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In U.S. v. McGuire, the defendant challenged the sufficiency of the evidence to support his conviction of attempting to damage, destroy, disable, set fire to, or wreck an aircraft in the special aircraft jurisdiction of the United States in violation of 18 U.S. C. §32(a)(1). After McGuire shot of several rounds of a gun near his driveway, neighbors called police, who responded with officers on the ground and a police helicopter. As the helicopter shined its spotlight in McGuire’s direction, McGuire raised his arm and fired one round in the sky. A deputy saw him fire in the direction of the spotlight as the helicopter orbited and another witness said he fired in the general direction of the helicopter. McGuire said he went outside to fire into the sky randomly without meaning to hit the helicopter and not knowing it was in the sky, but witnesses contradicted his testimony by attesting to the noise and vibrant light the helicopter produced. McGuire argued the the deputy’s testimony was inherently incredible and that a reasonable person would believe it beyond a reasonable doubt because McGuire stood still without moving to follow the helicopter’s path or tacking it as he fired. The 11th Circuit found McGuire’s argument is simply disputing the inference a jury can draw from the evidence, and the inferences have to be drawn in favor of the jury verdict.

The 11th Circuit also upheld district court’s finding that the offense of attempting to damage destroy, disable, or wreck an aircraft is a crime of violence for the purpose of 18 U.S.C. 924(c)(1)(A), which imposes a consecutive sentence for anyone using a firearm in connection with a crime with a crime of violence. The court used the “categorical approach” because § 924 defines a criminal offense as “an offense” that “has as an element the use, attempted use or threatened use of physical force against the person or property of another” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used.” The categorical approach must reference the elements of the offense and not the actual facts of McGuire’s conduct, and for this reason, even though firing a gun at a helicopter is unmistakably violent, the categorical approach requires the court to determine whether the crime, in general, plausibly covers any non-violent conduct. “Only if the plausible applications of the statute of conviction all require the use or threatened use of force can McGuire be held guilty of a crime of violence.”

The 11th circuit found that a federal jurisdictional element of the statute requires that the aircraft be “in flight” which is defined as encompassing the time the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave.” In other words the conviction was for attempting to damage or disable an aircraft that was either flying or ready to take off or arriving at its destination. In that context the offense was offense necessarily involved the attempted or threatened destruction of sensitive property or lives and was a crime of violence.

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Jimenez was convicted of violating 18 U.S.C. § 666 for misapplying funds from a federally funded program. He challenged the factual sufficiency of his conviction to the 11th Circuit arguing that he did not misapply funds within the meaning of 666(a)(1)(A). The 11th Circuit found in United States v. Jimenez that no federal crime took place and reversed the conviction with directions to enter a judgment of acquittal. Because the facts are important in a judgment of acquittal, the background is set out here.

Jimenez was Deputy Director of Fiscal and Administrative Services for Hillsborough County’s Head Start Program, a federally funded program that provides educational and health care to preschool children from low-income families. Jimenez’s wife Melendez, a microbiologist, wrote a children’s book intended to educate children “about germs and their relationship to disease” She sent her husband, Jimenez, an email suggesting that Head Start could use to the book to “encourage kids to read.” Jimenez relayed the information to his peer at Head Start, Mason, who served as the Deputy Director of Program services. Mason knew that Jimenez’s wife authored the book. Jimenez and Mason brought a copy of the book to Bell, a registered nurse with Head Start and asked Bell to look at the book for her opinion on whether to order copies of the book for the Head Start children. Bell nixed the idea because she thought the book was too advanced. Bell showed the book to Navejar, another official at Head Start, who recommended against purchasing the book because it implicated a conflict of interest for Jimenez’s wife to profit from a head Start transaction. Bell and Navejar brought this concern to the attention of Knight, Bell’s supervisor. Despite Bell and Navijar’s concerns, Mason, who supervised Knight, told Bell to order the book. Because Bell did not have purchasing privileges, she referred the task to Navejar. Soon after, Jimenez e-mailed Navejar price quotes on the book. Mason initiated and approved a $9,000 order for 750 copies of the book. Melendez delivered the books, a report authorizing payment to Melendez was issued, and Jimenez signed a form acknowledging the books had been received. Shortly afterwards a check was issued to Melendez. Throughout this period, Head Start required every employee to complete disclosure forms within 45 days of any change in the conflict of interest status, including circumstances in which an employee’s spouse entered into a contractual relationship with Head Start. Jimenez failed to file a disclosure the conflict of interest stemming from his wife’s transaction with Head Start.

