The 11th Circuit Board

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Joe Montana once said: “Winners, I am convinced, imagine their dreams first.  They want it with all their heart and expect it to come true. There is, I believe, no other way to live.”  But as we learn in United States v. Foster, imagination is a dangerous game for real estate investors.  Foster’s business sold land in Rum Cay, Bahamas.  Or it claimed to.  In search of investors, Foster posted on his website favorable news articles about his company.  But these were bogus.  And he trumpeted a claim that Joe Montana and other celebrities had invested in the Rum Cay property.  They had not.  A jury convicted Foster of wire fraud and conspiracy.  The appeals court affirmed his convictions and sentence.  One topic is worthy of discussion here: the loss amount.  Foster:  The court should offset from my $8.3 million loss amount the value of the authentic lots I managed to sell to some investors.  District court: “No.  A fraudster is not entitled to an offset for value provided solely to conceal or perpetuate the fraud.”  Eleventh Circuit:  Amen, especially when those land deeds will be tied up in litigation and, thus, their value is dubious.  Although Montana once earned the nickname, “The Comeback Kid,” Foster did not.

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Does a Georgia conviction for aggravated assault with a deadly weapon count as a crime of violence under U.S.S.G. § 2L1.2?  Yes, under that provision’s former enumerated crimes clause.  In United States v. Morales-Alonso, our own Colin Garrett represented a fellow who once struck another person with a brick.  The government deported Morales and later, when he returned to the United States, indicted Morales for illegal reentry.  Using the former version of § 2L1.2, the district court imposed a 16-level enhancement for that aggravated assault conviction.  The court spied the crime in the crime-of-violence definition’s enumerated crimes clause.  On appeal, the panel engaged in a now-familiar exercise:  Is the Georgia statute divisible?  Yes, each subsection, including the “with a deadly weapon” form, is a distinct crime.  Onward.  What is the generic definition of aggravated assault?  Does Georgia’s “with a deadly weapon” variant fit within that generic definition?  If so, Morales loses.  The panel concluded that the Georgia crime includes the use not only of weapons that are inherently dangerous (say, a firearm), but also innocuous objects used in a dangerous manner (such as Morales’s brick).   The opinion leaves unanswered a parallel, and much more common query: Does a Georgia aggravated assault conviction fit within the elements clauses of the guidelines’ several crime-of-violence definitions or of the Armed Career Criminal Act? Stay tuned.

In the middle of a dirge affirming Stephanie Watkins’s illegal reentry conviction, the panel offered one bright melody to remember her by: the trial court erred in admitting a fingerprint analyst’s expert testimony.  The analyst testified that Watkins’s fingerprints matched those of the woman deported from the United States to Jamaica thirteen years earlier.  But the government bungled the witness’s presentation, and the trial court should have barred the testimony.  Federal Rule of Evidence 702 requires that the government prove both that the scientific methods in fingerprint analysis are reliable and that the expert has applied those principles reliably in this case.  Not so here.  Yet the error was harmless because the government proved Watkins’s identity in other ways.  As the panel brought the gavel down on Watkins’ conviction and imminent removal, it offered this rare, and welcome, hint of regret:  “Although sympathetic to Watkins’s predicament and her separation from her entire family, we must affirm.”  Cold comfort I am sure.

When a district court imposes a sentence above the guideline range, it must tread carefully.  The farther afield a judge wanders from the safety of the guideline range, the louder and longer it must proclaim its reasons.  Wrote the panel in United States v. Jazzman Brown: “Upward variances are meant to apply only after ‘serious consideration’ by the sentencing court, and only then when accompanied by a ‘sufficiently compelling’ justification.  The fact that the district court provided no justification for imposing an upward variance to Mr. Brown’s sentence is itself error.”  Fare well on remand.

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One footnote:  The fine folks at Human Rights Watch have published a gripping tale of the sinister practices that federal agencies use to make criminal cases.  With a tool called “parallel construction,” the federal government “deliberately conceal[s] methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal.”  The HRW report, with a DC Comics title: “Dark Side: Secret Origins of Evidence in US Criminal Cases,” even quotes our brother Leigh Finlayson.  I can only imagine what Devin Nunes would make of all this.  And a shout out to FDP’s Haley Haltiwanger for sending me the report.

Contributors: Stephen P. Johnson, Rick Holcomb, and Haley Haltiwanger.

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