Criminal Law

• Publication year: 2022

Criminal Law

Thomas D. Church

Kate Forrest

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Criminal Law

Thomas D. Church^*

Kate Forrest^**

I. Introduction

This Article provides a comprehensive review of the United States Court of Appeals for the Eleventh Circuit's most noteworthy criminal law opinions from 2021. Section II of this Article addresses substantive criminal offenses, such as economic crimes, drug offenses, and firearm offenses, while Section III covers criminal procedure and constitutional issues arising in criminal prosecutions. Section IV deals with the Federal Sentencing Guidelines (the Guidelines) and other sentencing issues, and Section V provides a limited review of the court's decisions in post-conviction proceedings.¹

II. Substantive Offenses

A. Drug Offenses

The United States Court of Appeals for the Eleventh Circuit published several opinions governing drug offenses in 2021. In United States v. Colston,² the court affirmed the defendants conviction under the Controlled Substances Act where, despite the government and defendant's agreement to the contrary, the court held that the government did not have to prove the defendant's knowledge of the

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specific drug she possessed even though the indictment alleged a specific type and quantity of the drug.³

The Eleventh Circuit also addressed the thorny issue of allowing law enforcement agents to testify as experts in drug cases, specifically regarding the use of coded language in intercepted phone calls discussing drugs. In United States v. Perry,⁴ the court held that the agent had been properly qualified to interpret the code words, though the court cautioned against crossing the line "from interpreting coded drug language to opining about plain language, speculating, summarizing the evidence or telling the jury what inferences to draw from the conversations."⁵ The court also held that admission of a recorded call between the defendant and a non-testifying co-conspirator did not violate the Confrontation Clause, since the co-conspirator's hearsay statements provided context for the defendant's statements.⁶

Finally, in the Eleventh Circuit's split with the United States Court of Appeals for the Second Circuit's interpretation⁷ of the Maritime Drug Law Enforcement Act⁸ in United States v. Nunez,⁹ it held that the United States had jurisdiction over a boat that had been stopped and searched by the Coast Guard.¹⁰ The court concluded that the boat fell within the definition of a "vessel without nationality[,]" even though the occupants had not been specifically asked if they claimed any nationality, reasoning that the boat flew no flag, carried no documents or other identifying information, and no one aboard it claimed that the craft was registered to any nation.¹¹

B. Economic Offenses

The court rendered a series of notable opinions governing fraud offenses, bribery, and other financial crimes. Regarding wire fraud offenses, the court issued several important rulings. In United States v. Wheeler,¹² the Eleventh Circuit affirmed the convictions of three defendants and reversed the United States District Court for the

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Southern District of Florida's judgment of acquittal for two others.¹³ It held that there was sufficient evidence that the defendants had an intent to defraud, as opposed to a mere intent to deceive, in a telemarketing scheme where they misled investors regarding how much profit their company made; lied about their company's association with high-profile companies and executives; told investors that the company planned to go public; assured the investors that they were paid in stock rather than commissions on stock sales; and concealed that there would be restrictions on selling their stock.¹⁴

The Eleventh Circuit also affirmed convictions for wire fraud in United States v. Estepa,¹⁵ holding there was sufficient evidence of a scheme to defraud where the defendants won contracting bids from their local government based on material misrepresentations that they would comply with the "prevailing local wage" requirements, despite the fact that the government did not suffer a financial loss as a result of this representation.¹⁶ In another important case, the court held that the government was able to subpoena privileged communications from a politician's attorney because the government was able to establish a "prima facie case of wire fraud" by the candidate at the time he was soliciting the attorney's advice and because there was a sufficient nexus between the communications and the alleged wire fraud scheme.¹⁷

The Eleventh Circuit issued two noteworthy opinions regarding bribery offenses. In one case involving a matter of first impression, the court held the "official act" requirement from McDonnell v. United States¹⁸ does not apply to "[f]ederal program" bribery, namely bribery offenses involving federally funded programs.¹⁹ In another case, United States v. Mayweather,²⁰ the court held the United States District Court for the Northern District of Georgia's instruction on "official act" in a Hobbs Act extortion trial, involving corrupt prison guards smuggling drugs into the prison, was reversible error where the instruction did not allow the jury to determine whether the officers wearing their uniforms during their offense amounted to an "official act."²¹

