Federal 11th Circuit Criminal Case Law Update (October 3, 2022 - October 7, 2022) — Jacksonville Criminal Lawyer Blog

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Federal 11th Circuit Case Law Update (October 3, 2022 – October 7, 2022)

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OVERVIEW

9 cases
0 published decisions
9 unpublished decisions

Case # 1 – USA v. Arias, No. 22-10075 (11th Cir. Unpub. Dec.)(October 7, 2022)

Arias is a safety valve case involving the 3553(f) requirement to disclose truthful information to the government.
Mr. Arias was sentenced to a 10 year minimum mandatory sentence following a drug conviction.
On appeal, Mr. Arias argued that he was entitled to safety valve relief under 18 USC §3553(f).
Under the safety valve provisions, if a defendant is safety valve eligible, a district court shall impose a sentence without regard to a minimum mandatory.
There are 5 requirements for safety valve.
- The defendant doesn’t have more than 4 criminal history points excluding 1 point offenses, a prior 3 point offense, and a prior 2 point violent offense;
- The defendant did not use violence or credible threats or possess a firearm or other dangerous weapon in connection with the offense,
- The offense did not result in death or serious bodily injury to any person,
- The defendant wasn’t an organize or leader and wasn’t engaged in a continuing criminal enterprise and
- No later than the sentencing hearing, the defendant provided truthful information concerning the offense.
As to this fifth element, whether the information the defendant provided to the government was truthful and complete is a question of fact for the district court.
If there is substantial evidence that contradicts the defendant’s statement, a determination that the statement was untruthful is not clearly erroneous.
In determining the honesty of a defendant, the district court must independently assess the facts and may not defer to the government’s position.
Here, the district court did not find Mr. Arias’ information credible.
For example, the trial court found that Mr. Arias’ statement that he left his children during the COVID pandemic to visit someone he met online to learn more about fishing was incredible.
The trial court also did not believe his testimony that drug dealers offered him a free ride back to the Dominican Republic and a gift of $10,000 without asking him to participate in managing the vessel with the drugs.
The 11th Circuit held that based on this evidence, the trial court’s denial of safety valve was not clearly erroneous.
Case Affirmed.

Case #2 – USA v. Bowe, Jr., No. 22-10054 (11th Cir. Unpub. Dec.)(October 6, 2022)

Bowe is a safety valve case involving providing truthful information to the government.
The safety valve, §3553(f) permits defendants convicted of certain crimes to be sentenced below any statutory minimum if the sentencing court finds that they meet five listed criteria.
The fifth element under the Safety Valve, §3553(f)(5), requires a defendant to truthfully provide to the Government all information and evidence he has about his offense.
Mr. Bowe claims that he should be excused from this fifth element because of his fear that harm would come to him or his family if he provided truthful information to the government.
The District Court found that no such exception existed and therefore imposed the 60 month minimum mandatory sentence.
The trial court noted that it would have sentenced Mr. Bowe to less time if he had been eligible for the Safety Valve.
The 11th Circuit started by noting that when construing a statute, the Court begins and often ends with the language of the statute itself.
Where the language is clear and unambiguous, that is as far as the Court goes.
§3553(f)(5) states:
- [N]ot later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
- The 11th Circuit found that nothing in the statutory language can be construed to provide for an exception to the requirement because of fear of harm.
- The 11th Circuit held that it did not have the authority to create such an exception.
- The proposed exception is also inconsistent with 11th Circuit precedent.
- In Thomas, the 11th Circuit held that the defendant was ineligible for safety valve when he refused to share all relevant information about a drug operation because he had safety concerns.
- Therefore, because there is no exception to the requirement that a defendant provide truthful information to the government, Mr. Bowe was not eligible for safety valve.
- Case Affirmed.

