The Eleventh Circuit Board

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Your correspondent has been on a blog sabbatical these past few months. He apologizes. Meanwhile, the Eleventh Circuit has been burning the midnight oil, and there is plenty of news to report. So, we christen this week a Blue Notes Boot Camp. Each day, we’ll drop a post with news from the Tuttle Building, and, by the end of the week, we’ll all be as well-informed as a member of the Supreme Court Historical Society. Let’s begin with a handful of opinions from the autumn.

A deal is a deal. In US. Malone, the appeals court finds, on plain-error review, that the government breached the plea agreement by arguing that Malone was not entitled to acceptance of responsibility, solely based on additional criminal conduct that occurred after the guilty plea. The breach affected Malone’s substantial rights because the district court did indeed deny acceptance, and explicitly relied on the government’s argument. The panel also found the government breached its promise to recommend a within-guideline sentence when, although it asked for 66 months (a term within the guidelines), it also stated it did not “think [66 months was] enough” and that “double or triple” the recommended sentence was more appropriate. The panel found no prejudice for that breach though, because, after all that, the district court imposed a sentence within the guideline range.

The Grushko brothers devised a fraud scheme. They used stolen credit card information to make online purchases of household goods at Target, and returned those goods for Target gift cards that would later be used to buy high-value electronics. A license plate led law enforcement to one brother and the home he shared with the other. The lead agent arrived with arrest warrants, and detained two men who were smoking outside the home, but who refused to identify themselves. The agent was not sure these were the Grushko brothers. (Ed. Note: They were.) Agents heard “voices and noise” inside the home, entered, and saw access devices and equipment used in the fraud scheme. In US v. Grushko, the panel affirmed the convictions. Here are a few practice tips: (A) Don’t disclose your identity to police, but also don’t be surprised to learn that agents may detain you even if they are not “absolutely certain” you are the person on the arrest warrant; (B) Don’t teach scheme participants how to install skimmer devices on ATM machines, don’t pay participants a portion of the proceeds, don’t keep spreadsheets tracking every fraudulent pickup and return at Target, don’t keep documents titled “how not to get caught,” and don’t possess device-making equipment and identity-theft materials, not unless you want to receive the “organizer or leader” guideline enhancement; and (C) Don’t, if you’re a trial court conducting voir dire, make statements to the jury about television shows (e.g., CSI, Law & Order) because the topic is “unnecessary, unwise and should have been avoided.”

Can the government toll the statute of limitations by filing, and then immediately moving to dismiss, an information that a defendant did not consent to? We don’t know yet. The Eleventh Circuit, prioritizing form over function, dodged this question in US v. B.G.G. Prosecutors in the Southern District of Florida tested the tactic in August of 2020, while the district had suspended grand jury sessions due to COVID-19. The government had been investigating B.G.G.’s alleged kickback scheme and feared that the statute of limitations would run during the suspension. To avoid this, the government filed an information, one that B.G.G. did not consent to, and then moved to dismiss without prejudice under Federal Rule of Criminal Procedure 48(a). The government hoped that this would extend the statute of limitations by six months under 18 U.S.C. § 3288. The district court, faced with the legal and ethical dilemma of whether the government’s end-run around the statute of limitations was permissible, dismissed the information with prejudice, finding that the government’s actions amounted to prosecutorial harassment. The Eleventh Circuit reversed. It explicitly did not consider whether the government’s tactic would work the way it intended. Instead, it focused on the district court’s failure to rigidly apply the Rule 48(a) framework. Plus, the court erred in dismissing the information with prejudice because, under Rule 48, only the government can make that call. Judge Wilson dissented.

In Riolo v. US, the panel affirmed the denial of a § 2255 motion raising an ineffective assistance of counsel claim. The court imposed a 293-month sentence. Before the guilty plea, Riolo’s attorney had told him that she expected his guideline range to be 97-121 months, and that the prosecutor had the same guideline calculations. The plea agreement, however, did not include any agreements regarding the guidelines. The PSR applied two 4-level enhancements not included in the attorney’s calculations, resulting in a dramatically higher range: 235-293 months. Mr. Riolo contemplated withdrawing his plea but, after consulting with his lawyer and getting a second opinion, proceeded to sentencing, where the court overruled his PSR objections and imposed the nearly 25-year sentence. The Eleventh Circuit held that it was not deficient performance when counsel miscalculated the guidelines, even by more than 100 months. Riolo’s lawyer had warned him about one of the enhancements, and although she was taken by surprise by the second enhancement, so was the government. The fact that both parties miscalculated the guidelines is evidence that defense counsel’s performance was not deficient, plus counsel objected to the enhancements anyway, even though she lost. As Judge Jordan pointed out in his concurrence, many circuits have held that a defense attorney’s mistaken guideline calculations can constitute IAC in a given case, but the panel punted on that question here because the government made the same poor guideline predictions.

Contributors: Colin Garrett, Judy Fleming, Michelle McIntyre, and Rebecca Shepard.


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