Criminal Law

• Publication year: 2020

Criminal Law

Thomas D. Church

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Criminal Law

by Thomas D. Church^*

I. Introduction

Last year was another busy year for the United States Court of Appeals for the Eleventh Circuit. While the court continued developing federal criminal law within the circuit, the court was also forced to adjust its own precedents in light of several landmark opinions by the Supreme Court of the United States.

In United States v. Davis,¹ for example, the Supreme Court struck down the residual clause in 18 U.S.C. § 924(c),² thus overruling the Eleventh Circuit's en banc decision in Ovalles v. United States.³ Another one of the Supreme Court's most noteworthy opinions came on appeal directly from the Eleventh Circuit in Rehaif v. United States,⁴ where a majority of the Court held that a defendant must have knowledge of his unlawful status to be convicted of unlawful possession of a firearm under 18 U.S.C. §§ 922(g)⁵ or 924(a)(2).⁶

This Article explains how the Eleventh Circuit has adapted its case law in response to these rulings. Just as importantly, it provides a comprehensive review of the court's other published opinions covering criminal law in 2019, with a focus on the key holdings from each decision. Section II of this Article reviews opinions addressing substantive offenses, such as fraud, violent crimes, and drug offenses. Section III covers criminal procedure, the rules of evidence, and constitutional issues arising in criminal prosecutions, and Section IV reviews opinions discussing the

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proper application of the Federal Sentencing Guidelines. This Article does not cover post-conviction proceedings.

II. Substantive Offenses

A. Economic Offenses

The Eleventh Circuit's 2019 docket covered a variety of fraud offenses and other economic crimes. One of the court's most noteworthy opinions came in United States v. Waters,⁷ where the court reviewed the trial court's jury instructions distinguishing between a mere "scheme to deceive" and the type of "scheme to defraud" necessary to prove wire fraud.⁸

Waters involved a substantial discussion of the court's 2016 opinion in United States v. Takhalov,⁹ in which the court held that there was insufficient evidence of wire fraud where the defendant bar owners failed to disclose to customers that they had hired women to pose as tourists and lure them to their nightclubs.¹⁰ In Takhalov, the court held that the defendants had only carried out a scheme to deceive, rather than defraud, because the defendants had not intended to harm the victims, thus drawing a line between "schemes that do no more than cause their victims to enter into transactions that they would otherwise avoid . . . and schemes that depend for their completion on a misrepresentation of an essential element of the bargain."¹¹

In Waters, the defendant tried to obtain a loan by sending a private lender a fake letter purporting to reflect the IRS approving a payment plan for the defendant's outstanding federal taxes.¹² The defendant argued that the letter wasn't material, that the loan would have been approved anyway, and that he was entitled to a jury instruction that distinguished between a scheme to deceive and a scheme to defraud, where one intends to cause harm, though the defendant's proposed instructions failed to define what constitutes "harm."¹³ The court affirmed the district court's refusal to instruct the jury and clarified that a scheme to defraud includes a defendant's intent to cause harm by lying "about the nature of the bargain itself."¹⁴ In affirming the defendant's conviction, the court concluded:

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In a scheme to deceive, the victim of the lie hasn't been harmed because he still received what he paid for. But in a scheme to defraud, the victim has been harmed because the misrepresentation affected the nature of the bargain, either because the perpetrator lied about the value of the thing (for example, promising something costs $10 when it actually costs $20), or because he lied about the thing itself (for example, promising a gemstone is a diamond when it is actually a cubic zirconium).¹⁵

In addition to clarifying the elements of wire fraud, the court also issued an opinion addressing the elements of honest-services fraud when such a charge is predicated on bribery. In United States v. Van Buren,¹⁶ the court reviewed whether the defendant, a police officer, had committed an "official act" when, in exchange for a loan from a criminal he was familiar with, the defendant searched a law enforcement database in order to tip off the criminal regarding the existence of an undercover officer.¹⁷

