Criminal Law

• Publication year: 2023

Criminal Law

Thomas D. Church

Whitney Baker

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Criminal Law Thomas D. Church^* Whitney Baker^**

I. Introduction

This Article provides a brief examination of the United States Court of Appeals for the Eleventh Circuit's most important opinions in 2022 in the area of federal criminal law.¹ Rather than engage in an exhaustive review of the facts and laws in each case, we focus on the key holdings from only the most noteworthy, published decisions. 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 court'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.² Several of these opinions

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included matters of first impression or the standard of proof for certain offenses.³ In a matter of first impression for the court regarding the elements under 18 United States Code section 1521,⁴ for example, the court affirmed the defendant's conviction for filing false liens in retaliation against two employees of the federal government even though the defendant had filed the liens after they had left their employment with the federal government.⁵ The court reasoned that the plain text of 18 U.S.C. § 1521 "covers both current and former federal officers and employees" when the liens are filed in retaliation for official actions taken during an officer's employment with the government.⁶

In a prosecution for theft of trade secrets, the court in United States v. Smith⁷ held that venue for a theft of trade secrets prosecution does not lie in the district where the trade secret's owner was headquartered, as Congress had defined the essential conduct element of the offense ("knowingly steal, take without authorization, or obtain by fraud or deception") by where the theft occurred, not by where the loss or effects of the theft were felt.⁸ The court held that the improper venue required vacatur of that particular count, however, and not acquittal.⁹

In United States v. Watkins,¹⁰ the court affirmed the convictions and sentences of a father and son convicted of wire fraud and bank fraud based on a scheme where they solicited millions of dollars in investment from celebrities, including Charles Barkley.¹¹ While the son's conduct, standing alone, did not meet all of the elements for the substantive fraud charges, it was sufficient that the evidence showed he knowingly and willingly "joined the criminal scheme," and that evidence included the son's emails, communications with the father regarding transfers, and his knowledge that business funds were used for personal purposes.¹²

The court issued an unusual opinion in Hesser v. United States¹³ —unusual because the defendant won and because the alleged offense

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involved gold, not dollars.¹⁴ The court reversed the United States District Court for the Middle District of Florida's denial of the defendant's 28 U.S.C. § 2255¹⁵ motion, holding that defendant's counsel was ineffective for failing to move for acquittal on the charge for tax evasion where the government failed to prove that the hidden gold in the defendant's house actually belonged to the defendant.¹⁶

Finally, in United States v. Witt,¹⁷ a fraud case involving federal relief funds for livestock farmers affected by droughts and fires, the Eleventh Circuit Court of Appeals affirmed the defendant's conviction for fraud, theft, and identity theft despite the fact that her application for funding was not signed.¹⁸ The court reasoned that there was otherwise sufficient evidence that the defendant participated in the fraudulent scheme—she received the funds, she facilitated the filing of a second fraudulent application using her daughter's identifying information, and a cooperating witness testified in detail regarding the defendant's actions to obtain the funds, which included giving the cooperating witness the falsified information used on the application.¹⁹

B. Drug Offenses

The Eleventh Circuit issued a notable opinion regarding drug offenses in United States v. Ifediba,²⁰ a "pill mill" case where the court of appeals held that the United States District Court for the Northern District of Alabama did not err in excluding evidence of the nurse-defendant providing "good care" to some patients or evidence of the defendant's cultural norms from Nigeria that required her to obey her brother, who owned the clinic.²¹ Regarding the first argument, the court reasoned that "the government never alleged that [defendant] Ifediba unlawfully treated every patient who walked through CCMC's doors . . . . Thus, it was no defense that Ifediba lawfully treated some patients."²² Regarding her desire to introduce evidence of cultural norms that influenced her

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behavior, the court held that the district court properly excluded this evidence because it would be error to rely on "stereotypes."²³

In an immigration case that could affect federal criminal prosecutions, the Eleventh Circuit held that an immigration petitioner's prior state conviction for possession of marijuana did not constitute an offense involving a "controlled substance" as defined under federal law.²⁴ The court noted that the federal definition of a controlled substance excludes cannabis that falls under the definition of "hemp," and since the petitioner's conviction was under a Florida law that did not make that distinction, it could not serve as a predicate prior conviction.²⁵

C. Firearm Offenses and the Armed Career Criminal Act

The Eleventh Circuit, like all federal circuits, will soon be grappling with important constitutional questions regarding the right to keep and bear arms after the Supreme Court of the United States decision in New York State Rifle & Pistol Ass'n v. Bruen.²⁶ In Bruen, the Supreme Court held that courts reviewing the constitutionality of a firearm law must determine whether the regulation in question is consistent with the nation's history and tradition of firearm regulation.²⁷

Just before the Supreme Court's decision in Bruen, the Eleventh Circuit considered whether the Second Amendment²⁸ protected the rights of illegal aliens to possess firearms, which is currently a crime under 18 U.S.C. § 922(g)(5)(A).²⁹ After a thorough historical inquiry in United States v. Jimenez-Shilon,³⁰ the court held that, even assuming illegal aliens were part of "the people" at the time of the founding, they were not a group that traditionally enjoyed protection under the Second Amendment since they were "outside the national polity."³¹ Foreshadowing Bruen, Judge Newsome authored a concurring opinion calling for a history-based test for determining the constitutionality of a firearm law rather than means-end scrutiny.³²

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In another felon-in-possession of firearm case, the court in Seabrooks v. United States³³ reversed the denial of the defendant's motion to vacate his sentence under 28 U.S.C. § 2255 based on the trial court's erroneous jury instructions for aiding and abetting and the government's failure to prove Seabrooks knew his co-defendant was a convicted felon.³⁴ Under Rehaif v. United States,³⁵ the court held that aiding and abetting the possession of a firearm by a prohibited person requires a defendant's knowledge that the possessor belongs to a prohibited class, and the aiding and abetting instruction was unwarranted at the defendant's trial since the government had not presented any evidence that the defendant knew his co-defendant was in a prohibited class.³⁶

As it does every year, the Eleventh Circuit also considered the scope of the Armed Career Criminal Act (ACCA).³⁷ In a major case involving application of the ACCA, the court in United States v. Jackson³⁸ held that a sentencing court considering whether a defendant's prior state conviction is a "serious drug offense" must consider whether the state offense involved a controlled substance based on the federal definition of "controlled substance" in place at the time of the defendant's prior offense, not at the time of the instant federal offense.³⁹

In United States v. Gardner,⁴⁰ the court held the statutory maximum prison sentences for a defendant's prior convictions under Alabama law, and not the state guidelines range for those convictions, determined whether those prior convictions were for "serious drug offenses" under the categorical approach.⁴¹ In United States v. Conage,⁴² after certifying a question of state law to the Florida Supreme Court regarding Florida's drug trafficking statute,⁴³ the court concluded that the defendant's conviction under Florida law was a "serious drug offense" under the ACCA.⁴⁴

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D. Sex Offenses

The Eleventh Circuit issued a pair of notable opinions affirming federal sex offense convictions.⁴⁵ In United States v. Nicholson,⁴⁶ the court affirmed a defendant's conviction for enticing a minor to engage in sexual conduct for the purpose of producing child pornography where the defendant sent the minor a text message requesting she "send him something pretty."⁴⁷ The court also affirmed his conviction for taking a minor across state lines for sex-related purposes, even though the minor victim testified that they had not engaged in any actual sex acts while traveling.⁴⁸ Actual sexual activity is strong evidence of a defendant's intent to take a minor across state lines for sex-related purposes, but it is not the only way to prove such an intent, and the defendant's intent here could be inferred, "even if he never followed through," given the sexual nature of his relationship with the victim and...