In United States v. Smith, No. 20-12667 (Jan. 12, 2022) (William Pryor, Grant, Hull), the Court vacated the defendant's conviction for theft of trade secrets and related sentencing enhancements for lack of venue, affirmed the extortion conviction and related sentencing enhancements, and remanded for resentencing. The Court addressed whether an accused can be tried in a venue where he did not commit any of the conduct elements of the charged crime.  Defendant was a software engineer in Mobile, Alabama who obtained the coordinates of artificial fishing reefs in the Gulf of Mexico from a website owned by StrikeLines, whose office is located in Pensacola, Florida, but whose servers are located in Orlando, Florida.  He did so by bypassing StrikeLines's security measures, and then posted them to his Facebook page.  Defendant was convicted of one count of theft of trade secrets and one count of extortion, and received an enhanced sentence. In the district court, the defendant moved to dismiss the indictment, and then renewed the motion to dismiss at trial, on the grounds that venue was improper.  He argued that venue was improper in the Northern District of Florida because all prohibited conduct occurred in the Southern District of Alabama and [...]

In United States v. Fleury, No. 20-11037 (Dec. 16, 2021) (Wilson, Rosenbaum, Hull), the Court affirmed the defendant’s convictions for transmitting interstate threats and cyberstalking. First, the Court rejected the defendant’s facial and as-applied First Amendment challenges to the cyberstalking statute.  Joining every circuit to address the issue, the Court held that the statute was not facially overbroad because the elements did not target expressive speech but rather unprotected conduct involving an intent to kill, injure, harass, or intimidate.  And the Court rejected the defendant’s as-applied challenge because his conduct did not involve a matter of public concern but rather “true threats” to the families of the victims of the Parkland shooting. Second, the Court held that the indictment sufficiently charged the cyberstalking counts because it tracked the statutory language and otherwise provided adequate notice of the charges. Third, the Court held that the evidence was sufficient for a reasonable jury to find that the defendant had the subjective intent to transmit interstate threats and to cyberstalk the victims.  Although the defense expert testified about the defendant’s autism, the jury heard from the government’s competing expert and was free to weigh assess the experts’ credibility as it saw fit. Fourth, [...]

In Telcy v. United States, No. 19-13029 (Dec. 10, 2021) (Wilson, Lagoa, Brasher), the Court affirmed the dismissal of a 2255 motion as an unauthorized second or successive motion. The issue on appeal was whether a sentence reduction under Section 404 of the First Step Act qualifies as a “new judgment” for purposes of the bar on second or successive habeas 2255 motions, and thus resets the clock.  The Court held that it does not.  The Court emphasized that Section 404 did not authorize courts to conduct a plenary, de novo resentencing or impose a new judgment.  Rather, as a matter of legislative grace, Section 404 only authorizes a sentence reduction for certain covered offenses, and it does not require the court to consider the 3553(a) factors or hold a hearing with the defendant.  For those reasons, and applying the Court’s precedents, it held that a sentence reduction under Section 404 did not give rise to a “new judgment” for purposes of the bar on second or successive 2255 motions. https://media.ca11.uscourts.gov/opinions/pub/files/201913029.pdf http://defensenewsletter.blogspot.com/

In United States v. Litzky, No. 20-10709 (Nov. 23, 2021) (Jordan, Newsom, Ed Carnes), the Court affirmed defendant's convictions for possessing child pornography, producing it, and conspiring to do the same. Defendant raised two issues on appeal: (1) the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability; and (2) her below-Guidelines sentence was substantively unreasonable. The district court found that the expert's proffered testimony failed to focus on the defendant's specific state of mind at the time of the charged offenses.  Therefore, because it failed to show how the defendant was unable to form the required mens rea, it would only serve to confuse the jury.  The Court agreed, finding that defendant's proffered expert testimony was not keyed to any legally acceptable defense theory.   The Court found that the defendant had failed to demonstrate a compelling reason for making an exception to the expert witness rule in FRE 702.  It reasoned that the defendant's proffered expert testimony was more akin to justification and excuse rather than a legally acceptable theory of lack of mens rea.  The Court also found that defendant failed to show that her proffered expert testimony bore persuasive assurances [...]

In United States v. Grady, No. 20-14341 (Nov. 22, 2021) (Branch, Grant, Ed Carnes), the Court affirmed defendants' convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass. Defendants, members of the Plowshares Movement--equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and others tools--illegally entered the Kings Bay naval base, intending to engage in symbolic disarmament as part of their faith.  They spray-painted numerous anti-nuclear and religious messages at various locations inside the base, poured bottles of human blood at various locations, taped an "indictment" outlining their complaints to a door of one of the buildings, defaced various monuments within the base, and entered restricted areas to hang banners protesting the morality of nuclear weapons and pray.  They were arrested and indicted on charges of: conspiracy; destruction of property on a naval installation; depredation of government property; and trespass. All defendants moved to dismiss the indictment, arguing that their prosecution violated the Religious Freedom and Restoration Act ("RFRA").  Specifically, they asserted that their actions at the Kings Bay naval base were “in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal,” and [...]

In United States v. Ramirez, No.  20-10564 (Nov. 1, 2021) (Wilson, Rosenbaum, Hull), the Court vacated the defendant's sentence and remanded. Defendant purchased firearms and firearm parts and components, often through straw purchasers, and sold them throughout Colombia.  Six firearms found themselves into the hands of members of the National Liberation Army ("ELN"), which the U.S. State Department has designated a foreign terrorist organization.  Defendant pleaded guilty to knowingly providing material support to the ELN, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2. At sentencing, defendant challenged the application of the terrorism enhancement under U.S.S.G. § 3A1.4.  He argued that § 3A1.4 required that the government prove not only his material support to the ELN, but also that his offense conduct was "calculated" to influence, affect, or retaliate against the Colombian government.  Defendant claimed that his motive was to profit financially, not to retaliate against the Colombian government.  The district court overruled defendant's objections, suggesting that the court believed that the mere fact that defendant pleaded guilty to knowingly providing material support to a known terrorist organization per se satisfied § 3A1.4's "calculated" or specific intent requirement. On appeal, the Court vacated the application of the § 3A1.4 enhancement.  The structure of § 3A1.4 establishes [...]