The Eleventh Circuit Board

Good news—the Eleventh Circuit is taking seriously the requirement in Erlinger v. United States, 602 U.S. 821 (2024), that the jury must find beyond a reasonable doubt that three ACCA predicate convictions occurred on “occasions different.” The catch? The Eleventh Circuit will enforce the requirement only if the question is close – think similar crimes that occurred mere days (or hours) apart and at nearby locations. Otherwise, the court will conclude that an Erlinger violation is harmless error. Fortunately, in United States v. Rivers, things worked out for Rivers. He had previously been convicted of crimes involving four drug transactions that he committed over the course of eight days. At a pre-Erlinger trial, the jury convicted Rivers of possessing a firearm as a convicted felon but did not find (because it was not asked to find) that his prior convictions occurred on different occasions. At sentencing, the district court (again, this was before Erlinger) found that the drug transactions occurred on separate occasions and imposed an ACCA enhancement on Rivers’ sentence. On appeal, the Eleventh Circuit vacated Rivers’ ACCA sentence because it violated Erlinger, that is, there was neither a guilty plea nor a jury finding that the predicate drug convictions had been committed on different occasions. The panel determined that an Erlinger error can never be structural, so it applied a harmless-error analysis. And here the error was not (!) harmless because Rivers’ previous drug crimes occurred close in time and in location to each other. Hooray for Rivers! [By Andrew Qin (FDP Intern) and Ashley Martin].

Latvian citizen Arturs Spila was convicted of money laundering after a jury trial. Victims believed they had been hired by foreign corporations to work from home. As part of their duties, they were told to cash what turned out to be fraudulent checks, and to send the cash to Spila’s address. Spila visited the United States for just 83 days, but in that time managed to receive, deposit, and wire out over $284,000 in cash, all the while never exceeding the $10,000 bank-reporting limit. At trial (and on appeal), he objected that the government had to prove not just that he knew the money was proceeds from unlawful activity but proceeds specifically from felonious (as opposed to misdemeanor) activity. Following well-established law, in United States v. Spila, the Eleventh Circuit rejected this argument, and found the evidence was sufficient as to all the elements of money laundering. [By Colin Garrett].

A grand jury indicted Jordan Pulido for several crimes, including enticement of a minor, arising from an online relationship with a Croatian girl. Pulido traveled to Croatia to have sex with her—and then brought her to the United States, where he continued to have sex with her. Pulido filed a motion to dismiss the enticement count because it was “duplicitous.” The district court denied the motion and Pulido appealed. A count in an indictment is duplicitous if it charges two or more separate and distinct offenses. The risk of a duplicitous count is that (1) a jury may convict a defendant without unanimously agreeing on the same offense; (2) a defendant may be prejudiced in a subsequent double jeopardy defense; and (3) a court may have difficulty determining the admissibility of evidence. To determine whether a count is duplicitous, we “look to the text of the underlying statute” and consider “what conduct constitutes a single offense.” With the enticement statute, 18 U.S.C. § 2422(b), Pulido committed the crime the moment he was able, for the very first time, to move the girl’s mental state from one of hesitation to one of agreement. Later episodes in which he successfully moved her mind again constituted distinct acts of enticement, and thus independent violations of the statute. By failing to charge multiple enticement counts in a case that involved a 10-month relationship, numerous online conversations about sex, and multiple sexual encounters in both Croatia and Florida, the government produced an indictment that created the risk that the jury “may [have] convict[ed Pulido] without unanimously agreeing on the same offense.” And that, held the Eleventh Circuit in United States v. Pulido, makes the lone § 2422(b) count duplicitous. Judge Rosenbaum wrote a concurring opinion, pointing out that the Eleventh Circuit views duplicity differently than other circuits. Outside our circuit, the government routinely charges § 2422(b) violations by the victim, not by the enticement—and courts routinely uphold those convictions without discussion of potential duplicity issues. [By Wes Bryant].