Case #3 – USA v. Common, No. 21-13244 (11th Cir. Unpub. Dec.)(October 3, 2022)

Common is a withdrawal of plea case where the district court failed to inform him of the maximum sentence.
Mr. Common pled guilty to two drug related counts.
The plea agreement stated that the maximum possible sentence for Count I was not less than 5 years and for Count II was not less than 10 years.
The plea agreement was silent as to the maximum sentence that the court could impose.
At Mr. Common’s scheduled sentencing hearing, Mr. Common’s second attorney orally moved to withdraw the plea.
The district court appointed a new third attorney who filed a written motion to withdraw the guilty plea.
At a hearing on the matter, Mr. Common’s second attorney testified that he and the first attorney discussed the maximum possible penalty, which was life, with Mr. Common on multiple occasions.
The District Court denied Mr. Common’s motion to withdraw his plea finding that the error was harmless.
Mr. Common appealed.
Rule 11(b) sets out procedures that district courts must follow when accepting guilty pleas to ensure that a defendant’s plea is entered voluntarily and knowingly.
For a defendant to knowingly and voluntarily enter a plea, the plea must comply with Rule 11.
One of Rule 11’s procedures is informing the defendant of, and ensuring that he understands, the maximum statutory term of imprisonment.
However, a variance from Rule 11’s requirements is harmless error if it does not affect the defendant’s substantial rights.
Here, the district court found Mr. Common’s second attorney to be credible that he explained the maximum penalty numerous times with Mr. Common, even though Mr. Common repeatedly disagreed with him.
The Supreme Court in Bradshaw v. Stumpf has stated that the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.
Where the review of the record reveals that a defendant clearly was aware of the information Rule 11 was designed to address, a district court’s inadvertent failure to discuss those issues will be deemed harmless.
Here although the district court and the plea agreement did not advise Mr. Common of the statutory maximum, Mr. Common’s substantial rights were not affected because his counsel explained the statutory maximum with Mr. Common.
Case Affirmed.

Case #4 – USA v. Franklin, No. 21-14358 (11th Cir. Unpub. Dec.)(October 7, 2022)

