantless seizure when 
  • 1) an officer is lawfully located in the place from which the seized object could be plainly viewed and must have a lawful right of access to the object itself; and 
  • 2) the incriminating character of the item is immediately apparent. 
• Here, the officers were lawfully in the residence and the shotgun was in plain view in an open closet and the incriminating nature was immediately apparent as Mr. Pope was not allowed to possess a firearm as a condition of his probation. 
• Mr. Pope also argued that he was presented with a probation order that was not signed by the judge, but the 11th Circuit quickly rejected this argument finding that the order he was presented with was identical to the ones signed by the judge and there was no case law presented to the Court that shows that he was required to be provided with a signed copy by the judge prior to his signing of the order. 
• Mr. Pope finally argued that, under Alabama law, the officers needed a written statement of his probation violation, however, the 11th Circuit pointed out that this requirement was only if the supervising probation officer doesn’t personally make the arrest.  Here, the supervising probation officer did make the arrest. 
• Therefore, all of Mr. Pope’s arguments were rejected. 
• Case Affirmed.

Case #4 – USA v. Ullah, No. 21-13646 (11th Cir. Unpub. Dec.)(October 12, 2022)

• Ullah is a career offender enhancement case. 
• Mr. Ullah objected to his base offense increase of 63-78 months up to 151-188 months based on a career offender designation under §4B1.1(a) of the guidelines. 
• The district court overruled the objection and sentenced Mr. Ullah to 151 months, the bottom of his guidelines as a career offender. 
• The district court specifically stated that it would have sentenced Mr. Ullah to the same sentence even if he had not qualified as a career offender. This is called a Keene statement and on appeal, the appellate court will look at the reasonableness of the sentence had the guidelines been calculated at the objected to level, in this case 63-78 months.
• Based on his criminal history, which included felonies for multiple bank robberies and five separate prison sentences, Mr. Ullah’s sentence of 151 months would have been reasonable even if his guidelines were the lower 63-78 months.
• Case Affirmed. 

Case #5 – USA v. Zimmerman, No. 21-11520 (11th Cir. Unpub. Dec.)(October 13, 2022)

• Zimmerman is a Child Pornography case involving admission of a prior conviction at trial and preventing access to the internet as a condition of supervised release. 
• During his trial for possession of child pornography, the government admitted a prior conviction for the same offense that Mr. Zimmerman obtained 25 years earlier.  
• Mr. Zimmerman objected and the district court overruled the objection.
• On appeal, the 11th Circuit considered whether the district court erred in admitting the prior conviction.
  • Under Rule 403, a court can exclude relevant evidence if its probative value is substantially outweighed by its risk of unfair prejudice. 
  • Rule 403 is narrowly circumscribed and it is an extraordinary remedy to exclude evidence under this rule that should be used sparingly. 
  • Rule 414 states that, when a defendant is accused of an offense of child molestation, evidence of his prior offense of child molestation is admissible and may be considered for its bearing on any relevant matter. 
  • Possession of child pornography is a child molestation offense under that rule. 
  • However, evidence admitted under Rule 414 must still satisfy Rule 403. 
  • So, the probative value from the prior conviction cannot be substantially outweighed by the risk of unfair prejudice.
  • The 11th Circuit has affirmed the admission of a defendant’s prior acts where they were probative of the defendant’s interest in child pornography and made it more likely that the defendant, rather than some other person, was responsible for child pornography found on computers. 
  • Here, the 11th Circuit held that Mr. Zimmerman’s prior 25 year old conviction also was admissible under Rule 414 and was not inadmissible under Rule 403. 
  • The district court only allowed the conviction and not the underlying details from the prior offense. 
  • And the district court did not have to apply a multi-factor balancing test applied in other circuits, because it is not the law in the 11th Circuit. 
  • The prior conviction was probative because it showed Mr. Zimmerman’s intent and nature of his interest in child pornography and showed that it was more likely that he knowingly possessed the devices containing child pornography and less likely that he was unaware of the child pornography or that someone else put it there. 
  • The Court also found that the prior conviction was probative despite being 25 years old because of the nature of the two crimes and his attempt to characterize his prior offense as involving only depictions of nudity, as opposed to child pornography.  
  • Therefore, the Court held that the district court properly admitted the 25 year old conviction. 
• The Court next turned to a provision of Mr. Zimmerman’s supervised release that prohibited him from accessing the internet. 
  • In Packingham, the Supreme Court held that a North Carolina law violated the First Amendment by making it a felony for a registered sex offender to access a social networking website that the offender knew permitted children to become members or create personal pages. 
  • In Bobal, the 11th Circuit rejected an argument that a district court committed plain error under Packingham by imposing a restriction on computer usage as a special condition of supervised release, reasoning that Packingham did not address the constitutionality of conditions on supervised release. 
  • Mr. Zimmerman did not raise his objection to the internet restriction at the trial level, so the 11th Circuit reviewed it for plain error.
  • Because the law of the land in the 11th Circuit is that a district court can restrict computer usage as a condition of supervised release, there was no plain error. 
• Whether the U.S. Supreme Court decides to extend Packingham to supervised release provisions remains to be seen. 
• Case Affirmed. 

Compassionate Release Cases:

USA v. Casado, No. 22-10605 (11th Cir. Unpub. Dec.)(October 13, 2022)