In United States v. Grushko, No. 20-10438 (Sept. 23, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the defendants’ convictions and sentences for conspiracy to commit access device fraud.
First, the Court held that officers did not violate the Fourth Amendment by entering the defendants’ home after detaining them outside. Under the totality of the circumstances, the officers had reason to believe that one of the defendants was still inside the home because they did not know the identity of the men they had detained. Although they had previously seen a picture of the defendant, his appearance had since changed, and the officers were not permitted to look through the wallets of the men because they were not under arrest. And the officers heard noises from inside the home, and so had reason to believe that the defendant was still inside.
Second, the district court did not abuse its discretion in making comments to the voir dire panel about types of forensic evidence that might be seen on TV. Although the statements were unnecessary and unwise, it was not reversible error because the court did not suggest that the government did not have to prove the elements or was relieved its burden of proof. Nor did the statements create a mandatory presumption in favor of the government or entitle the jury to discount the defendant’s arguments in closing about whether the absence of fingerprint evidence created a reasonable doubt.
Third, as for the sentences: it was not impermissible double counting to apply a two-level enhancement for possessing device-making equipment just because that conduct underlied the conviction; there was no clear error in applying an aggravating-role enhancement because the defendants were organizers and leaders of the scheme, which involved another participant, and it did not matter if the two defendants were equally culpable; the district court adequately explained the sentence, and so it was not procedurally unreasonable; and any error as to the loss calculation was harmless because the court said it would have imposed the same sentence, and that sentence was not substantively unreasonable.
Judge Jordan concurred. He joined the opinion in full, but wrote separately to emphasize that the court’s statements during voir dire were improper.
https://media.ca11.uscourts.gov/opinions/pub/files/202010438.pdf