Recent Circuit Cases

The Seventh Circuit held that the deadline for filing a notice of appeal in a criminal case is measured from the date a district court denies a motion for reconsideration, not the date of a district court’s order on the underlying motion.

The D.C. Circuit reversed the defendant’s convictions for sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of an image of a minor engaged in sexual conduct. The defendant had surreptitiously filmed his minor stepdaughters while they were changing in their rooms or in their bathrooms, but this evidence was insufficient to convict him of the charges because there was no evidence that the images depicted the “lascivious exhibition” of the minors because the minors were not exhibiting their nudity in a “lustful manner that connotes the commission of sexual intercourse” or other overtly sexual conduct.

The Third Circuit held that the district court had plainly erred in imposing a condition of supervised release requiring the defendant to register as a sex offender under SORNA where the defendant did not have a conviction for a “sex offense” under SORNA’s definitions. The defendant was convicted of depriving the civil rights of individuals under color of law by using his position as a police officer to coerce women to engage in sexual conduct with him. The Court also held that since he was not notified of SORNA’s requirements prior to his sentencing, his appellate waiver was not entered into knowingly and voluntarily.

Joining the Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, the Third Circuit held that a conviction for Hobbs Act robbery is not a prior conviction for a “crime of violence” under the “Career Offender” provisions of the Guidelines.

On remand from the Eleventh Circuit’s en banc holding, the Court held that the district court erred in suppressing evidence where the government proved by a preponderance of the evidence that the incriminating evidence would have been discussed through lawful means despite the violation of the defendant’s rights. The agents had been contemplating a knock and talk, which would have revealed to them the incriminating drug evidence, and it was not controlling that they had discussed this tactic after the constitutional violation.

The Eighth Circuit affirmed a defendant’s conviction after he challenged an officer’s warrantless search of his rental car during a traffic stop. The Court held that the officer did not unlawfully prolong the traffic stop where reasonable suspicion existed to extend the stop based on the incongruity between the defendant’s stated travel plans and his rental car agreement, inconsistencies in the defendant’s travel history, the disparity between the cost of flying versus renting a car, and the defendant’s emphasis on his military background in response to questioning. Moreover, despite the officer initially commanding the defendant to open his trunk and let him search his luggage, the Court held the defendant’s consent was voluntary where the officer subsequently confirmed he had permission and the circumstances showed the officer was not acting authoritatively or in a confrontational manner.

The Tenth Circuit affirmed a defendant’s conviction despite finding that the district court violated Rule 605 of the Federal Rules of Evidence, which prohibits judges from testifying as witnesses. After the defendant had testified that there had been a second video, not shown to the jury, which would have shown the government’s video was manufactured, the district judge instructed the jury that there was only one video in the case. While this clearly violated Rule 605, the Court concluded that the violation was harmless in light of the overwhelming evidence of guilt.

The Seventh Circuit affirmed a defendant’s sentence for initiating cyber attacks against his former employer. The Court held that suppression was not warranted where agents monitored the defendant’s internet traffic through a pen register for IP addresses, which was not meaningfully distinguishable from a pen register for phone numbers.

The Sixth Circuit affirmed a defendant’s conviction and sentence. The Court held that the district court did not err in using the future-tense in instructing the jury on the elements of RICO, since the conspiracy charge criminalized the agreement to form a racketeering enterprise, even if the enterprise has not been formed yet. The Court also affirmed the two-level enhancement for maintaining a premise for drug distribution, holding that the defendant could be held accountable for a co-defendant’s maintenance of a premise that was part of a jointly undertaken criminal activity.

The First Circuit vacated a defendant’s conviction for enticing a minor after the defendant arranged with an undercover agent to have sex with a minor. The Court held that the defendant was entitled to an instruction on entrapment where there was evidence of improper inducement based on the agent offering to “bundle” legal sex with an adult with illegal sex with a minor, and where the agent downplayed the potential harm. There was also evidence that the defendant was not predisposed, given the lack of evidence of similar transactions and the defendant’s initial hesitation.