The Eleventh Circuit Board

Quiz Questions:

1. Were the hitmen who gunned down Sonny Corleone in The Godfather exercising their lawful Second Amendment rights by carrying their Tommy guns?

2. At trial, the government proved the getaway car used in a robbery belonged to Hamilton and that after the robbery Hamilton ditched the car and told his girlfriend to report the car stolen. In closing argument, the prosecutor said: “The defendant has not offered a reasonable explanation for how the car got out of his possession.” Was the prosecutor’s comment permissible?

3. If a person is acquitted of a conspiracy to defraud Medicare count, and convicted merely of a false statement count, may the court order him to pay restitution for the losses arising from the conspiracy?

Eleventh Circuit Opinions:

The Eleventh Circuit may have broken a record for most citations in an eight-page opinion with US v. Alsenat. In that opinion, the panel took up the question of whether the Second Amendment protects the possession of machineguns. Ultimately, it said no. The panel laid out a brief history of machinegun possession in the United States and the many laws that have banned or regulated the firearms since their introduction to our country following World War I. The panel determined that even with Bruen (2022) and Rahimi (2024) on the books, machineguns constitute “dangerous and unusual” weapons that are unprotected by the Second Amendment. The opinion has particular relevance in an era when it has never been easier to transform a handgun, which the Court identifies as the most popular weapon for lawful self-defense, into a machinegun by attaching a so-called “switch.” While it may be easy to identify a mobster’s Tommy gun in The Godfather, the distinction isn’t as clear when anyone can purchase a piece of plastic online that transforms a lawful firearm into an unlawful one. [By Lydia Horan].

Two masked men entered a convenience store in Miami and brandished guns. The store clerk grabbed a gun and exchanged shots with the would-be robbers. Both suspects fled the store and drove away in a car. A fellow named Hamilton later told his girlfriend to report that his car was stolen, then said he committed a robbery and was going to turn himself in, but instead he fled to Georgia. Hamilton was arrested months later, and he was convicted at trial of conspiracy and attempt to commit Hobbs Act robbery. He appealed. In US v. Hamilton, the Eleventh Circuit affirmed the conviction and sentence. Here are a few takeaways from the opinion. First, the flight-is-evidence-of-guilt jury instruction was not an abuse of discretion because a reasonable jury could have found that Hamilton fled to avoid apprehension for the failed robbery, and the jury was instructed that it had to decide both whether Hamilton had fled and what weight to give that conduct. Second, the prosecution’s assertion during the closing argument that the defense had failed to rebut certain evidence did not violate Hamilton’s Fifth Amendment right to remain silent or shift the burden of persuasion to the defendant. Third, although a juror expressed regret over the verdict, such buyer’s remorse is not sufficient to overturn a verdict. Lastly, under Federal Rule of Criminal Procedure 32(h), a sentencing court is only required to give notice that it is contemplating a departure from the sentencing guidelines when the ground for the departure is not identified either in the presentence report or in a party’s pretrial submission. (Note that in the last amendment cycle, the Commission largely abolished departures anyway.) Plus, a court is never required to give advance notice before it applies a variance above or below the range. [By Kendal Silas].

In US v. Alexander, the rich get richer, but they still gotta do the time. A jury acquitted Alexander on a conspiracy to pay health care kickbacks but convicted him of making false statements. The court imposed a prison sentence and $315,704.52 in restitution. On appeal, Alexander contested the sufficiency of the evidence on the false-statement count. A co-defendant schemed to evade Medicare scrutiny of his reimbursements for equipment sales; he recruited Alexander to create a new company to reduce the co-defendant’s sales figures; Alexander registered the company under his mom’s name. Was the mom’s (fake) ownership “material” to Medicare’s decision to make the payments, although the name was merely used to update a change in business hours? Yes, held the panel, it was. A false statement is material if it “has a natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body.” The government did not have to show that Medicare actually relied on the false statement. Alexander also challenged the jury instructions on appeal. But, alas, at trial he proposed the very materiality instruction he challenged on appeal, a “[t]extbook case of invited error.” And he complained on appeal of the court’s failure to give the deliberate ignorance instruction, but “[t]he first time he makes the argument properly is in his reply brief, and so he waives the argument altogether.” But wait, Alexander convinced the panel to vacate the entire restitution order because there was no loss caused by his count of conviction, the false statement. [By Leigh Finlayson].

Quiz Answers:

1. No, not even close.

2. The prosecutor’s comment was perfectly fine and did not touch upon Hamilton’s decision not to testify. Indeed, the prosecutor did not mention Hamilton at all, let alone his decision not to testify. The comment was drawn only from the evidence in the record.

3. Nope, no restitution for the false statement count.