Jimenez was indicted and convicted of misapplying funds from a federal program and honest services fraud. The judge entered a judgment of acquittal for the honest services count but upheld the § 666(a) conviction. A conviction under § 666(a) requires the prosecution to show (1) Jimenez was an agent of Head Start, (2) he obtained funds by fraud or intentionally misapplied property of Head Start property in excess of 5,000, and (3) Head Start received federal assistance. The prosecution’s theory was that Jimenez “intentionally misapplied” $9,000 in Head Start funds by brokering 750 copies of his wife’s book. The court found the term “misapply” connotes the offender exercises some degree of power over the funds of the agency. There was no evidence demonstrating that Jimenez misapplied any Head Start funds. Even though there may have been an conflict of interest, standing alone without evidence of bribe or kickback is insufficient to sustain a conviction for intentionally misapplying funds for a violation of §666. The evidence showed it was Mason, not Jimenez, who approved purchase and directed the Head Start funds for payment of the book. Though Jimenez did not disclose his wife’s financial stake in the transaction, the 11th Circuit is “reluctant to metamorphose every municipal misstep into a federal crime” and the court would not stretch the language of §666 to find a white collar crime here.

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The issue here is whether the unauthorized transfer of an individual’s identifying information to another party involves the actual use of that information for a fraudulent purpose such that the individual whose identifying information was transferred is as victim under U.S.S.G 2B1.1(b)(2)(B). This sentencing guideline provides for a 4 level enhancement if the offense involved at least 50 but less than 250 victims. The defendant in U.S. v. Hall pleaded guilty to bank fraud conspiracy, identity theft and access device fraud and wrongfully obtaining and transferring individually identifiable health information for personal gain. The district court applied a four level enhancement because the offense involved more than 50 but less than 250 victims. Hall challenged the enhancement arguing that the unlawful transfer or sale of identifying information does not equate to the actual use of identifying information for a fraudulent purpose. The conspirators actually used 12 of the 141 individuals to obtain fraudulent credit cards the so Hall claimed there were less than 50 victims and the 11th Circuit agreed.

Hall worked as an office assistant in a Coral Springs doctor’s office where she had access to patients’ dates of birth, social security numbers and other protected information. She received $200 for each individual’s information she provided to the coconspirators. She received only $200 though sent the codefendants 65 to 141. Her conspirators used 12 of the patients’ personal information to obtain fraudulent credit cards. The government’s position was that all 141 patients whose information was transferred were victims.

The 11th Circuit found that while the 12 individuals were victims, the remaining individuals whose information was merely transferred were not victims under the Application notes which define victims as “any person who sustained any part of an actual loss…who sustained bodily injury as a result of the offense.” Under this enhancement, whether an individual was a victim depends on whether their identification was used. The conspiracy’s purpose was to obtain cash advances and purchase using fraudulent credit cards. Hall’s mere transfer of the personal identifying information, without more action, did not involve using the information to procure fraudulent credit cards and cash and the personal information was not used until the coconspirators secured the credit cards.

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First, you need the background facts of McIntosh’s first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh’s sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh’s second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

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Sandra Day O’Connor sat on this panel also. The opinion was written by Judge Pryor. In U.S. v. Garcia-Sandobal, the defendant, citizen of Honduras, entered the United States illegally and committed a variety of crimes. After he was deported in 1998, he reentered illegally, and committed more crimes, including a conviction for disorderly intoxication for which he was sentenced to 50 days in jail. In 2010 he was indicted in federal court located in Florida with the federal crime of being found in the United States after having been previously removed under 8 U.S.C. section 1326.

