In United States v. Al Jaberi, No. 22-12852 (Apr. 5, 2024) (Lagoa, Brasher, Tjoflat), the Court affirmed Mr. Al Jaberi's convictions and sentences. Mr. Al Jaberi was found guilty of smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1); knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped, in violation of 18 U.S.C. § 922(e); and knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts, in violation of 13 U.S.C. § 305(a)(1). On appeal, he first argued that there was insufficient evidence of guilt because law enforcement neither surveilled nor investigated the location where the shipping container was loaded; failed to offer evidence about any communications between him and anyone in Iraq about the firearms; and government witnesses offered inconsistent testimony about the location of the box containing the firearms.  The Court disagreed, reviewing his arguments for plain error because although he moved for a [...]

In United States v. Vargas, No. 22-10604 (Apr. 3, 2024) (Jordan, Lagoa, Marcus), the Court affirmed the district court's denial of Mr. Vargas's motion to dismiss his indictment as a result of a 35-month delay between indictment and arrest. Mr. Vargas was charged--in September 2018--with conspiracy to possess with intent to distribute one kilogram or more of heroin and possession with intent to distribute one kilogram or more of heroin.  He was indicted in Florida, but was living in New York at the time.  He was not arrested until nearly 3 years later.  The government made immediate attempts to arrest him--with South Florida DEA official reaching out to a number of groups with the New York Division of the DEA to assist--but its efforts stalled around September 2019.  Then, the global COVID-19 pandemic hit, and no activity in Mr. Vargas's case occurred during the first sixteen months of the pandemic.  Mr. Vargas was detained by immigration officials in New York in July 2021, released and re-arrested by the U.S. Marshals Service in August 2021, and finally arraigned in September 2021. Mr. Vargas moved to dismiss his indictment, claiming a violation of his right to a speedy trial on account of the delay [...]

In United States v. Alhindi, No. 23-11349 (Apr. 1, 2024) (Rosenbaum, Newsom, Luck) (per curiam), the Court affirmed the district court's rulings re: competency. This appeal raised two questions regarding how to apply 18 U.S.C. § 4241, which sets forth the procedures for determining a defendant's competency to stand trial and addressing any incompetency. First, the Court held that the statute permits a court to order more than one competency hearing and commitment order for the same defendant in a single case. Second, the Court held that the four-month period to which § 4241(d)(1) refers is the period during which the defendant receives treatment while he is hospitalized--meaning, it begins with the defendant's hospitalization.  The Court rejected Mr. Alhindi's argument that the period begins with the entry of the commitment order. The Court specifically reserved for another time (in footnote 4)--in a case where it is properly presented--the issue of whether the Due Process Clause limits the time the BOP has to hospitalize a defendant following a district court's order directing it to do so. Judge Rosenbaum concurred, writing separately to point out that the Court's holding that the four-month time limit in § 4241(d) applies to the hospitalization period does not mean [...]

In United States v. Gray, No. 22-13516 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court affirmed Mr. Gray’s conviction for conspiracy to commit a controlled-substance offense. The Court rejected Mr. Gray’s chief contention: that his conviction could not stand because the government failed to prove that he knowingly possessed—as the indictment alleged—either “a Schedule II controlled substance” or, more specifically, “50 grams or more of methamphetamine.” This argument, the Court held, was foreclosed by prior-panel precedent requiring only that the government prove general knowledge to obtain a controlled-substance conviction. That the indictment listed a specific substance simply specified an element of an enhanced penalty under 21 U.S.C. § 841(b). The Court also rejected argument concerning the district court’s denial, as untimely, of Mr. Gray’s Rule 29 motion for judgment of acquittal. It held that the denial, although erroneous, was harmless because this issue depended entirely on Mr. Gray’s knowledge argument—which the Court had rejected. 202213516.pdf (uscourts.gov) https://defensenewsletter.blogspot.com/2024/04/gray-conviction-for-conspiracy-to.html

In United States v. Tripodis, No. 22-12826 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court upheld the supervised-release portion of the sentence for Mr. Tripodis’s general-conspiracy conviction under a negotiated plea agreement. Mr. Tripodis argued that the plea agreement did not contemplate the imposition of supervised release, and that the government and the district therefore breached the agreement by recommending supervised release and erred by ordering it, respectively. The Court rejected both arguments. It determined that the plea agreement’s scope was unambiguous: it required only that the government recommend a total custodial sentence of sixty months. In the absence of a supervised-release provision, the government was free to recommend supervised release. The Court alternatively determined that, even if the agreement was ambiguous, extrinsic evidence reflected Mr. Tripodis’s understanding that he could be subject to supervised release. This evidence included Mr. Tripodis’s and his counsel’s statements at the initial plea entry and sentencing, Mr. Tripodis’s affirmative response to the district court’s asking if he understood that the court could sentence him to a three-year term of supervised release, and counsel’s failure to dispute the government’s argument for supervised release at sentencing. Notably, the Court acknowledged that a defendant might be “unintentionally [...]

In United States v. Dubois, No. 22-10829 (Mar. 5, 2024) (William Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Dubois’s convictions and sentence for attempting to smuggle firearms out of the United States, delivering firearms to a common carrier for shipment without written notice, and possessing a firearm as a felon. The Court denied Mr. Dubois’s motion to stay pending the Supreme Court’s decisions in United States v. Rahimi, No. 22-915, and Jackson v. United States, No. 22-6640. It then rejected each of Mr. Dubois’s five claims: First, the Court held that its precedent foreclosed argument that the federal felon-in-possession statute violates the Second Amendment. It otherwise refused to accept that New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), abrogated that precedent without “clearer instruction from the Supreme Court” -- particularly given that Bruen makes clear that its holding is in keeping with District of Columbia v. Heller, 554 U.S. 570 (2008), and the Bruen majority mentioned neither felons nor the felon-in-possession statute. Second, and contrary to Mr. Dubois’s sufficiency-of-evidence argument, the Court held that the record contained ample circumstantial proof that Mr. Dubois knew his shipment contained firearms. Third, the Court rejected argument that [...]