In United States v. Curtin, No. 22-10509 (Aug. 28, 2023) (Wilson, Newsom, Luck), the Court affirmed Mr. Curtin's convictions and 60-month sentence. Mr. Curtin was convicted of (1) mailing a threatening communication, in violation of 18 U.S.C. § 876(c), and (2) threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B). First, Mr. Curtin challenged the sufficiency of the evidence as to both counts.  With regard to the § 876(c) count--mailing a threatening communication--the Court found sufficient evidence to convict.  In so holding, the Court noted that the Supreme Court's holding in Counterman v. Colorado did not change its calculus because the record evidence sufficiently demonstrated that Mr. Curtin acted with a mens rea of at least knowledge, which surpasses the mens rea of recklessness that the Supreme Court found was required in order to satisfy any First Amendment concerns raised in Counterman.  With regard to the § 115(a)(1)(B) count--threatening a federal judge--the Court similarly found sufficient evidence to convict. Second, Mr. Curtin argued that the district court erred when it denied his motion to dismiss the indictment on the ground that it violated 18 U.S.C. § 4241(d), which states that a district court may commit a defendant to the “custody of the Attorney General” to be hospitalized for “treatment [...]

In United States v. Gladden, No. 21-11621 (Aug. 17, 2023) (Wilson, Jill Pryor, Covington (M.D. Fla.)), the Court affirmed as to Ms. Linton, and affirmed in part, vacated in part, and remanded as to Mr. Gladden. Ms. Linton and Mr. Gladden were convicted of conspiracy to commit health care fraud and mail fraud, and the substantive offenses of health care fraud, mail fraud, and aggravated identity theft, for their roles in a multi-year scheme to defraud insurance companies.  It was alleged that they and several others at Global Compounding Pharmacy received inflated reimbursement payments by billing for medically unnecessary and fraudulent prescriptions. With regard to Ms. Linton, the Court found the evidence to be more than sufficient to support her convictions.  The Court disagreed that the Supreme Court's decision in Dubin required vacatur of her aggravated identity theft convictions.  It found that even under the circumscribed reading of Section 1028A set forth in Dubin, Ms. Linton's conduct fell within the statute's purview.  That is, unlike in Dubin, Ms. Linton did not provide a service to a client while merely misrepresenting how the service was performed to inflate the bill. Rather, Ms. Linton used the means of identification of former patients and prescribing doctors to overbill for certain products. [...]

In United States v. Bird, No. 22-10947 (Aug. 17, 2023) (Wilson, Newsom, Lagoa), the Court affirmed Mr. Bird's convictions for structuring. Mr. Bird was convicted of illegally structuring two separate land-sale contract payments of around $270,000 each.  On appeal, he challenged the sufficiency of the evidence to support his convictions as well as a jury instruction. The Court found the evidence more than sufficient to support Mr. Bird's structuring convictions.   He made 22 cash deposits below $10,000 over seven days to satisfy the first payment, and then made 38 cash deposits under $10,000 over the course of seven and a half months to satisfy the second payment.  The Court held that a jury could certainly look at this flurry of deposit activity and reasonably infer that Mr. Bird made these staccato payments for the purpose of evading reporting requirements. With regard to the Mr. Bird's challenge to the jury instructions, the Court found that he invited any error.  He proposed the jury instructions jointly with the government, and the court used them.  Thus, even if the instructions were plainly erroneous, the Court declined to review his challenge. https://media.ca11.uscourts.gov/opinions/pub/files/202210947.pdf ttp://defensenewsletter.blogspot.com/  

In Caldwell v. United States, No. 19-15024 (Aug. 16, 2023) (William Pryor, Jill Pryor, Coogler (N.D. Ala.), a consolidated appeal, the Court vacated one of Mr. Caldwell's convictions and his sentence due to an intervening precedent, but otherwise affirmed the convictions and sentences of the other defendants. Defendants--alleged members of the Gangster Disciples gang--were charged with conspiring to conduct and participate directly and indirectly in the conduct of the Gangster Disciples through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(c).  The defendants were also charged with the enhanced sentencing provision of the Act, for allegedly joining and remaining in the conspiracy, knowing and agreeing that members of the enterprise engaged in acts involving murder, in violation of O.C.G. 16-5-1.  They raised a number of challenges on appeal. First, they challenged the district court's denial of their motion to show prospective jurors a video on unconscious bias prepared by the district court for the Western District of Washington as well as proposed voir dire questions regarding the same.  The Court found no abuse of discretion by the district court. Second, they challenged the district court's denial of their motion to admit [...]

In United States v. Lopez, No. 21-12709 (Aug. 7, 2023) (William Pryor, Jill Pryor, Grant), the Court, in the immigration context, held that a violation of 18 U.S.C. § 1956(a)(1)(B) is not categorically a crime of moral turpitude. In so holding, the Court applied the categorical approach.  It noted that when an individual has been convicted of a conspiracy crime--like Ms. Lopez, who was convicted of conspiracy to launder money under 18 U.S.C. § 1956(h)--the categorical approach demands that courts determine whether the underlying substantive offense is divisible if it would otherwise be overbroad.  Here, the Court found § 1956(h) to be divisible by the underlying crimes a defendant could be convicted of conspiring to commit because it prohibits "conspir[ing] to commit any offense defined in [section 1956] or section 1957" of Title 18. Here, Shepard documents clarified that Ms. Lopez was charged under § 1956(h) with conspiring to launder money in violation of sections 1956(a)(1)(B)(i) and 1957.  The Court found § 1957 to be indivisible.  As to § 1956(a)(1)(B), the Court cited to the Second Circuit in holding that §§ 1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii) outline two means of committing the same knowing-concealment crime.  That is, they are different means of committing the same offense, not two separate offenses.  In so [...]

In United States v. Moore, No. 21-12291 (Aug. 11, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed Mr. Moore's conviction and sentence. Mr. Moore was charged with one count of being a felon in possession of a firearm.  He proceeded to trial and asserted a justification defense.  He was found guilty and sentenced to 80 months imprisonment. Mr. Moore first challenged the district court's denial of his motion for a judgment of acquittal or new trial based on his justification defense. The Court rejected his challenge, and affirmed his conviction.  In so doing, the Court clarified the different standards that apply for granting a judgment of acquittal versus a new trial.  For a Rule 29(a) motion for a judgment for acquittal, the evidence is viewed in the light most favorable to the prosecution and all reasonable inferences and credibility choices are drawn in its favor.  For a Rule 33(a) motion for a new trial, the district court may weigh the evidence and consider the credibility of the witnesses, but reversal of a jury's verdict is reserved for really exceptional cases in which evidence of guilt, although legally sufficient, is thin and marked by uncertainties and discrepancies.  That is, a new trial is justified [...]