Criminal Law

• Publication year: 2021

Criminal Law

Thomas D. Church

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Criminal Law

by Thomas D. Church^*

I. Introduction

This Article provides a comprehensive review of the Eleventh Circuit's most noteworthy criminal law opinions from 2020, with a focus on the key holdings from each decision.¹ Section II of this Article addresses substantive criminal offenses, such as economic crimes, drug offenses, and firearm offenses, while Section III covers criminal procedure, the rules of evidence, and constitutional issues arising in criminal prosecutions. Section IV deals with the Federal Sentencing Guidelines and other sentencing issues, and Section V provides a limited review of the Eleventh Circuit's decisions in post-conviction proceedings.

II. Substantive Offenses

A. Economic Crimes

The United States Court of Appeals for the Eleventh Circuit issued several important opinions involving fraud, theft of government property, and other economic offenses. Several of these opinions included matters of first impression or clarified the elements for certain offenses. In United States v. Graham,² for example, the Eleventh Circuit reviewed as a matter of first impression the elements for corruptly endeavoring to obstruct the administration of the Internal Revenue Code under 26 U.S.C. § 7212(a)³ in light of the United States Supreme Court's holding

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in Marinello v. United States,⁴ where the Court held that, in addition to proving that a defendant knowingly and corruptly tried to obstruct or impede the due administration of the internal revenue laws, the Government must also prove "a nexus between the defendant's conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action."⁵ Graham submitted a falsified "international bill of exchange" to satisfy an outstanding tax liability, and the Eleventh Circuit concluded that the IRS's "collection activity" against Graham qualified as a "particular administrative proceeding" given it was a "targeted administrative action" and included the IRS sending Graham multiple lien and levy notices and confiscating and selling some of Graham's assets after Graham only made small payments.⁶

Similarly, in United States v. Bazantes,⁷ the Eleventh Circuit affirmed a second-tier subcontractor's conviction for making false statements under 18 U.S.C. § 1001⁸ based on falsified payroll records the defendant submitted to the primary contractor.⁹ After an extensive discussion of the legislative history of § 1001(a) and the Copeland Act, which imposes certain requirements on contractors and subcontractors working on federal construction projects, the court held that the falsified payroll documents were made or used "in a matter within the jurisdiction" of the federal government.¹⁰ The court also rejected the defendant's argument that the statements were not material since the statements were not submitted directly to the government agency.¹¹

In United States v. Maher,¹² the Eleventh Circuit affirmed the defendant's conviction, under 18 U.S.C. § 641,¹³ for receiving, concealing, or retaining government property.¹⁴ The court rejected Maher's argument that his prosecution was barred by the statute of limitations because five years had passed since he had fraudulently obtained the federal grant money at issue, holding that the act of "retaining" or "possessing" is continuous and "is not complete until the possessor parts

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with the item," comparing Maher's offense to other continuous offenses like unlawful possession of a firearm or controlled substance.¹⁵ Because "the crime of retaining property unlawfully is not complete until the holder relinquishes the property to its rightful owner . . . . Maher's offense of retaining government property continued so long as he possessed the federal grant money."¹⁶

In United States v. Melgen,¹⁷ the Court for the Eleventh Circuit considered the standard for proving the "materiality" of a false statement in light of the Supreme Court's decision in United Health Services, Inc. v. United States ex rel. Escobar,¹⁸ where the Court held that materiality, at least in the False Claims context, "looks to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation."¹⁹ The Eleventh Circuit rejected the defendant's argument that the trial court should have used this language in its jury instructions rather than the "capable of influencing" language in the pattern instructions, holding that (1) the definition of materiality set forth in Escobar is not inconsistent with the "objective standard that our current materiality standard is based on," and (2) to the extent that Escobar created a heightened materiality standard, that standard is limited to false claims based on "implied false certification[s]," not all criminal fraud cases.²⁰

