The Eleventh Circuit Board

In United States v. Philossaint, the Eleventh Circuit offered a primer on forfeiture and, better still, vacated the district court’s forfeiture order. Philossaint was convicted of conspiracy to commit wire fraud and money laundering. The district court ordered him to forfeit property received not by him, but by a co-defendant. Philossaint received kickbacks totaling $549,226, but the conspiracy itself received $672,210. The government argued that Philossaint was liable for the entire amount under a “conspiracy leaders and ‘masterminds’” theory. The court agreed and ordered the forfeiture of $672,210. On appeal, the government admitted the calculation was incorrect but maintained the “conspiracy leaders and ‘masterminds'” argument. The Eleventh Circuit rejected this, citing United States v. Honeycutt, 581 U.S. 443 (2017), which held that 21 U.S.C. § 853(a)(1) does not allow joint and several forfeiture liability. Philossaint’s case involved different forfeiture statutes, 18 U.S.C. §§ 982(a)(1) and 982(a)(2), and language in the latter mirrors the statute in Honeycutt, meaning the bar on joint and several liability applies to co-conspirators who never possessed the tainted funds. The record showed Philossaint only received $549,226, and the trial court made no contrary findings. The panel also clarified that a role enhancement does not make a defendant a “leader” or “mastermind” for forfeiture purposes under Honeycutt. [By Millie Dunn].

Roshawn Davis went to trial for a drug-distribution conspiracy represented by appointed counsel. After a guilty verdict, he filed a motion to proceed pro se at sentencing. The attorney filed a motion to withdraw stating that his client wanted to be pro se. The court held an ex parte hearing and said it would conduct a Faretta inquiry. But first it made inquiries of Davis’s lawyer, who described his sentencing prep and communication issues with Davis. The court concluded that counsel had been effective, denied the attorney’s motion to withdraw, and never conducted a Faretta hearing. At sentencing, Davis was represented by trial counsel. In United States v. Davis, the Eleventh Circuit vacated the sentence because the district court failed to conduct a Faretta hearing. There are a few key take-aways. First, the panel agreed that Faretta can be invoked after trial, but before sentencing. Second, the court didn’t consider the issue forfeited even though Davis did not raise it in his initial brief, noting that treating an issue as forfeited when it’s not raised in the first brief is not mandated constitutionally or by statute. Third, the court agreed that Davis had repeatedly and unequivocally raised the issue, and he was not required to object at sentencing to preserve the issue. Finally, Davis’s sentence was commuted by President Biden in January 2025 – but the appeal was not moot because resentencing could affect the remaining sentence. [By Rebecca Shepard].

The outcome in United States v. Morgan turned on the Fifth Amendment, Miranda, and involuntary statements, and it features a blistering dissent by Judge Rosenbaum. When Morgan was arrested, two cell phones were recovered. He was asked twice whether the phones were his. First, before Miranda warnings, he claimed ownership of both phones. Second, after Miranda warnings and after Morgan invoked his rights, an officer asked a second time, and Morgan claimed only one of the phones. The second phone was searched, without a warrant, and it contained inculpatory evidence (and led to more). Morgan moved to suppress the evidence, but it was admitted at trial because the court found he had abandoned the second phone. The issue on appeal is whether Morgan’s statement—although inadmissible at trial—could be used to find abandonment. The majority of a split panel held that the district court did not err in relying on the statement, even though taken in violation Miranda, to find abandonment. This reasoning is that Miranda is a prophylactic rule, broader than the self-incrimination clause—so while the government cannot use a Miranda-violative statement at trial, it can use it for other purposes (i.e., determining abandonment) if it is not coerced. Although the officer misled Morgan by saying she wasn’t asking questions about the case, his statement claiming only one phone was not involuntary, and the fruits of the warrantless search were admissible. Judge Rosenbaum dissented: “Morgan had me at the Fifth Amendment.” The officer’s questioning after Morgan invoked his right to remain silent was coercive. Because his statements were involuntary, they cannot be used to find that the phone was abandoned—and there wasn’t other evidence that would support that finding. She would vacate the conviction and remand with the phone evidence suppressed. [By Rebecca Shepard].