In United States v. Harris, No. 19-13692 (Aug. 9, 2021) (Jill Pryor, Newsom, Marcus), the Court affirmed the defendants’ drug and firearm convictions stemming from a reverse sting police corruption investigation. First, there was sufficient evidence to support the defendants’ convictions based on the evidence at trial. Second, while there was sufficient defense evidence of inducement to permit an entrapment defense to go to the jury, there was nonetheless sufficient evidence that the defendant was predisposed to take part in the conspiracy.  In addition, the defendant challenge the court’s response to the jury’s question about whether the definition of entrapment applied to each count or if it was a single determination.  The court responded that the jury should consider each crime and the evidence relating to each separately.  That was not an abuse of discretion because the evidence of predisposition was not the same for each count. Third, the defendant was not entitled to a duress instruction because he did not show that he had no reasonable opportunity to escape or inform the police. Fourth, the district court did not abuse by dismissing the indictment sua sponte based on prosecutorial misconduct because the prosecutor did not knowingly used perjured testimony [...]

In United States v. Akwuba, No. 19-12230 (Aug. 11, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed, with one exception, the defendant’s convictions for distributing controlled substances and health care fraud as part of a pill mill operation.   First, with one exception, the evidence was sufficient to support her convictions for distribution of controlled substances, conspiracy to distribute controlled substances and to commit health care fraud, and substantive health care fraud.  With regard to one count of substantive health care fraud, the government conceded, and the Court agreed, that the evidence was insufficient because an insurance company not named in the indictment was billed for the prescriptions for that count.   Second, the Court rejected the defendant’s argument that a jury instruction on a disputed factual question effectively directed a partial verdict of guilty.  The instruction did not relate to an element of the offense or any factual question that the jury was required to decide.  And although a closer question, the instruction also did not violate the right to present a defense because, while the judge erroneously told the jury that the parties had stipulated to something they did not, it did not prevent the defendant from presenting [...]

In United States v. Williams, No. 19-11972 (July 23, 2021) (Martin, Grant, Brasher), the Court affirmed the defendant's convictions for sex trafficking and sentence of life imprisonment. Defendant raised three challenges to his convictions: (1) the district court improperly admitted nude images and videos of the victims; (2) there was not enough evidence to show that he had the required mens rea for his crimes against one of the victims; and (3) the district court should have instructed the jury that a victim's consent to perform a sex act is a defense to sex trafficking. As to the first argument, the Court only considered whether the images' probative value was substantially outweighed by the danger of unfair prejudice because the defendant conceded that the images were relevant.  The Court found the images and videos were probative and not unduly prejudicial.  Though they were graphic in nature, that was unsurprising given the nature of the alleged crimes.  Additionally, the district court properly cautioned potential jurors during voir dire that they would view evidence of a sexually explicit nature, and seated those jurors who confirmed that this would not impact their ability to be fair and impartial. Next, the Court found that the government [...]

In United States v. Dudley, No. 19-10267 (July 22, 2021) (Newsom, Branch, Ray (N.D. Ga.)), the Court affirmed the defendant's ACCA-enhanced sentence.  Judge Branch delivered the opinion of the Court, in which Judge Ray joined, and Judge Newsom joined in all but Part III.A. On appeal, defendant argued that he was not ACCA because there was insufficient evidence to establish that his prior Alabama felony convictions were for offenses committed on occasions different from one another.  He also argued, for the first time on appeal, that Rehaif necessitated vacatur of his guilty plea to being a felon in possession of a firearm. The Court noted that the different-occasions inquiry necessarily requires looking at the facts underlying the prior convictions, but that courts are limited to Shepard-approved sources, as only information found in such conclusive judicial records has gone through a validation process that comports with the Sixth Amendment.  The Court also noted that in determining whether a defendant's prior convictions were committed on different occasions from one another, a district court may rely on non-elemental facts contained in the Shepard-approved sources.  Finally, the Court rejected the argument that judicially determining whether prior convictions were committed on different occasions from one another for purposes of the ACCA [...]

In United States v. Carrasquillo, 19-14143 (July 14, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed defendant's 60-month sentence for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. Defendant first argued that the district court erred by failing to elicit objections after imposing his sentence, thereby committing Jones error.  The Court agreed that the district court erred, but concluded that remand was unnecessary because the record was sufficient to permit appellate review of the sentencing issue raised. Defendant next argued that the district court improperly conflated the standards under U.S.S.G. § 2D1.1(b)(1)--which provides for a two-level increase if a dangerous weapon, including a firearm, "was possessed"--and U.S.S.G. § 5C1.2(a)(2)--the "safety-valve" provision that permits a district court to impose a sentence without regard to an otherwise-applicable mandatory minimum if certain criteria are satisfied, including if the defendant did not "possess a firearm  . . . in connection with the offense"-- when it denied him safety-valve relief after finding that he was subject to a two-level enhancement for possessing a firearm. The Court agreed that there is "daylight" between the standards under § 2D1.1(b)(1) and § 5C1.2(a)(2).  While a defendant must show that it is "clearly improbable" the gun was connected to [...]