The Eleventh Circuit Board

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A DEA-led federal drug task force installed a pole camera outside a home in East Point, Georgia. A local law enforcement officer, deputized to the DEA task force, witnessed Alphonso Lewis come and go from the suspected drug house. The agent directed local officers to conduct a traffic stop on Lewis, and they seized five kilograms of cocaine. The local district attorney’s office indicted Lewis for the drug crimes. The state court granted Lewis’s motion to suppress the search of the car, and the DA’s office dismissed its case. Only then, three years after the traffic stop, did the federal government indict Lewis for the same drug crimes. The government relitigated the suppression issue and, this time, it won. On appeal, Lewis argued that the collateral estoppel doctrine barred the federal government from taking a second bite at the suppression apple in federal court. In US v. Lewis, the Eleventh Circuit held that the federal and state governments were not in privity (that is, they are not the “same party”). Although a single DEA task force agent shepherded the case through both courts, the U.S. Attorney’s Office did not become involved with the case until after the state case was dismissed. The federal government, then, was not estopped from relitigating (and winning) the Fourth Amendment issue.

Timothy Pate filed frivolous tax returns with the IRS claiming refunds totaling $3.8 million. When Uncle Sam’s taxmen refused to pay up, Pate filed retaliatory false liens against the former (emphasis on former) Commissioner of the IRS and the former (same) Secretary of the Treasury. The federal government tried (and convicted) Pate for filing a false lien against “any officer or employee of the United States” in violation of 18 U.S.C. § 1521. In US v. Pate, the panel’s majority (Judges Lagoa and Branch) affirmed the convictions by engaging in a tortured reading of “any officer or employee” and by concluding that the statute covers former as well as current officers. Judge Newsom demolished the majority in a better-reasoned dissent, which must be little consolation to Pate, who was sentenced to a jaw-dropping 300 months in federal prison. (Meanwhile, Pate’s petition for rehearing en banc is pending.)

Like a jarring record scratch, John Utsick’s glamorous life in the concert industry came to an abrupt halt when the Securities and Exchange Commission filed a civil suit against him and others in 2006, accusing them of vast investment fraud. The government followed up with a criminal indictment, but rather than face the music Utsick decamped to Brazil before he could be arrested. An extradition request was filed, the Brazilian Supreme Court complied, and Utsick was returned to the United States. In the district court, Utsick challenged the use of evidence of misconduct from before November 2005, asserting that the Supreme Court of Brazil conditioned his extradition on him not being held liable or sentenced for that conduct. The district court disagreed and, after a last-minute guilty plea, sentenced Utsick to 220 months in prison and restitution. In US v. Utsick, the Eleventh Circuit affirmed on the extradition issue, finding that neither the “rule of specialty” nor Brazil’s extradition treaty limited the manner in which a receiving country may punish a defendant, only what charges the defendant may be tried on.

In US v. Ifediba, a brother and sister were convicted of health care fraud crimes. At the close of the government’s case, a “concerned citizen” emailed the clerk’s office that a juror had been “discussing the case in some detail with people she works with,” and, contrary to the court’s instructions, had “Googled the case.” The court identified the rogue juror as one of the alternates. The parties and the court agreed that the juror should be dismissed, and before dismissing her, she should be questioned about whether she’d shared her research with other jurors. The court asked the juror if she was aware of any jurors “doing any investigation beyond the evidence in the case.” The juror (falsely) said no, and was dismissed. Ifediba’s counsel moved for a mistrial because it was “difficult to believe” she had not shared her research with other jurors. The motion was denied. The court also refused to question the other jurors one-on-one because it did not want to conduct a “witch hunt,” but the court did instruct the group that it must base its verdict solely on “the evidence presented in the courtroom and the instructions given by the court.” On appeal, the Eleventh Circuit affirmed the district court’s method of investigation. This incident falls at the less-serious end of the juror-misconduct spectrum, and the court’s “additional step” of instructing the remaining jurors collectively cured any possible harm.

A federal jury convicted Douglas Moss, a (former) physician (and lover of Las Vegas gambling), of defrauding Medicare and Medicaid by billing for nursing home visits he never made. On appeal, Moss challenged his conviction, sentence, and forfeiture on many grounds—all to no avail. In US v. Moss, the panel affirmed the district court’s order quashing Moss’s subpoena for documents from a co-conspirator’s attorney. Moss wanted to impeach his co-conspirator’s testimony regarding certain cash payments, but the information was protected by the attorney-client privilege. Moss also complained that the district court limited his attorney’s closing argument, but the panel agreed that the closing argument was misleading―the lawyer treated profit as an element of the crime. Now on to the money. Moss objected to the district court’s calculation of the loss amount under U.S.S.G. § 2B1.1. The panel held that although Moss knew when he billed the government programs that he would not receive the full amount billed, he tried, and this is intended loss. Lastly, the panel emphasized that criminal forfeiture focuses on the defendant and is meant to be punitive. The gross proceeds from Moss’s improper billing are all traceable to … the improper billing. Take away the fraudulent billing and what’s left? Nothing said the panel. The forfeiture order stands.

Contributors: Byron Conway, Colin Garrett, Joe Austin, Keenen Twymon, and Takiya Wheeler.

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