Section 1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant was removed following a conviction of an aggravated battery. The indictment alleged Garcia’s three prior aggravated felonies imposed before his removal including 1996 convictions for battery on a law enforcement officer and obstructing an officer with violence. At Garcia’s guilty plea he announced that he was preserving the right to challenge the classification of the prior sentences as aggravated convictions. As expected, the pre-sentence investigation report recommended a 16 point enhancement base on the 1996 conviction for obstructing an officer with violence.


Garcia’s claim that the federal district court erred when it accepted his guilty plea was waived by his guilty plea.

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Happy New Year everybody. Sandra Day O’Connor, retired Supreme Court Justice participated on the panel for U.S. v. Petite, the first criminal decision for 2013 from the Eleventh Circuit. Judge Marcus wrote the opinion. In U.S. v. Petite the defendant was indicted in a federal court in Florida with federal crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). At sentencing the pre-sentence report qualified him for an enhancement under the Armed Career Criminal Act (A.C.C.A) 18 U.S.C. 924(e) because he had three predicate prior felony convictions that were used to apply the enhanced sentence under the guidelines, giving him a range of 188-235 months. The one predicate conviction Petite challenged was a conviction for intentional vehicle flight from a police car in violation of Florida statutes. The Eleventh Circuit upheld the district court’s decision finding the prior conviction is a violent felony under the ACCA based on the Supreme Court’s decision in Sykes v. U.S. which held that a similar conviction under the Indiana vehicle flight offense was a violent felony for ACCA purposes dictated the outcome of this case.

The ACCA provides for a fifteen year minimum enhancement for a violation of the felon in possession statute if the person has three prior felony convictions for a crime of violence or serious drug offense. The provision has three basic categories of qualifying offenses. The first two categories involve specific enumerated offenses, and the vehicle flight conviction did not fall under the first two categories. The third category, the one at issue here, is the residual clause. It consists of those crimes not otherwise enumerated in the statute, which “involve conduct that presents a serious potential risk of physical injury to another.” 924(e)(2)(B)(ii).

Under Supreme Court precedent, court applying the ACCA residual clause to determine whether a prior conviction is a crime of violence must use what the court calls the “categorical approach,” whereby the court must look to the fact of conviction and the statutory definition of the prior offense, and not consider the particular facts disclosed by the record of the conviction. In other words the court must consider whether the elements of the offense are of a type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of the particular offense. Using this approach, the Eleventh Circuit rejected Petite’s attempt to distinguish Sykes by distinguishing the facts surrounding Sykes’ conviction from the detailed facts surrounding his vehicle flight.

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When Rozier was sentenced in 2001 Rozier distributing crack cocaine, the sentencing court in the southern district of Florida enhanced the sentencing guideline applying the career offender provision because it found he had two prior felony convictions for a violent crime. One of the two predicate prior was a Florida felony for battery on a law enforcement officer in violation of Fla. Stat. §784.07(2)(b). Rozier appealed the enhancement on the grounds that the felony was not a crime of violence under §4B1.2(a) of the guidelines. The Eleventh Circuit affirmed the sentence in U.S. v. Rozier (Rozier I) reasoning that the crime of battery qualified as a crime of violence under the residual clause of guideline §4B1.2(a)(2) because in committing the unlawful touching “the offender creates the potential for violence to the officer, a violent response on the officer’s part and the risk of harm to bystanders.”

Following the decision in Rozier I, the Supreme Court decided Johnson v. U.S., 130 S.Ct. 1265 (2010), that Florida’s battery offense is not a “violent felony” under the Armed Career Criminal Act (ACCA) elements clause of 18 U.S.C. 924. In U.S. v Rozier, the defendant filed a 2255 motion to set aside his sentence relying on the Johnson case and the district court in Ft. Lauderdale denied the motion and issued a certificate of appealability on the issue of whether Johnson should be given retroactive application so that Rozier’s career offender status should be eliminated and he should be resentenced. But the Eleventh Circuit phrased the issue in this case as follows: “Whether the Supreme Court’s Johnson decision is a change in the controlling law that was applicable at the time of Rozier’s sentencing and at the time we affirmed his sentence.”

