In United States v. Kincherlow, No. 22-11980 (Dec. 13, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed the defendant’s conviction for enticing a minor under 18 U.S.C. 2422(b). First, the Court held that the evidence was sufficient. The Court rejected the defendant’s argument that he did not persuade, induce, coerce, or entice the minor to engage in prostitution on the theory that she was already engaged in prostitution. And his conduct went beyond merely offering her an opportunity to engage in prostitution because he facilitated and instructed her how to do so. Second, the Court held that binding precedent foreclosed the argument that the district court erred by instructing the jury that “induce” meant to “cause.” Finally, the Court held that any variance between the indictment and proof at trial did not affect his substantial rights because the statute and proposed/pattern instructions listed all of the verbs (persuade, induce, entice, coerce) in the disjunctive, affording him sufficient notice of the charges. And, in any event, even where the indictment charges verbs in the conjunctive, the government may still prove one or more of them in the disjunctive where the statute lists them in the disjunctive. Judge Carnes issued a concurrence [...]

In United States v. Perez, No. 22-10267 (Nov. 14, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed Mr. Perez's sentence. While on bond pending trial, Mr. Perez was convicted of two felonies--violating 18 U.S.C. §§ 922(n) and 922(j).  The government informed him that, pursuant to § 18 U.S.C. § 3147, it was going to seek a ten-year consecutive sentence.  In relevant part, § 3147 provides that, if a person commits a felony offense while on pretrial release, he “shall be sentenced, in addition to the sentence prescribed for the offense, to . . . a term of imprisonment of not more than ten years,” with the additional term to be “consecutive to any other sentence of imprisonment.” Here, the § 922(n) conviction carried a statutory maximum sentence of 5 years in prison, while the § 922(j) conviction carried a statutory maximum sentence of 10 years in prison.  Run consecutively, that resulted in a total maximum sentence of 15 years, notwithstanding the consecutive 10 years' tacked on pursuant to § 3147.  Mr. Perez objected to the 10-year consecutive sentence, asserting that there was an Apprendi error because (a) the 10-year sentence exceeded the maximum sentences permitted for his underlying offenses of conviction, and (b) the [...]

In United States v. McCall, No. 21-13092 (Oct. 27, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the denial of Mr. McCall's motion to suppress.   The Court considered how the exclusionary rule's good faith exception applies to the search of a cloud storage account.  The warrant in question--for Mr. McCall's iCloud account--permitted a search of almost all of the account's data, with no time limitation.  In affirming the denial of the suppression motion, the Court noted that although Fourth Amendment standards are largely settled, their application to developing areas of technology are not, and law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances.  Here, though the government conceded that the iCloud warrant fell short in certain respects, reasonable officers could have believed it to be valid.   Of note, with regard to a warrant's particularity, the Court noted that the preferred method of limiting the scope of a search warrant for a cloud account will usually be time-based.  In the Court's view, by narrowing a search to the data created or uploaded during a relevant time connected to the crime being investigated, officers can particularize their searches to avoid general rummaging. As a result, cloud or data-based warrants [...]