In United States v. Oudomsine, No. 22-10924 (Jan. 18, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s 36-month sentence for providing false information to obtain pandemic-related benefits. The district court varied upward to 36 months from a guideline range of 8-14 months.  The sentence was not procedurally unreasonable because the district court adequately explained the variance.  The district court emphasized that the fraud was atypical compared to other fraud cases, in that the defendant used his education to steal money from a federal relief program designed to save the country during the pandemic, and the district court did not rely on any clearly erroneous facts.  Nor was the sentence was substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to deterrence since the pandemic benefits program was now over, and that the court did not “like him” because he spent much of the money to buy a single Pokemon card. https://media.ca11.uscourts.gov/opinions/pub/files/202210924.pdf http://defensenewsletter.blogspot.com/

In United States v. Moran, No. 21-12573 (Jan 13, 2013) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for attempting to produce child pornography. The defendant commented on several “mom blog” posts asking mothers to display sexually explicit imagines of their young daughters.  First, the Court rejected the defendant’s sufficiency argument that he lacked the specific intent to have bloggers post child pornography because, even if that was unlikely to happen, he still could have desired that result. And that was true even if he also intended to troll people online. Second, the evidence was sufficient to allow a jury to conclude that the defendant knew that, if produced, the child pornography he sought would travel in interstate commerce.  The Court rejected the defendant’s argument that he first had to know that his attempt would succeed. Finally, and reviewing for plain error, the evidence was sufficient to show that the defendant took a “substantial step” toward committing the offense. https://media.ca11.uscourts.gov/opinions/pub/files/202112573.pdf http://defensenewsletter.blogspot.com/

In United States v. Harrison, No. 21-14514 (Jan. 10, 2023) (Wilson, Jill Pryor, Ruiz), the Court held, on a government appeal, that Georgia’s robbery statute is divisible, and that Georgia robbery by intimidation is a “crime of violence” under the Guidelines. First, the Court held that, under Mathis, Georgia’s robbery statute was divisible into three separate crimes: robbery by force, robbery by intimidation, and robbery by sudden snatching.  The Court reached that conclusion based on the text of the armed robbery statute, Georgia case law, and the Georgia jury instructions.  The Court rejected the Fourth Circuit’s contrary conclusion based on its reading of the jury instructions.  Having determined that the defendant was convicted of robbery by intimidation, the Court held that it was a “crime of violence” under the enumerated offense clause of the Guidelines because Georgia robbery by intimidation satisfied the “generic” definition of robbery. https://media.ca11.uscourts.gov/opinions/pub/files/202114514.pdf http://defensenewsletter.blogspot.com/

In United States v. Esformes, No. 19-13838 (Jan. 6, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed the defendant’s healthcare fraud/kickback/money laundering convictions, as well as restitution and forfeiture awards. As an initial matter, the defendant’s challenges to his 20-year prison sentence were moot because President Trump commuted that part of his sentence.  The defendant also argued that the commutation prevented the government from re-trying him on one count on which the jury hung.  However, the Eleventh Circuit lacked jurisdiction to review that argument because the hung count was not part of the final judgment over which the Court had jurisdiction. Second, the district court properly declined to dismiss the indictment or disqualify the prosecution team in light of admitted government misconduct intruding on attorney-client privilege, because the defendant could not show “demonstrable prejudice.”  Circuit precedent foreclosed any presumption of prejudice, and the defendant did not make any effort to show prejudice, which the district court found did not exist because the privileged materials did not form the basis of the charges, were not admitted at trial, and did not give the government any strategic advantage.  Whether the prosecutors acted in bad faith was not relevant. Third, federal prosecutor [...]

In United States v. Downs, No. 21-10809 (Jan. 6, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for producing and possessing child pornography. First, the Court held that the evidence was sufficient to satisfy the interstate-commerce element because transferring photos from a cell phone to hard drives constituted “production,” and the hard drives were manufactured abroad. Second, the district court did not err by discharging an impaneled-but-not-sworn jury in light of an impending storm.  Because the jury was never sworn, jeopardy never attached, and the defendant therefore had no right to have his case decided by the jury that was initially impaneled.  Nor did the district court plainly err by discharging the panel outside the defendant’s presence; the pre-trial hearing about the discharge of an unsworn jury did not implicate the Confrontation Clause or the due process right to be present in order to defend against the charges.  While Rule 43 plainly did require that the defendant be present, this error did not affect his substantial rights. Third, the victim testified that the defendant took photos of her using a flip phone, while the forensic expert testified that the photos were taken with a particular Samsung model.  The [...]