The Eleventh Circuit ruled that Johnson was not a change in the law. While the Johnson decision did find that the Florida felony of battery is not a violent felony under the elements clause of the ACCA, the Supreme Court did not reach the issue of whether the crime of battery is a crime of violence under the residual clause of the statute. Because there was no change in the controlling law since the Eleventh Circuit affirmed Rozier’s conviction in the first appeal, 2255 relief cannot be given. Even applying a modified categorical approach, which permits the court to determine which statutory phrase was the basis for the conviction by consulting the trial record, charging documents, plea agreements, transcripts of plea agreements, etc., there was a factual basis for the sentencing court to find that Rozier’s battery conviction was a crime of violence. The original panel affirmed the finding the prior conviction fit within the residual clause, and the Eleventh Circuit would not reverse the original panel’s decision based on Johnson.

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In U.S. v. Thompson the defendant appealed the district court’s denial of his motion to dismiss the federal criminal charge in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g) The defendant in U.S. v Thompson became a convicted felon following his conviction for first degree assault in an Alabama state court in 1994. As a convicted felon he lost the right to possess a firearm under federal law. He also lost the right to vote, the right to hold public office and the right to serve on a jury under Alabama laws. In 2005 he applied to the State of Alabama for restoration of his civil rights and received from the State of Alabama Board of Pardons and Paroles a Certificate of Restoration of Voter Registration Rights. It advised him that his right to vote had been restored in the State of Alabama. The certificate advised Thompson that the “certificate is not a pardon and does not restore, remove or address any other rights , privileges or requirements.” The State also informed him “this certificate serves only the function of allowing you to vote.”

Thompson challenged his conviction claiming that he should not have been convicted under §922(g)(1) because he argued his civil rights had been restored. Section 921(a)(20) excludes any conviction under this statute if the person has had “civil rights restored.” Because the statute does not clarify which civil rights must be restored, prior Eleventh Circuit cases have interpreted this to mean the civil rights must be “unreservedly” restored to qualify for the exception. The open question that was not yet resolved by the court was whether all civil rights must be restored or merely some of them, and if so, which rights. Here the question was whether the restoration of just voting rights is sufficient restoration of civil rights to qualify for the exception under the statute. The court has in the past ruled that the three key civil rights which must be restored to qualify under the statute are: 1) the right to vote, 2) the right to serve on a jury, and 3) the right to hold public office. The Eleventh Circuit relied on a majority (six) of the other circuits that interpret “civil rights” as plural and require more than of these three key civil rights be restored to satisfy the statutory exception to the prohibition of possession of a firearm by a convicted felon. Though Thompson’s voting rights includes several rights, including the right to vote in federal elections, state elections, and the right to vote in primaries, Thompson only had one of the key civil rights restored. The restoration of only one of these key rights does not satisfy the language of §921(a)(20). The restoration of the right to vote by itself was insufficient to satisfy the exception. This issue will likely be seen in Miami and other areas of Florida where persons often try to restore their civil rights after a felony conviction.

The Eleventh Circuit also resolved a subject matter jurisdiction question. Thompson entered into an unconditional plea and raised the issue after plea and before sentencing. The Eleventh Circuit found it was appropriate to address the matter. Normally a guilty plea acts as a waiver to all non-jurisdictional challenges to a conviction, challenges to subject matter jurisdiction in federal court cannot be waived. Thompson’s argument that the indictment fails to charge an offense that implicates the district court’s jurisdiction was not waived by his unconditional plea.

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In U.S. v. Laist, FBI agents traced child pornography images to a computer used by Laist, a University of Georgia student. They paid a visit to the student’s residence to ask him for consent to view his computer. Laist then provided the agents with consent to look at the computer and gave the agent his username and password. The agent concluded that there was child pornography on the computer and asked Laist if he could take it to the FBI office for further analysis. The agent was convinced it contained child pornography. Laist gave consent of the agent to take the computer for further examination but asked for and received permission to copy documents he needed for school. The computer was taken on March 4, 2009, and on March 11, 2009, Laist’s attorney sent a letter revoking his consent. The letter was received on March 12, 2009. Once this notice was received, the FBI agent who seized the computer began the process of drafting a search warrant application by preparing the affidavit. The warrant affidavit and application were completed and submitted to the Magistrate judge on April 7, 2009, but the magistrate judge did not issue a warrant until April 13, 2009. Ultimately the agents found the computer contained child pornography images and Laist was charged in federal court with possession of child pornography.

