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:

SCOTUS: 18 USC 2113(e) Bank Robbery Enhanced Penalty

Title 18, Section 2113(e), United States Code, establishes an enhanced penalty for anyone who “forces any person to accompany him without the consent of such person” in the course of committing or fleeing a bank robbery.  The Supreme Court UNANIMOUSLY held that a bank robber “forces [a] person to accompany him,” for purposes of § 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building.

Whitfield v. USA, 574 U.S. _____ (Jan. 13, 2015)

(Justice Scalia wrote the opinion)

CA11: 6th Amendment Does Not Apply to Revocation Hearings

The district court revoked the defendant’s supervised release, in part, for possession/use of a controlled substance after the results of the laboratory test confirming one of the substances in question was illegal drugs were admitted through the testimony of a police officer instead of the lab technician who performed the test.  In accord with eight other circuits, the Eleventh Circuit held that, “[t]he Sixth Amendment applies only to ‘criminal prosecutions,’ which does not include parole revocation hearings.”

USA v. Reese, 14-10257 (11th Cir. January 5, 2015)