News2017-12-18T21:16:38+00:00

Legal News & Updates

United States v. B.G.G., No. 21-10165 (Nov. 22, 2022)

In United States v. B.G.G., No. 21-10165 (Nov. 22, 2022) (Wilson, Luck, Lagoa), the Court, on appeal by the government, vacated the dismissal of an information with prejudice under Rule 48(a). During the pandemic, the Southern District of Florida imposed a temporary moratorium on grand juries.  Concerned that they would not be able to charge the defendant within the statute of limitations, prosecutors filed an information before the statute of limitations expired.  Then, after the limitations period expired, the government moved to dismiss the information under Rule 48(a) without prejudice, which it believed would have triggered a six-month extension within which they intended to bring an indictment.  The district court, however, dismissed the information with prejudice, precluding a subsequent indictment. On appeal, the Eleventh Circuit held that the district court abused its discretion by committing five separate legal errors.  First, the district court failed to apply the presumption of good faith to the government’s Rule 48(a) motion to dismiss.  That presumption applies even where, as here, the government articulates a reason for the dismissal.  Second, the district court failed to require the defendant to rebut the presumption by showing that the government sought the dismissal in bad faith.  Third, the [...]

November 22nd, 2022|

United States v. Malone, No. 20-12744 (Oct. 26, 2022)

In United States v. Malone, No. 20-12744 (Oct. 26, 2022) (Rosenbaum, Tjoflat, Moody (M.D. Fla.)), the Court, applying plain-error review, vacated Mr. Malone's sentence and remanded for resentencing before a different district court judge. Mr. Malone was charged with (1) three counts of wire fraud, in violation of 18 U.S.C. § 1343; (2) one count of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312; and (3) one count of sale of a stolen motor vehicle, in violation of 18 U.S.C. § 2313.  He agreed to plead guilty to four counts in exchange for the government's agreement to dismiss one count.  The government reserved the right to oppose a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 if it received information that Mr. Malone acted inconsistently with acceptance of responsibility between the date of the plea hearing and the date of the sentencing hearing.  The government also agreed to move for a one-level reduction for acceptance of responsibility, and to recommend a sentence within the advisory Guidelines range as calculated by the court at the sentencing hearing. The PSR recommended that Mr. Malone be denied acceptance of responsibility, which resulted in a guidelines range of 57 to 71 months' [...]

October 27th, 2022|

United States v. Conage, No. 17-13975 (Sept. 30, 2022)

In United States v. Conage, No. 17-13975 (Sept. 30, 2022) (Ed Carnes, Julie Carnes, Clevenger) (per curiam), the Court affirmed the defendant’s ACCA sentence based on a prior drug trafficking conviction under Fla. Stat. 893.135. The defendant argued that his prior conviction was not a ACCA “serious drug offense” because 893.135 can be committed by purchase, whereas the ACCA requires possession with intent to distribute.  In a prior opinion, the Eleventh Circuit certified a question to the Florida Supreme Court about whether “purchase” under 893.135 necessarily required actual or constructive possession.  The Florida Supreme Court held that it did.  In light of the Florida Supreme Court’s opinion, the Eleventh Circuit rejected the defendant’s argument and affirmed his ACCA sentence. https://media.ca11.uscourts.gov/opinions/pub/files/201713975.pdf http://defensenewsletter.blogspot.com/

October 1st, 2022|

United States v. Grushko, No. 20-10438 (Sept. 23, 2022)

In United States v. Grushko, No. 20-10438 (Sept. 23, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the defendants’ convictions and sentences for conspiracy to commit access device fraud. First, the Court held that officers did not violate the Fourth Amendment by entering the defendants’ home after detaining them outside.  Under the totality of the circumstances, the officers had reason to believe that one of the defendants was still inside the home because they did not know the identity of the men they had detained.  Although they had previously seen a picture of the defendant, his appearance had since changed, and the officers were not permitted to look through the wallets of the men because they were not under arrest.  And the officers heard noises from inside the home, and so had reason to believe that the defendant was still inside. Second, the district court did not abuse its discretion in making comments to the voir dire panel about types of forensic evidence that might be seen on TV.  Although the statements were unnecessary and unwise, it was not reversible error because the court did not suggest that the government did not have to prove the elements or was relieved [...]

September 23rd, 2022|

United States v. Doak, No. 19-15106 (Sept. 7, 2022)

In United States v. Doak, No. 19-15106 (Sept. 7, 2022) (Grant, Luck, Hull), the Court largely affirmed the defendants’ convictions and sentences for offenses involving the transportation and sexual abuse of minors. As to the counts under 2423(a)—charging the transportation of minors with the intent that they engage in unlawful sexual activity—the defendants argued that the indictment was insufficient because it omitted the underlying state statutes prohibiting the sexual activity.  The Court rejected that argument because the specific state-law offenses are means rather than elements of a 2423(a) offense.  Thus, the state statutes did not need to be included in the indictment; including the statutory language of 2423(a) was enough.  Nor were the defendants deprived of fair notice; although it is best practice to include the state statutes, the indictment here contained key details about the defendant’s intended sexual activity. The Court next rejected the defendants’ sufficiency arguments.  As for the main defendant, the evidence at trial was sufficient for a jury to find that he transported the minors with an intent to sexually abuse the minors; even if he had other innocent reasons as well, that did not allow him to elude liability.  As for the co-defendant, who was [...]

September 7th, 2022|

United States v. Ifediba, No. 20-13218 (Aug. 25, 2022)

In United States v. Ifediba, No. 20-13218 (Aug. 25, 2022) (Jill Pryor, Branch, Ed Carnes), the Court affirmed the defendants' convictions and sentences. Mr. Ifediba, a doctor, operated a clinic called CCMC, and employed his sister, Ms. Ozuligbo, as a nurse there.  Mr. Ifediba was alleged to have been running a "pill mill" to distribute controlled substances to patients who had no medical need for them, as well as running an allergy-fraud scheme.  Mr. Ifediba and Ms. Ozuligbo were indicted on substantive counts of health care fraud, conspiracy to commit health care fraud, money laundering of the clinic's unlawful proceeds, and conspiracy to money launder.  Mr. Ifediba was also indicted for unlawfully distributing controlled substances for no legitimate medical purpose and for operating CCMC as a "pill mill." On appeal, Mr. Ifediba first challenged the district court's exclusion of his evidence of good care he provided his patients to prove that his medical practice was legitimate.  The Court agreed with the district court that such evidence was improper character evidence because evidence of good conduct is not admissible to negate criminal intent.  The Court also held that the exclusion of such evidence did not violate Mr. Ifediba's constitutional right to present [...]

August 29th, 2022|
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