The issue was whether it was reasonable for the FBI to wait 25 days to prepare the search warrant application while holding Laist’s computer based on probable cause. The 11th Circuit found the 25 day delay was not unreasonable. Laist’s possessory interest in the content of the computer was diminished for several reasons. First, Laist was able to remove whatever files he needed. And he had an opportunity to copy what he needed. Though he revoked consent he did not request additional files. Furthermore he admitted there was child pornography on the computer.

The government still obligated to diligently obtain a search warrant. The 11th circuit upheld the district court’s finding that the agents did act diligently by finding that the agent put the ball in motion the very first day he received notice Laist revoked his consent. The agent began writing the affidavit on the March 10 and submitted his first draft to the US attorney 10 days later. The court noted findings by the district court: that the agent put considerable effort into preparing the affidavit which contained valuable information about how theses crimes are committed such as an explanation of the peer-to-peer file sharing used to distribute the child pornography; that it contained extensive information about the defendant’s conduct including descriptions of how the Innocent Images National Initiative conducted several online undercover sessions; and that the affidavit did not contain a whole lot of boilerplate. In the weeks following the AUSA and the agent exchanged drafts. Furthermore, the investigation took a year and involved numerous agents. The government sufficiently showed diligence. Under the totality of the circumstances the facts show the government’s delay was reasonable.

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In U.S. v. Duran, the Eleventh Circuit ruled that a party claiming an interest in property subject to a government’s restitution lien has the right to have a federal court adjudicate on their claim under 28 U.S.C. § 3203. In this case, Duran was convicted in federal court in Miami of Medicare fraud and sentenced to 50 years in prison. In addition to his jail sentence the district court entered a restitution judgment against Duran in favor of the United States in the amount of $87 million dollars. The United States applied for a writ of execution against an apartment Duran owned to collect the judgment and the clerk issued a writ of execution. The writ ordered the U.S. Marshal to satisfy the judgment by levying on and selling the apartment. One month later, the Defendant’s ex-wife moved to dissolve the writ of execution, arguing she is an “innocent owner” of the apartment and requesting a hearing on the issue of her legitimate ownership of the apartment, the concerns over notice and due process, and her complete independence from the defendant, her former spouse. She alleged that she and Duran divorced in June of 2010 and as part of the divorce settlement he agreed to transfer his interest in the apartment to the ex-wife. In July of 2010 he executed a deed that conveyed his interest in the apartment to his ex-wife, and she retained counsel to properly record the deed in New York. Unfortunately for her, the attorney never completed the recording process and her deed was not recorded.

The United States opposed the Carmen’s motion to dissolve the writ of execution and the district court denied the motion on the ground that it lacked jurisdiction to make findings with respect to Duran’s divorce dispute and corresponding property disputes. While the government agreed she was one-half owner of the property when the government recorded its lien, it argued that its lien took priority over her unrecorded claim to sole ownership of the property. The ex-wife countered that she was the sole owner and the government could not levy on the property. She claimed she was unaware that her attorney failed to record the deed.

The Eleventh Circuit affirmed that the Fair Debt Collection Practices Act provides the civil procedure for the government to satisfy a restitution judgment in a criminal case, and the Act gives the government authority to levy on property owned by the debtor, including property jointly owned by another person. The government may levy on property co-owned by the debtor and another person to the extent allowed by the law of the state where the property is located. Furthermore the government must give notice of its application for a writ of execution to any persons who have an interest in the property. The district court must determine ownership interest of the debtor (the defendant) and any persons who move to dissolve the writ (the ex-wife). The Eleventh Circuit concluded that the district court erred when it refused to adjudicate the ex-wife’s motion to dissolve or stay the writ of execution.

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