Fifth Amendment

The Eleventh Circuit affirmed a defendant’s conviction for enticing a minor to produce pornography, holding that the district court did not constructively amend the indictment when it instructed the jury that the government did not have to prove the defendant had knowledge of the victim’s age, as the language in the indictment alleging that the defendant acted “knowingly and intentionally” only applied to the “acts barred in the statute.” Moreover, the Court emphasized that a district court is free to ignore language in the indictment that alleges a “higher mens rea” than the statute requires as “mere surplusage. The Court vacated the defendant’s conviction for possessing child pornography, however, since he had also been convicted of receiving child pornography based on the same conduct, thus violating the Double Jeopardy Clause.

The Eleventh Circuit affirmed a pair of Hobbs Act robbery convictions, holding that 1) erroneous jury instructions regarding two predicate offenses under 924(c) were harmless where the offenses were inextricably entwined and one was properly instructed as a predicate offense; 2) defendant’s could not show entrapment or outrageous government conduct when the government set up a fake safe house and had an informant suggest to the defendant that they should rob the safe house; and 3) the defendants were not entitled to discovery for selective prosecution based on a showing that a racial group was disproportionately prosecuted unless they could show evidence of prosecution of similarly situated members of another racial group.

A case involving egregious prosecutor misconduct finally ended with a written opinion by the trial judge referring the prosecutors for investigation by the DOJ’s Office of Professional Responsibility. The Government had failed to disclose an exculpatory document until the middle of trial, where it produced a document dump and did not inform the defense of the new evidence, and emails between prosecutors showed they planned to “bury it” and lied to the court.

The Ninth Circuit affirmed a district court’s order suppressing a defendant’s statements under Miranda. The officers had interrogated the defendant without advising him of his Miranda rights after they approached him in marked cars and separated him from his seven-year-old son. However, the Court remanded for the district court to determine if the defendant’s subsequent consent to search his vehicle was voluntary.

Recent legislation called the Due Process Protections Act amended Rule 5 of the Federal Rules of Criminal Procedure. The Rule now requires district courts to issue orders at the initial appearance in every criminal case that reminds prosecutors of their obligations under Brady, lists potential consequences for violations, and sets deadlines for compliance.

The Fifth Circuit vacated special conditions of a defendant’s supervised release and remanded for resentencing holding that an absolute ban on computer use or internet access for ten years after serving a 12.5-year sentence was plain error. The Court held that the condition was overbroad because it was not narrowly tailored by scope or duration and would preclude defendant from participating meaningfully in modern society for long periods of time due to the ubiquitous nature and importance of the Internet.

The First Circuit reversed the denial of a defendant’s motion to dismiss federal drug conspiracy offenses under the Double Jeopardy Clause of the U.S. Constitution, holding that the Puerto Rico government and U.S. federal government are not separate sovereigns for Double Jeopardy purposes, so the defendant’s federal charges for drug conspiracy were barred by his prior conviction under Puerto Rican law for the same offense conduct.

In a matter of first impression, the Ninth Circuit vacated a defendant’s pre-trial repatriation order under a de novo standard of review after finding the order violated the defendant’s right against self-incrimination under the Fifth Amendment. The Court further held that the district court’s application of the forgone conclusion exception was too broad while the government’s limited use immunity was too narrow to protect the defendant’s Fifth Amendment rights.

The Ninth Circuit reversed the district court’s denial of the defendant’s motion to suppress statements. The Court held that the defendant’s second interview with the FBI was not sufficiently attenuated from his first interview eight months prior, where he was unlawfully detained and interrogated, based on the FBI telling him they were there to ask “follow up” questions and never read him his Miranda rights. The Court further noted that the fact that eight months passed and the agents did not act deceitful was not dispositive.

The Eleventh Circuit upheld a conviction for attempted online enticement of a minor and attempted transfer of obscene matter to a minor, holding that officers did not err in failing to advise the defendant of his Miranda rights where he was informed that he was not under arrest and could ask the officers to leave and because he his statements were voluntary. The Court also held that testimony describing an allegedly obscene video and corresponding screenshots are a sufficient substitute to introducing the videos in their entirety.