In another healthcare fraud case, United States v. Chalker,²¹ the Eleventh Circuit considered the type of evidence sufficient under 18 U.S.C. §§ 1347 and 1349²² to convict a defendant of conspiracy and substantive counts of healthcare fraud.²³ Regarding the conspiracy count, the court held that there was sufficient evidence based on witnesses testifying about the numerous "red flags" they found when conducting audits of Chalker's pharmacy, including the fact that a majority of the pharmacy's customers were from out of state, the high price of the prescriptions, complaints from patients, and discrepancies in billing and inventory.²⁴ Regarding the substantive counts, the court held there was

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sufficient evidence based on witnesses testifying that they were given medically unnecessary medicine.²⁵

In United States v. Grow,²⁶ the Court for the Eleventh Circuit affirmed another defendant's healthcare fraud conviction for recruiting Tricare beneficiaries as patients to request pain creams, scar creams, and vitamins that were not medically necessary.²⁷ Although Grow argued that bona fide doctors had issued valid prescriptions based on their medical judgment, the court countered defendant's argument and held that a prescription is not a "get-out-of-jail-free card" and recounted the numerous patient-witnesses who testified that they did not need the prescriptions and had only participated to get paid by Grow's marketers.²⁸ Also, the court held there was sufficient evidence of Grows intent to defraud and "deliberate indifference" to whether the medical products were medically necessary, noting that Grow's marketers told doctors what to prescribe and prepared prefilled prescriptions. Moreover, Grow himself instructed marketers to always get the most expensive products and knew that a recruit received scar cream despite not having a scar.²⁹

The Eleventh Circuit also issued a pair of important opinions involving violations of the federal "Anti-kickback" statute,³⁰ which prohibits providers from receiving kickbacks, bribes, or other benefits in return for referrals for, or purchases of, certain items and services billable to federal healthcare programs.³¹ In United States v. Shah,³² the court held that a conviction under the anti-kickback statute does not require any proof of the defendant's motivation for accepting the kickbacks, though the court recognized that "motive matters for the payor crime even though it does not for the payee crime."³³

In United States v. Ruan,³⁴ a "pill-mill" and healthcare fraud case, the Eleventh Circuit issued a rare reversal for the defendant's conviction under the anti-kickback statute.³⁵ The court held there was insufficient evidence to support one of the illegal kickback convictions due to

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insufficient evidence that the fraud involved a "[f]ederal health care program."³⁶ The evidence showed that the defendants' operation involved a workers' compensation dispensary that billed the Department of Labor (DOL) but did not show that prescriptions were paid for by DOL, and the Government could not provide any other "indication that federal monies actually passed through the dispensary."³⁷

The Eleventh Circuit also issued a noteworthy opinion in United States v. Singer³⁸ regarding the mens rea requirement for criminal violations of the International Emergency Economic Powers Act (IEEPA)³⁹ in a case where the defendant was charged with exporting modems to Cuba.⁴⁰ As a matter of first impression, the court held that a conviction for unlawful exportation under 50 U.S.C. § 1705, which criminalizes "willful" violations of the IEEPA, requires evidence that a defendant actually knew they were violating the law because "the exportation of goods from the United States is not so obviously evil or inherently bad that the willfulness requirement is satisfied."⁴¹ At defendant's trial, however, the court held there was sufficient evidence to prove defendant's knowledge based on defendant receiving multiple warnings to comply with commerce regulations and licensing requirements, in addition to defendant's letters discussing such requirements.⁴² The defendant also traveled with the modems in a hidden compartment and did not declare them to officials.⁴³

Additionally, the court rejected defendant's claim that the trial court erred in declining to adopt their proposed jury instruction that "in this case ignorance of the law is a defense to crimes charged against the defendant" based on the mens rea requirement.⁴⁴ Thus, the trial court appropriately instructed the jury it had to find that "the Defendant knew that exportation or sending of the merchandise was contrary to law or regulation," which was an accurate statement of law that captured the substance of defendant's proposed instruction.⁴⁵

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In United States v. Caldwell,⁴⁶ the Eleventh Circuit affirmed the defendant's conviction for bank robbery, holding that, while the Government should "ideally" provide evidence of a bank's "contemporaneously held [Federal Deposit Insurance Corporation] (FDIC) insurance" to satisfy the jurisdictional element under 18 U.S.C. § 2113,⁴⁷ there...