The defendant was convicted of honest-services fraud after the trial court refused to instruct the jury that a bribe must be given in exchange for the performance of an "official act," such as a "lawsuit, hearing, or administrative determination."¹⁸ On appeal, the court reversed, explaining that the trial court's refusal to include this analogy was not a harmless error since an official act "must involve the formal exercise of governmental power," and without further explanation, the trial court's instructions defined "official act" too broadly.¹⁹ There was no "official act" here based on the defendant sharing information from the database because he was "merely divulging information to a civilian," and the Government had not identified a pending investigation or formal matter that the defendant could influence through an official act.²⁰

The court also issued important opinions regarding bank fraud and identity fraud. In United States v. Munksgard,²¹ the defendant was convicted of bank fraud and aggravated identity theft after making false statements on several loan applications indicating that he had contracts with several companies in order to bolster his eligibility for a loan.²² On appeal, he argued that, even if he had made false statements on the bank loans, the Government failed to prove that the bank in question was

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FDIC-insured, a necessary element of federal bank fraud.²³ Over Judge Tjoflat's dissent,²⁴ and despite the fact that there was absolutely no direct evidence at trial that the bank was FDIC-insured at the time of the offense, the majority affirmed the defendant's conviction, "albeit reluctantly."²⁵

The court held that, in the light most favorable to the verdict, there was sufficient evidence of the bank's insured status at the time of the offense based on the Government presenting evidence (1) that the bank was insured when it was initially chartered in 1990, twenty-three years before the offense; (2) that the bank was insured at the time of trial; and (3) that the bank wasn't required to renew its FDIC certificate often.²⁶ The court explained that this circumstantial evidence was "good enough" to support an inference that the bank was insured at the time of trial.²⁷ Still, the majority made sure to use some colorful language in issuing a "warning to federal prosecutors" that they are "cruisin' for a bruisin'" if they continue failing to present contemporaneous evidence of a bank's insured status in bank fraud trials.²⁸

The panel in Munksgard also took a close look at aggravated identity theft under 18 U.S.C. § 1028A,²⁹ specifically the element requiring proof that the defendant "used" another person's means of identification.³⁰ The defendant argued that he had not "used" his employee's identity by forging the employee's name on a fake contract that he submitted with the loan application because he had never purported to be the employee or otherwise act on his behalf.³¹ The court rejected the defendant's narrow definition of "use" and held that the plain and "ordinary meaning" of the word only requires that the defendant employs, puts into action, or avails himself of another's identity "for the accomplishment of some purpose."³²

Another identity fraud opinion came in United States v. Delva,³³ where the court affirmed the defendant's conviction for possession of unauthorized access devices and aggravated identity theft.³⁴ First, the court held that there was sufficient evidence supporting the conviction on the access

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device counts, noting that the defendant was seen by an undercover informant in a townhouse where fraudulent activity was being undertaken, and was seen surrounded by laptops, documents listing personally identifying information, debit cards, and fraudulent tax documents, which were mixed along with his own personal items and contained his fingerprints.³⁵ The defendant had also made statements to law enforcement indicating that he knew the personal information and debit cards were being used to commit identity theft and tax fraud.³⁶

The court also affirmed the defendant's conviction for aggravated identity theft, rejecting the defendant's argument that the Government failed to prove the defendant knew "that the means of identification at issue belonged to another person."³⁷ While there was no direct evidence of the defendant's knowledge, the court held that a jury could infer knowledge from a defendant's use of a victim's information to fraudulently obtain refunds from the IRS, which verifies the information and matches it to a real person before issuing a refund.³⁸ The court added that a defendant's knowledge can also be inferred by the origin of the personal information being used, which in this case came from the records of a state agency.³⁹

The court also took a look at the elements of bankruptcy fraud. In United States v. Annamalai,⁴⁰ the court reversed the defendant's convictions for bankruptcy fraud.⁴¹ The defendant had operated a Hindu temple, referred to by prosecutors as a "scam," that took donations and credit card transactions for "spiritual services."⁴² When the first temple went bankrupt, a bankruptcy trustee was appointed and quickly shut down the temple.⁴³ Undeterred, the defendant opened a new temple, serving largely the same congregation and providing the same spiritual services.⁴⁴ The Government alleged that...