In US v. Moore, we see another swing and miss on a justification defense―the appeals court concedes that the defense exists in theory, but the facts, as always, are not enough. Moore abused his girlfriend, got locked up, then returned home to her; the girlfriend’s ex-husband visited the home to check on her; when Moore and the girlfriend heard the ex-husband outside, neither called 911; instead, Moore grabbed the girlfriend’s gun and, as the ex-husband walked through the back door, Moore shot and killed him. At trial, he pled self-defense, but lost. On appeal, the panel held that Moore failed to prove the affirmative defense because he did not call 911, he grabbed the gun from the girlfriend and used it, he made everything worse by drinking and drugging, and he had a prior felon-in-possession conviction. The panel also held that the ten-year restriction for admission of prior convictions under Fed. R. Evid. 609(b) is not tolled while a defendant is on probation or supervision release. The ten-year period begins running with the conviction or release from confinement―and supervision is not confinement. The district court erred by admitting Moore’s prior conviction at trial, but the panel found the error to be harmless and affirmed the convictions. [By Suzanne Hashimi].
Your salary belongs to you, right? Maybe not, if you’re convicted of fraud! In US v. Gladden, the Eleventh Circuit heard appeals from two pharmacy operators convicted of health care fraud, aggravated identity theft, and more. The pharmacy billed for fraudulent and medically-unnecessary prescriptions. Linton lied about who was receiving the prescriptions, while Gladden lied only about whether the prescriptions were medically necessary. The panel vacated Gladden’s aggravated identity theft convictions. Why? Dubin v. United States, 143 S. Ct. 1557 (2023). For aggravated identity theft, it is no longer sufficient that the means of identification facilitate the crime. To satisfy Dubin, the use of the identification must be “at the crux” of what makes the conduct criminal. When the use of the identifying information is “merely ancillary to the deception,” as it was in Gladden’s case, there is no aggravated identify theft. Practice tip: In these cases, thanks to Dubin, the government has a new, higher burden. Hold them to it. One last takeaway: Because the company was so “permeated with fraud” and wouldn’t have existed in the same form without Gladden’s fraud, his salary was properly considered “gross proceeds traceable to the commission of the offense.” The forfeiture judgment seizing Gladden’s salary was proper. Move over IRS, there’s a new sheriff in town. [By Jaster Francis & Allison Dawson].
Lawrence Curtin filed several civil lawsuits, then objected to their dismissal by threatening the federal magistrate judge with death, and by sending a link to a gospel song entitled “Road to Glory.” A federal jury convicted Curtin for threatening a federal official, and the judge imposed a 60-month sentence that nearly doubled the guideline range. At sentencing, the judge discussed his own childhood in evangelical churches and his certainty that the word “glory” in “Road to Glory” meant heaven (hence, the threat of death). On appeal, the panel asked whether the district court had substantively erred by considering an impermissible sentencing factor―the judge’s own experience with protestant churches. In US v. Curtin, the panel held that the judge’s sentence contemplated other factors as well, so at most this was harmless error. But in a concurrence as lengthy as the opinion itself, Judge Newsom demonstrated that the Eleventh Circuit is wildly inconsistent in how it treats impermissible-factor challenges, at times classifying the error as “substantive reasonableness,” at other times classifying it as “procedural reasonableness.” The two standards have very different contemporaneous-objection rules, so the arbitrary label often (unfairly) drives the outcome of a sentencing appeal. Judge Newsom argued that an impermissible-factor challenge should be a procedural error, where the defendant bears the burden of articulating a contemporaneous, specific objection to the district court’s error, lest he fall into plain-error review on appeal. One practice tip: Judge Newsom reminded us to abandon blanket, generic objections to the reasonableness of a sentence and urged us to give the district judge specific notice, on the spot, of every alleged sentencing error. [By Ashley Martin].