Franklin is an embezzlement, bank fraud and wire fraud case with several issues on appeal.
Ms. Franklin had a prior state court conviction for theft of property.
- At trial, the government admitted evidence of that prior conviction and the trial court precluded Ms. Franklin from presenting evidence that she pled guilty and had already been sentenced on that case.
- Rule 404(b) prohibits evidence of other crimes, wrongs, or acts from being admitted to prove a defendant’s character in order to show action in conformity with her character, but such evidence may be admitted for other purposes.
- Here, the prior state conviction was for theft from a middle school.
- In the superseding indictment on her federal case, Ms. Franklin was charged with wire fraud, which was alleged to be part of a larger scheme to defraud that middle school.
- The government argued that the evidence of her scheme to defraud the middle school was inextricably intertwined with the wire fraud charges and therefore, not subject to Rule 404(b).
- The 11th Circuit agreed, and further held that the district court did not abuse its discretion in preventing Ms. Franklin from presenting evidence that she pled guilty to the state theft charge and had already been sentenced.
- The 11th found that the evidence Ms. Franklin wanted to admit was of no consequence in determining her guilt or innocence on the wire fraud charges and was therefore irrelevant and inadmissible.
Ms. Franklin also appealed the trial court’s allowing a government witness to be called to summarize evidence that was admitted. Ms. Franklin argued that this was improper expert testimony and speculative.
- Rule 1006 permits a party to use a summary or chart to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.
- A witness who presents summary testimony typically qualifies as a lay witness under Federal Rule of Evidence 701.
- Rule 701 allows lay testimony as to opinions or inferences with are:
  - 1) rationally based on the perception of the witness.
  - 2) helpful to a clear understanding of the witness’s testimony or the determination of fact in issue; and
  - 3) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
- Here, the 11th Circuit held that the witness testimony was admissible under 701 and 1006 because it was not expert testimony, but instead simply summarized Ms. Franklin’s voluminous bank records spanning several years and was based on the witness’s personal knowledge of investigating Ms. Franklin’s bank records.
Ms. Franklin next argued that the government’s evidence was insufficient to support a conviction
- As to Ms. Franklin’s embezzlement conviction, 18 USC §656 requires the government to prove:
  - 1) The defendant was an employee of the bank,
  - 2) The bank was connected in some way with a national or federally insured bank,
  - 3) The defendant willfully misapplied the moneys or funds of the bank, and
  - 4) The defendant acted with the intent to injure and defraud the bank.
- Ms. Franklin stipulated to the first two elements as she was an employee at BB&T, which was federally insured.
- The 11th found that Ms. Franklin’s written confession that she took between $400 and $1500 per day from the vault for a total of $202,000 and avoided detection by force balancing the daily records was sufficient to establish that she misapplied monies of funds of the bank.
- The 11th also found that the evidence was sufficient for the 4th element that she intended to injure or defraud the bank because the jury could infer it from the evidence that she spent at least some of the money at a casino, began gambling significantly more during the time of the embezzlement, and admitted to force balancing her balance sheets allowing her to conceal the embezzlement.
- As to the scheme to defraud counts, 18 USC §1344(1) requires the government to prove:
  - 1) the defendant intentionally participated in a scheme or artifice to deprive another of money or property; and
  - 2) the intended victim was a federally insured financial institution.
- The 11th noted that the Supreme Court has acknowledged that check kiting schemes, where a defendant writes checks against an account with insufficient funds in a way designed to keep them from bouncing, may be brought under §1344(1).
- Ms. Franklin stipulated to the second element that Wells Fargo was a federally insured bank.
- As to the first element, the Court found the evidence sufficient because the government submitted video footage of Ms. Franklin depositing the two checks in question, a transaction report showing money was withdrawn from the account immediately after the checks were deposited, and Ms. Franklin admitted that the checks she deposited were not supported by sufficient funds.
- As to the wire fraud counts, the government must prove:
  - 1) the defendant intentionally participated in a scheme to defraud another of property or money and
  - 2) used or caused the use of wires to execute the scheme to defraud.
- Ms. Franklin stipulated that the use of the middle school’s Walmart credit card would transmit by wire some communication in interstate commerce.
- And the 11th held that the government provided sufficient evidence that Ms. Franklin intentionally participated in a scheme to defraud because the evidence showed that Ms. Franklin was the bookkeeper and custodian of the credit card, a purchase was made with the credit card without a purchase order signed by the principal, the credit card was used to purchase individual gift cards with no signed purchase orders and Ms. Franklin signed the receipts and she did not provide an answer when asked by she purchased the gift cards.
- The evidence also showed that the use of the credit card was part of a larger scheme to defraud the middle school out of thousands of dollars.
Ms. Franklin also argued that the trial court erred in applying a two level enhancement at sentencing for abuse of a position of trust.
Under sentencing guideline §3B1.3, an abuse of trust enhancement is justified if the government shows:
- 1) the defendant held a position of public or private trust, and
- 2) the defendant abused that position in a way that significantly facilitated the commission or concealment of the offense.
- §3B1.3’s commentary states the enhancement does not apply in the case of embezzlement or theft by an ordinary bank teller.
- However, in United States v. Milligan, the 11th Circuit held that the enhancement did apply to a postal window clerk’s embezzlement of funds because he was only subject to audit every 4 months and had unsupervised access to programs that allowed him to move funds in and out of accounts and therefore was given more trust than an ordinary bank teller.
- Here, Ms. Franklin did not object to the abuse of trust enhancement at the trial level, therefore the plain error standard applied.
- Because there is no published 11th Circuit decision or U.S. Supreme Court decision addressing whether a vault teller occupies a position of trust, Ms. Franklin could not establish plain error.
- The Court further noted that Ms. Franklin’s position as a vault teller was similar to the postal clerk’s position in Milligan because the vault was audited infrequently and she was entrusted with sole access to the vault.
- So, the 11th denied each of Ms. Franklin’s claims.
- Case Affirmed.