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Finally, the Eleventh Circuit addressed healthcare fraud in a pair of opinions. In United States v. Abovyan,²² it affirmed a physician's conviction for conspiracy to commit healthcare fraud based on circumstantial evidence that (1) he created standing orders resulting in his facilities ordering unnecessary lab tests three times per week per patient; (2) he presigned forms that resulted in more unnecessary testing; (3) he had different standards for uninsured patients; (4) he provided his login information and presigned prescription pads to employees who prescribed unnecessary drugs when he was not present; (5) he took no action after he was warned there were billing issues; and (6) he deferred medical decisions to the clinic's owner, who had no medical training.²³

In another case involving healthcare fraud and "pill mill" charges, the Eleventh Circuit held that a defendant can be found guilty of healthcare fraud based on the defendant's knowledge or participation in the submission of medical claims relating to illegal prescriptions.²⁴ And while the United States District Court for the Middle District of Alabama was "unquestionably wrong" in instructing the jury that the parties had stipulated to a disputed fact that they had not actually stipulated to, the court held that the stipulation did not amount to a directed verdict since the stipulation did not establish any element of the charged offenses or any facts necessary to establish any elements nor did it rise to a "constitutional violation" since the defendant was otherwise able to present their theory of defense.²⁵

C. Firearm Offenses

The Eleventh Circuit issued several important opinions regarding firearm offenses in 2021. In United States v. Harris,²⁶ in a "reverse sting police corruption case," the court affirmed the drug and firearm convictions of two police officers who had served as protection for drug couriers, holding there was sufficient evidence to convict them for carrying a firearm in furtherance of drug trafficking where the officers carried their department-issued firearms while accompanying the drug couriers even though the guns were not visible.²⁷

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In cases involving possession of a firearm by a convicted felon, the Eleventh Circuit continued adapting its case law to the Supreme Court's decision in Rehaif v. United States.²⁸ In United States v. Roosevelt Coats,²⁹ the court held that it was plain error for the United States District Court for the Middle District of Georgia to accept the defendant's guilty plea without informing him the government had to prove that he knew he was a felon but concluded this was not a "structural error[,]" and the defendant failed to show he would not have pleaded guilty had he been advised of the government's burden.³⁰ In another case, the court upheld an indictment against the defendant's challenge that an indictment alleging a violation of Title 18 § 922(g) of the United States Code³¹ must also mention Title 18 § 924(a)(2),³² which sets out the penalties for violating section 922(g).³³

The court also addressed sentencing issues in firearm cases. In United States v. Matthews,³⁴ it held, as a matter of first impression, that the enhancement under Section 2K2.1(a)(3) of the United States Sentencing Guidelines³⁵ for an offense involving a "semiautomatic firearm capable of accepting a large capacity magazine" was warranted in a case where the defendant attempted to purchase a rifle "which comes standard with a magazine of 30 rounds."³⁶ In United States v. Montenegro,³⁷ the Eleventh Circuit affirmed the United States District Court for the Middle District of Florida's decision to apply a firearms enhancement under Section 2D1.1(b)(1) of the United States Sentencing Guidelines³⁸ over the objections of not only the defendant but also the government, holding that the presence of a bolt-action rifle at the defendant's residence, where drug evidence was found, shifted the burden to the defendant to negate a connection between the rifle and his drug charge, which he did not do.³⁹

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D. Sex Offenses

The Eleventh Circuit published several notable opinions relating to cases involving child pornography. In United States v. Phillips,⁴⁰ for example, the court affirmed a defendant's conviction for production of child pornography, holding that the United States District Court for the Northern District of Florida did not constructively amend the indictment when it instructed the jury that it did not have to find that the defendant knew the victim's age to convict, since this is not an element of production under Title 18 § 2251 of the United States Code.⁴¹

In United States v....