Eleventh Circuit

The Eleventh Circuit rejected a number of challenges in affirming the defendants’ sentences for drug trafficking and unlawful possession of firearms, holding that the district court did not plainly err in shackling the defendants during trial without stating its reasons in the record and that the district court did not abuse its discretion in interviewing jurors in camera regarding their safety concerns and summarizing those interviews for the parties. The Court also concluded that the indictments failure to allege the defendants’ mens rea as required under Rehaif v. United States did not deprive the court of jurisdiction and the plain error of convicting the defendants of unlawful possession of firearm did not warrant reversal where the government would have been able to prove their knowledge.

In an appeal of the defendant’s conviction for retaining government property (in the form of federal grants), the Eleventh Circuit rejected the defendant’s statute of limitations argument, holding that retaining government property is a “continuing offense.” Given the definition of “retention,” the statute of limitations does not begin to run until the defendant relinquishes possession of the government property.

The Eleventh Circuit sua sponte vacated its prior panel opinion where it had previously held that the defendant’s text messages requesting sexually explicit pictures from an undercover officer posing as a minor constituted “making a notice” seeking child pornography under 18 U.S.C. § 2251(d)(1). The Court’s new opinion held that “making a notice” is ambiguous and, applying the rule of lenity, sending private, person-to-person text messages asking a minor for sexually explicit pictures does not constitute “making a notice” to receive child pornography.

Where the defendants stole and later destroyed a rare gold bar recovered from a sunken treasure ship, the Court held that in cases involving a unique item or an item that has no market for it, the proper figure to calculate restitution is the “replacement cost” of the item rather than its mere fair market value, which in this case would have been the bar’s weight in gold. However, the district court erred in adopting the victim-museum’s arbitrarily defined value of the gold bar for restitution purposes.

Joining several other circuits, the Eleventh Circuit held that a conviction for Hobbs Act robbery does not qualify as a “crime of violence” for the sentencing enhancement under either the elements clause of U.S.S.G. § 4B1.2(a) or as an enumerated robbery or extortion offense, as a defendant can be convicted of Hobbs Act robbery based merely on a threat to property.

In a case involving mail fraud and falsifying immigration forms, the Court held that the district court correctly applied the Guidelines for fraud under 2B1.1 rather than for falsifying immigration forms under 2L2.1, explaining that “the heart” of the defendant’s scheme was enriching themselves by cheating undocumented immigrants.

The Court held that selling body armor is not sufficient to warrant an enhancement for “using” body armor under U.S.S.G. § 3B1.5, which enhances a defendant’s offense level if the defendant used body armor though “active employment in a manner to protect the person from gunfire” or “as a means of bartering.” The Court held that the definition of bartering applies to trading goods without the use of money.

Among other rulings on other issues, the Court reversed the defendant’s conviction for bankruptcy fraud, holding that the income from his second religious temple, opened after the first temple filed a petition for bankruptcy and providing the same services as the first temple, did not constitute post-petition property of the first temple’s estate since the temples otherwise operated as two separate entities and the government did not try to pierce the corporate veil.

The Court affirmed the defendant’s convictions for enticing a minor under § 2422(b) but reversed his conviction under § 373 for solicitation to commit a crime of violence, holding that kidnapping under § 1201(a) is not a “crime of violence” under the categorical approach applicable to § 373. The Court also held that the defendant’s right to a complete defense was not violated by the trial court’s proper rulings on the inadmissibility of the defense experts’ testimony.

The Court affirmed the defendant’s convictions for wire fraud, holding that the district court did not abuse its discretion in rejecting proposed jury instructions that distinguished a “scheme to defraud” from a “scheme to deceive,” since the proposed instructions did not also include language defining an intent to harm based on a misrepresentation of the nature of the bargain.