Case #5 – USA v. Gargiulo, No. 21-14123 (11th Cir. Unpub. Dec.)(October 4, 2022)

Gargiulo is a substantive reasonableness of the sentence case.
Mr. Gargiulo was sentenced to 21 months for transportation of stolen goods.
Mr. Gargiulo asked for a downward variance which was denied.
Mr. Gargiulo appealed.
THe 11th Circuit found that the district court did not abuse its discretion in denying the motion for downward variance because the court has wide discretion, the district court stated it noted and considered the mitigation and weighed the mitigating factors against the criminal history which it found underrepresented by his criminal history computation.
Case Affirmed.

Case #6- USA v. James, No. 21-11956 (11th Cir. Unpub. Dec.)(October 3, 2022)

James is a suppression motion denial and reasonableness of sentence case.
Mr. James was convicted of possessing ammunition as a convicted felon.
The district court varied upwards and sentenced Mr. James to 120 months.
Mr. James appealed and the government argued that Mr. James waived his right to challenge the denial of suppression motion by entering an unconditional plea.
A defendant who wishes to preserve appellate review of a non-jurisdictional defect while at the same time pleading guilty can do so only by entering a conditional plea in accordance with Rule 11(a)(2).
The conditional plea must be in writing and must be consented to by the court and by the government.
Mr. James entered into an unconditional plea and therefore waived appellate review of the denial of his motion to suppress.
As for the reasonableness of the sentence, the 11th Circuit held that the district court had wide discretion, considered Mr. James background and statements, the presentence report, and his sentencing memorandum and found that Mr. James criminal history, severity of conduct, complete disregard for life, the law and community safety all justified an upward variance.
Case Affirmed.

Case #7 – USA v. Jarcord, No. 21-13975 (11th Cir. Unpub. Dec.)(October 5, 2022)

Jarcord is an enticing a minor to engage in prostitution jury instruction case.
Law enforcement discovered a 14 year old girl posting on a prostitution website.
An undercover agent posed as a customer and made contact with the minor.
Officers discovered that the minor was communicating with Mr. Jarcord on Facebook and telephone and had sent him explicit photographs.
Mr. Jarcord was 49 years old and evidence established that he asked the minor how old she was and she stated she was over 18.
Mr. Jarcord also told investigators that he asked the minor’s mother if she was over 18.
Mr. Jarcord had paid the minor 4 or 5 times with money and cigarettes in exchange for sex.
Mr. Jarcord was charged un 18 USC 2422(b) with knowingly persuading, inducing, enticing or coercing an individual who had not attained the age of 18 years of age in prostitution.
At trial, Mr. Jarcord asked the district court to instruct the jury that if he did not know the minor was under 18, then he was not guilty.
The district court denied the proposed jury instruction and Mr. Jarcord appealed.
The 11th Circuit held that Mr. Jarcord’s proposed jury instruction was barred by its prior precedent in United States v. Daniels.
In Daniels, the 11th Circuit held that a defendant’s alleged lack of knowledge as to the victim’s age cannot serve as a shield from conviction.
Therefore, although Mr. Jarcord could and did argue that the minor’s misrepresentation of her age meant that she induced him and he did nothing to persuade or entice her, he could not argue that his ignorance of her age meant that he was innocent of persuading, inducing, or enticing her to engage in prostitution.
Case Affirmed.

Case #8 – USA v. McKnight, No. 20-11859 (11th Cir. Unpub. Dec.)(October 3, 2022)

