In United States v. Turner, No. 20-12364 (Mar. 1, 2023) (Rosenbaum, Tjoflat, Moody), the Court affirmed the defendant’s felon in possession conviction. At trial, the defendant raised an insanity defense.  Over the defendant’s objection, the government’s expert psychologist who had evaluated the defendant testified that he was able to appreciate the nature and quality and wrongfulness of his acts.  The Eleventh Circuit held that this testimony violated Rule 704(b) because it went to his mental state, which was an element of his insanity defense.  However, the Court held that this error was harmless because, even though the district court instructed the jury on the insanity defense, the defendant’s lay testimony of insanity was insufficient as a matter of law to establish that he had a severe mental disease that caused his wrongful conduct, as required by the Insanity Defense Reform Act of 1984. Judge Rosenbaum dissent, opining that the error was harmless.  She emphasized that the majority usurped the role of the jury, the evidence was sufficient to instruct the jury, and the government failed to meet its burden to show that the Rule 704(b) error was harmless, as the insanity issue was important and close, the government intentionally elicited [...]

In United States v. Heaton, No. 20-12568 (Feb. 14, 2023) (Wilson, Jill Pryor, Hull), the Court affirmed Dr. Heaton's convictions. Dr. Heaton was charged with one count of conspiracy to unlawfully distribute and dispense controlled substances, in violation of 21 U.S.C. §§ 841(b)(1)(C), 843, & 846; 102 counts of unlawful dispensing of controlled substances to patients, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and 27 counts of aiding and abetting a patient's acquisition of controlled substances by deception, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2.  He proceeded to trial and was found not guilty on the conspiracy and guilty on all substantive counts. On appeal, he challenged the district court's jury instructions.  He first challenged the court's use of "or" instead of "and" in its § 841(a) offense instruction.  He argued that § 841(a) requires the government to prove that he prescribed medication both "outside the course of professional practice" and "for no legitimate medical purpose."  The Court disagreed, citing to prior caselaw and 21 C.F.R. § 1306.04(a). Dr. Heaton next argued that the court's instructions as to mens rea for § 841(a) ran afoul of the Supreme Court's recent decision in Ruan.  More specifically, he argued that the district court erred in instructing the jury [...]

In In re: Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (Jan. 31, 2023) (Wilson, Jordan, Brasher), the Court dismissed the appeal for lack of jurisdiction. The appellant was the custodian of business entities that were served with subpoenas to appear before a grand jury, produce documents, and certify that the documents satisfied the business records exception to hearsay. The appellant moved to quash the subpoenas and asserted a Fifth Amendment act-of-production privilege.  The district court denied the motion and then held him in civil contempt after he refused to comply.  However, the district court stayed issuance of sanctions pending appeal.  Applying Eleventh Circuit precedent, and disagreeing with Second Circuit precedent, the court of appeals held that a contempt order must be accompanied by sanctions in order to be an appealable final judgment.  Accordingly, the Court dismissed the appeal for lack of jurisdiction. https://media.ca11.uscourts.gov/opinions/pub/files/202113651.pdf http://defensenewsletter.blogspot.com/

In United States v. King, No. 21-12963 (Jan. 23, 2023) (Rosenbaum, Grant, Tjoflat), the Court—without oral argument—affirmed the defendant’s 36-month sentence for violating his supervised release. The Court rejected the defendant’s arguments that his sentence was substantively unreasonable.  Although the defendant argued that the sentence was a major upward variance from the guideline range of 4-10 months, he repeatedly accepted responsibility, and he was less than a year away from completing his supervision, the district court acted within its discretion by weighing the 3553(a) factors. Responding to the dissent’s argument, the Court found that the district court did not commit plain error by sentencing the defendant based on his need for rehabilitation, in violation of the Supreme Court’s decision in Tapia.  The defendant forfeited that issue by failing to raise it on appeal, and his argument challenging the substantive reasonableness of his sentence did not cover this procedural error.  Even assuming that the district court committed an error, it did not plainly err or violate the defendant’s substantial rights.  The district court does not violate Tapia merely by discussing how defendants would benefit from a drug abuse program after it imposes sentence; it errs only when it imposes or extends [...]

In United States v. Scott, No. 21-11467 (Jan. 20, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s healthcare fraud convictions. First, and assuming that de novo review applied, the Court rejected the defendant’s belated challenge to the indictment on the ground that Medicare actually covered the testing he performed.  And even if it did, he would not have been entitled to dismissal of the indictment, as Medicare coverage for the particular tests would have been a factual issue to be resolved at trial, and the defendant failed to make that argument in the district court. Second, the Court concluded that the evidence was sufficient to support the convictions.  Specifically, the Court found sufficient evidence to support his willful intent to defraud Medicare based on circumstantial evidence. https://media.ca11.uscourts.gov/opinions/pub/files/202111467.pdf http://defensenewsletter.blogspot.com/