CA11: Money Laundering and Foreign Bribery (Haiti)

  • JURORS:  A district court does not abuse its discretion when it questions jurors as a group (rather than individually) about mid-trial publicity.  (See concurrence)
  • SUFFICIENCY OF THE EVIDENCE:  As the government needed to establish that Teleco was an instrumentality of Haiti in order to prove that the scheme to launder money allegedly involved the proceeds of violations of the Foreign Corrupt Practices Act, the evidence was sufficient that Haiti controlled Teleco where Haiti owned 97% of the shares in Teleco, the government appointed the board of directors, the government granted Teleco a monopoly over telecommunication services, and everyone considered Teleco a public administration.
  • JURY INSTRUCTIONS:  The district court did no err by refusing a proferred jury instruction on the exception for routine government action because the defendant failed to introduce evidence relevant to the jury instruction.

JORDAN J., concurring:

“For me, the claim regarding the district court’s decision not to question Juror One about the note she submitted on the second day of trial is a close one…”

USA v. Duperval, 12-13009 (11th Cir. Feb, 9, 2015)

FLSD Judge Jose Martinez

CA11: Improper to Admit Hearsay Testimony Between Counsels After Death of Defense Counsel

After his 2007 conviction for conspiring to possess with intent to distribute, Marcus Rivers filed a motion to vacate his sentence under 28 U.S.C. § 2255, alleging that his trial attorney — who died before Rivers filed his § 2255 petition — was constitutionally ineffective in several ways. At an evidentiary hearing on Rivers’ claims, counsel for Rivers’ codefendant testified, in relevant part, about conversations he had with Rivers’ lawyer before the trial.

However, the district court erred by admitting the statements because the statements admitted under Rule 807 lacked the “circumstantial guarantees of trustworthiness”.  However, the affirmed the denial of habeas relief because, even after excising the improperly admitted testimony of his codefendant’s counsel, Rivers failed to meet his burden of proving the claims in his petition.

Rivers v. USA, 12-15208 (11th Cir. Feb. 5, 2015)


CA11: Conspiracy to Distribute Oxycodone and Cocaine

Affirming multiple convictions related to a conspiracy to distribute cocaine and Oxycodone,

  • SUFFICIENCY OF THE EVIDENCE – PHONE CALLS: Even though the government only presented evidence of wiretapped telephone calls between defendants which were devoid of the words “cocaine”, “Oxycodone”, “drugs” or the like, the jury reasonably could have found the defendants guilty because the defendants used veiled language the jury could infer referred to distributing cocaine.
  • SUFFICIENCY OF THE EVIDENCE – CONSPIRACY: The government presented ample evidence from which a jury could infer that the defendant entered into a conspiracy to transport and distribute oxycodone based on travel records and the defendant’s own admission upon his arrest which showed he made multiple trips transporting oxycodone from Florida to Boston.
  • INDICTMENT – CONSTRUCTIVE AMENDMENT: While the indictment charged that the defendants conspired to distribute drugs from 2000-2010, evidence that the defendants sold drugs together in 1995 did not constitute a constructive amendment of the indictment, but rather was admissible to complete the story and was inextricably intertwined with the crime charged.
  • INDICTMENT – MATERIAL VARIANCE: While the defendants argued that a material variance occurred because the indictment charged a single conspiracy but the evidence showed multiple distinct conspiracies, the jury could reasonably have found a single conspiracy existed.

USA v. Holt et al, 13-10453 (11th Cir. Jan. 30, 2015)


CA11: Travelling to Meet Minors for Sex

The plain language of 18 USC 2423(b) reads:  “A…United States citizen…who travels in foreign commerce…for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than 15 years, or both.”

JUDGMENT OF ACQUITTAL:  After the government charged the defendant with travelling to Haiti for the purpose of engaging in sex acts with minors, the district court did not err in denying a motion for judgment of acquittal because the statute does not require the government to prove that the sex act occurred in the “special maritime and territorial jurisdiction of the United States”, but rather that the same sex act would violate chapter 109A if it had actually occurred within the “special maritime and territorial jurisdiction of the United States”.

JURY INSTRUCTION:  Where defense counsel agrees to a jury instruction after the district court sustains his objections to those instructions, the doctrine of invited error precludes the defendant from appealing those instructions, even if the instructions constitute plain (fundamental) error.

STATUTORY CONSTRUCTION:  Because the plain language of 18 USC 2423(b) does not require that the defendant “knowingly” traveled in foreign commerce for the purposes of engaging in a sex act with a minor, the defendant is not entitled to a jury instruction requiring the jury to find he knowingly violated the statute.

DEPOSITIONS OF FOREIGN WITNESSES:  The district court did not err by denying the defendant’s motions to depose foreign witnesses where the testimony would have been cumulative, the defendant did not proffer their testimony, and the testimony would not contradict the testimony of the victims who claimed the defendant forced them, as children, to engage in sexual acts with him.

ABANDONMENT OF ERROR:  Where a defendant/appellant fails to make any argument on appeal challenging the district court’s ruling, the defendant abandons the issue.

USA v. Carter, 13-13518 (11th Cir. Jan. 27, 2015)


CA11: Appellate Jurisdiction After DC Grants New Trial on Single Count

Where the district court grants a new trial as to one count of criminal conduct (Count 3) but denies a new trial on the remaining counts (Counts 1 and 4), a federal appeals court is without jurisdiction to reach the merits of a district court’s denial of motion for new trial as the other counts where there are still pending charges against the defendant in the same case.

USA v. Myrie, 13-13106 (11th Cir. Jan. 21, 2015)

CA11: En Banc Review of Cell Phone Tower Data w/o Warrant

The issue of whether the government may obtain cellular telephone tower data without a warrant is scheduled for EN BANC oral argument at the Eleventh Circuit on February 24th in Atlanta.  Among the many amicus briefs filed in the case, most interestingly is that of AT&T, the nation’s largest wireless provider, who argues in its brief:

Nothing in Smith or Miller [the United States Supreme Court’s third party doctrine jurisprudence] requires that individuals must choose between participating in the new digital world through use of their mobile devices and retaining the Fourth Amendment’s protections.”  (AT&T’s Amicus Br. at pp. 20-21).

United States v. Quartavious Davis, 12-12928

En Banc Order: