In United States v. Beach, No. 21-11342 (Aug. 30, 2023) (Luck, Lagoa, Tjoflat), the Court affirmed Mr. Beach's conviction. Mr. Beach was convicted of tampering with a witness, in violation of 18 U.S.C. § 1512(a)(2)(A).  He appealed his conviction on the ground that the evidence was insufficient to convict him of the offense in 3 respects: (1) the alleged threat of physical force only related to a criminal investigation--a controlled drug purchase--and not an “official proceeding”; (2) the evidence failed to establish that he intended to prevent the witness from testifying in an official proceeding because he did not know about or foresee that there would be a grand jury or court proceeding; and (3) the evidence failed to establish that he was the person who threatened the witness because the government did not authenticate the jail calls or call the witness to testify that he was the person on the phone with her. As an initial matter, the Court reviewed Mr. Beach's first two issues for plain error only because they were not specifically raised in the district court.  That is, although Mr. Beach moved for a judgment of acquittal on the government's failure to prove "the essential elements of the charge," this [...]

In United States v. Wiley, No. 22-10179 (Aug. 29, 2023) (Jill Pryor, Grant, Maze (N.D. Ala.)), the Court affirmed Mr. Wiley's convictions. Mr. Wiley was charged with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); five counts of aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and five counts of aiding and abetting to use, carry, and brandish a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. On appeal, he first argued that the district court abused its discretion by striking a juror for cause because of her religious beliefs.  That juror told the court that she was a a Jehovah’s Witness and would have difficulty judging others because she did not “have a lot of faith in the legal—the justice system.”  The Court found no abuse of discretion because courts may exclude or remove jurors who make clear that they may not sit in judgment of others based on their religious beliefs. He next argued that the district court plainly erred by allowing law enforcement officers to give lay opinion testimony identifying Mr. Wiley in the surveillance footage presented at [...]

In United States v. Curtin, No. 22-10509 (Aug. 28, 2023) (Wilson, Newsom, Luck), the Court affirmed Mr. Curtin's convictions and 60-month sentence. Mr. Curtin was convicted of (1) mailing a threatening communication, in violation of 18 U.S.C. § 876(c), and (2) threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B). First, Mr. Curtin challenged the sufficiency of the evidence as to both counts.  With regard to the § 876(c) count--mailing a threatening communication--the Court found sufficient evidence to convict.  In so holding, the Court noted that the Supreme Court's holding in Counterman v. Colorado did not change its calculus because the record evidence sufficiently demonstrated that Mr. Curtin acted with a mens rea of at least knowledge, which surpasses the mens rea of recklessness that the Supreme Court found was required in order to satisfy any First Amendment concerns raised in Counterman.  With regard to the § 115(a)(1)(B) count--threatening a federal judge--the Court similarly found sufficient evidence to convict. Second, Mr. Curtin argued that the district court erred when it denied his motion to dismiss the indictment on the ground that it violated 18 U.S.C. § 4241(d), which states that a district court may commit a defendant to the “custody of the Attorney General” to be hospitalized for “treatment [...]

In United States v. Gladden, No. 21-11621 (Aug. 17, 2023) (Wilson, Jill Pryor, Covington (M.D. Fla.)), the Court affirmed as to Ms. Linton, and affirmed in part, vacated in part, and remanded as to Mr. Gladden. Ms. Linton and Mr. Gladden were convicted of conspiracy to commit health care fraud and mail fraud, and the substantive offenses of health care fraud, mail fraud, and aggravated identity theft, for their roles in a multi-year scheme to defraud insurance companies.  It was alleged that they and several others at Global Compounding Pharmacy received inflated reimbursement payments by billing for medically unnecessary and fraudulent prescriptions. With regard to Ms. Linton, the Court found the evidence to be more than sufficient to support her convictions.  The Court disagreed that the Supreme Court's decision in Dubin required vacatur of her aggravated identity theft convictions.  It found that even under the circumscribed reading of Section 1028A set forth in Dubin, Ms. Linton's conduct fell within the statute's purview.  That is, unlike in Dubin, Ms. Linton did not provide a service to a client while merely misrepresenting how the service was performed to inflate the bill. Rather, Ms. Linton used the means of identification of former patients and prescribing doctors to overbill for certain products. [...]

In United States v. Bird, No. 22-10947 (Aug. 17, 2023) (Wilson, Newsom, Lagoa), the Court affirmed Mr. Bird's convictions for structuring. Mr. Bird was convicted of illegally structuring two separate land-sale contract payments of around $270,000 each.  On appeal, he challenged the sufficiency of the evidence to support his convictions as well as a jury instruction. The Court found the evidence more than sufficient to support Mr. Bird's structuring convictions.   He made 22 cash deposits below $10,000 over seven days to satisfy the first payment, and then made 38 cash deposits under $10,000 over the course of seven and a half months to satisfy the second payment.  The Court held that a jury could certainly look at this flurry of deposit activity and reasonably infer that Mr. Bird made these staccato payments for the purpose of evading reporting requirements. With regard to the Mr. Bird's challenge to the jury instructions, the Court found that he invited any error.  He proposed the jury instructions jointly with the government, and the court used them.  Thus, even if the instructions were plainly erroneous, the Court declined to review his challenge. https://media.ca11.uscourts.gov/opinions/pub/files/202210947.pdf ttp://defensenewsletter.blogspot.com/  

In Caldwell v. United States, No. 19-15024 (Aug. 16, 2023) (William Pryor, Jill Pryor, Coogler (N.D. Ala.), a consolidated appeal, the Court vacated one of Mr. Caldwell's convictions and his sentence due to an intervening precedent, but otherwise affirmed the convictions and sentences of the other defendants. Defendants--alleged members of the Gangster Disciples gang--were charged with conspiring to conduct and participate directly and indirectly in the conduct of the Gangster Disciples through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(c).  The defendants were also charged with the enhanced sentencing provision of the Act, for allegedly joining and remaining in the conspiracy, knowing and agreeing that members of the enterprise engaged in acts involving murder, in violation of O.C.G. 16-5-1.  They raised a number of challenges on appeal. First, they challenged the district court's denial of their motion to show prospective jurors a video on unconscious bias prepared by the district court for the Western District of Washington as well as proposed voir dire questions regarding the same.  The Court found no abuse of discretion by the district court. Second, they challenged the district court's denial of their motion to admit [...]