McKnight is a Notice of Appeal and 2255 motion for indicative ruling case.
Under Federal Appellate Rule 4(b), a defendant’s notice of appeal must be filed within 14 days after entry of the judgment or order.
This rule is a claim processing rule, not jurisdictional.
If the government raises the issue of timeliness, the appellate court must apply the Rule 4(b) time limits.
Ms. McKnight’s pro se notice of appeal was undated so it is deemed file when it was postmarked on May 12, 2020.
Her judgment became final on August 5, 2019 almost 9 months later.
Therefore, her notice was untimely.
The notice of appeal cannot be construed as a motion to extend time to appeal because it was not filed within 30 days after the appeal period expired.
Here, because the government raised the issue of timeliness and the Notice of Appeal was untimely, the appeal must be dismissed.
As for the §2255 motion, it was filed while her direct appeal was pending.
In the §2255 motion, she raised six claims of ineffective assistance of counsel which included a claim that her trial counsel failed to provide knowledge of appeal rights.
The district court denied her motion for an indicative ruling and dismissed the 2255 without prejudice for lack of jurisdiction.
Generally, a defendant may not seek collateral relief while a direct appeal is pending.
The filing of a notice of appeal divests a district court of jurisdiction over all aspects of the case involved in the appeal and bars the district court from taking any action with regard to the matter except in aid of the appeal.
Usually, the appropriate action for addressing a §2255 motion filed during the pendency of a direct appeal is to dismiss the §2255 without prejudice so the defendant can pursue the collateral remedies when jurisdiction is revested in the district court after disposition of the direct appeal.
However, Rule 37 entitled Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal carves out a discretionary exception.
- If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
  - Defer considering the motion;
  - Deny the motion, or
  - State either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises substantial issue.
Here, the 11th Circuit determined that under Rule 37 and applicable 11th Court rules, the district court could have issued an indicative ruling at its discretion.
The decision to exercise discretion is predicated on a finding by the district court that it would either grant the motion or that the motion raises a substantial issue.
The district court in this case noted that the §2255 motion was incredibly brief and wholly conclusory and did not allege that the attorney was asked to file a direct appeal or that Ms. McKnight conveyed to the attorney a desire to file an appeal.
The district court also stated that it would be especially improper to indicate it would grant her §2255 motion if remanded.
Therefore, the 11th Circuit held here that the district court did not abuse its discretion in denying the motion for an indicative ruling.
Government’s motion to dismiss and motion for summary affirmance granted.

Case #9 – USA v. Sholtz, No. 22-10444 (11th Cir. Unpub. Dec.)(October 5, 2022)

Sholtz is a supervised release case where Mr. Sholtz argued that his term of lifetime release exceeded the statutory maximum.
Mr. Sholtz was sentenced to a prison term followed by lifetime supervised release minus the term of imprisonment following revocation of supervised release subsequent to a new child abuse conviction.
The sentence was to run consecutively to his state sentence.
Mr. Sholtz appealed, arguing that the lifetime term of supervised release exceeded the statutory maximum under §3583(h).
Under §3583(e)(3), a district court may revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release.
Under §3583(h), the court may also require the defendant serve a term of supervised release after imprisonment, but the supervised release term shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.
§3583(b) provides the authorized terms of supervised release and states that “except as otherwise provided,” the term of supervised release for Class A or B felonies is not more than 5 years.
The maximum penalty at the time of Mr. Sholtz conviction for his drug offense was 40 years, so he was convicted of a Class B felony.
The pertinent statute he was convicted of stated that “any sentence for a violation of §841(a) involving the quantities specified under §841 (b)(1)(B) shall include at least 4 years of supervised release where the defendant does not have a prior conviction for a serious drug felony or serious violent felony.
The 11th Circuit has held that a statute that does not have a maximum term of imprisonment authorizes a term up to life.
After Mr. Sholtz’s conviction Congress amended 841(b) to clarify that the supervised release terms that it prescribed notwithstanding §3583 of Title 18.
Because Mr. Sholtz did not preserve the issue at the trial level, the plain error standard applied.
Here, the 11th Circuit held tha §841(b)(1)(B) controlled the term of supervised release and authorized up to life because it provided no maximum term.
The Court held that §3583(b) did not apply because §841(b)(1)(B) expressly otherwise provided for a supervised release term of at least 4 years.
Therefore, the district court was authorized to impose a term of supervised release up to life.
The Court also held that Mr. Sholtz’s sentence was not substantively unreasonable and a sentence imposed for a revocation of supervised release is intended as a sanction for the defendant’s breach of trust and to run consecutively to the sentence imposed for the violative conduct.
Case Affirmed.

Compassionate Release Cases.

USA v. Gaines, No. 22-10587 (11th Cir. Unpub. Dec.)(October 6, 2022)

USA v. Howard, No. 21-12980 (11th Cir. Unpub. Dec.)(October 3, 2022)