In United States v. Pugh, No. 21-13136 (Jan. 18, 2024) (Lagoa, Brasher, Boulee (N.D. Ga.)), the Court affirmed Ms. Pugh's conviction. The Court addressed an issue of first impression regarding the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce.  It was alleged that during a protest in Mobile, Alabama, Ms. Pugh shattered the window of a police car that was blocking protestors from walking on the interstate.  Ms. Pugh moved to dismiss the indictment, arguing that § 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress’s power to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of speech and expressive conduct, activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment’s Due Process Clause. With regard to Ms. Pugh's first argument--that § 231(a)(3) is unconstitutional because it exceeds Congress's power under the Commerce Clause--the Court disagreed because the statute's jurisdictional element--the requirement that the civil disorder “in any way or degree obstruct[], delay[], or adversely affect[] commerce”--is enough to limit the statute’s scope [...]

In United States v. Gatlin, No. 20-14149 (Jan. 5, 2024) (Jordan, Luck, Lagoa), the Court reversed Mr. Gatlin's conviction and sentence as to witness tampering, but affirmed his sex trafficking of a minor and production of child pornography convictions and sentences, as well as the restitution order. Mr. Gatlin appealed his convictions and sentences for sex trafficking of a minor (Count 1), production of child pornography (Count 2), and witness tampering (Count 3). On appeal, Mr. Gatlin argued first that the evidence was insufficient as to all counts.  The Court disagreed with regard to Count 1, finding the evidence sufficient.  With regard to Count 2--production of child pornography--the Court disagreed with Mr. Gatlin's argument that § 2251 requires a specific intent to produce child pornography and that child pornography produced incidentally to a sexual encounter is insufficient.  The Court held that specific intent does not require that the defendant be single-minded in his purpose--it was enough for the government to show that making explicit photographs was a purpose for engaging in sexual activity with the victim.  With regard to Count 3--witness tampering--the Court agreed with Mr. Gatlin that the evidence was insufficient as to intent because he asked the victim to lie only to [...]

In United States v. Fey, No. 22-11373 (Dec. 28, 2023) (William Pryor, Rosenbaum, Abudu), the Court affirmed the defendants’ convictions for distributing meth and for conspiring to and actually killing a cooperating witness by administering a lethal amount of meth and fentanyl. First, the Court found no reversible Rule 404(b) error. At trial, the government introduced testimony that, years after the murder, one of the defendants solicited someone to murder someone else who witnessed the murder. The Court held that this evidence was extrinsic (not intrinsic) and thus fell under Rule 404(b), as that conversation occurred years after the murder conspiracy was completed. And the Court held that the government failed to provide the requisite notice of this testimony before trial under Rule 404(b). However, the Court determined that this error was harmless because the government’s pretrial brief and jury instructions, filed months in advance of trial, put the defense on notice of this testimony. In addition, the evidence was supported by sufficient evidence and did not violate Rule 403 because, although testimony that Fey sought to have a witness killed was “not flattering,” it was not prejudicial than probative. Second, the Court did not commit plain error by failing [...]

In United States v. Hurtado, No. 21-12702 (Dec. 20, 2023) (Grant, Tjoflat, and Ed Carnes), the Court affirmed the defendants’ MDLEA convictions. Judge Tjoflat wrote the opinion for the Court, with the exception of one point, which the other two panel members rejected in a concurrence. First, the Court held that there was jurisdiction over the vessel because Cameroon properly consented to U.S. jurisdiction, which was proven conclusively by the certificate of the Secretary of State. In addition, Cameroon subsequently waived jurisdiction after the indictment, which was not too late. And even though Cameroon had deleted the vessel from its registry by the time it consented, that would render the vessel stateless and subject to U.S. jurisdiction anyway. Second, the Court upheld the denial of a motion to suppress. As an initial matter, there was the question whether the Fourth Amendment applies to a foreign national in international waters. Although the Supreme Court’s decision in Verdugo-Urquidez and the Eleventh Circuit’s decision in Cabezas-Montano held that it did not, Judge Tjoflat interpreted the Eleventh Circuit’s decision in Tinoco to hold that it did, and he believed that holding was binding. Judge Carnes and Grant disagreed with that interpretation of Tinoco. Nonetheless, [...]

In United States v. Sotis, No. 22-10256 (Dec. 20, 2023) (William Pryor, Marcus, Mizelle (M.D. Fla.)), the Court affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya. First, the Court held that the evidence was sufficient that he acted willfully and that he acted in conspiracy with another person. The Court also held that, even if the evidence at trial varied from the facts alleged in the indictment about the type of equipment exported, there was no prejudice because he conceded at trial that the equipment required a license to export and no license was obtained. Second, the Court rejected the argument that an expert witness and a lay witness invaded the province of the jury by opining on the ultimate issue. The expert’s testimony that the equipment required a license did not violate Rule 704(b) because it did not opine on the defendant’s mental statute, and the defendant conceded that point. The lay witness’s testimony that he had never seen a case with this level of willfulness was improper because it went to the defendant’s state of mind, but it did not affect the defendant’s substantial rights given the overwhelming evidence of willfulness. Finally, the Court [...]

In United States v. McCoy, No. 21-13838 (Dec. 14, 2023) (Jordan, Newsom, Grimberg (N.D. Ala.)), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act. The Court re-affirmed its prior precedent holding that a defendant is bound by pre-Apprendi, judge-made drug-quantity findings for purposes of Section 404. The Court further rejected the defendant’s argument that this precedent violated due process on the theory that, at the time of his sentencing, he had no notice that he needed to object to the drug-quantity finding beyond 50 grams of crack. The Court explained that due process did not require defendants to receive notice about hypothetical, future ameliorative legislation that is then unknown. Judge Grimberg concurred, sympathizing with the defendant’s due process argument and wondering if defendants must now preserve arguments based on future legislation. https://media.ca11.uscourts.gov/opinions/pub/files/202113838.pdf ttps://defensenewsletter.blogspot.com/