In US v. Brooks, the Eleventh Circuit stretched the meaning of “same course of conduct” far past the limits of common sense. The panel held Brooks accountable for the gun he was charged with under 18 U.S.C. § 922(g)(1), plus a stolen gun he was arrested with three months later. This wasn’t some months-long enterprise — Brooks was simply found with different guns on two separate occasions. The court found the possessions were “part of the same course of conduct,” and the two-point stolen gun sentencing enhancement applied, because: (1) both were guns and (2) both were found “merely” three months apart. Adding insult to injury, the majority also upheld the four-level “in connection with another felony” enhancement because, well, receiving a stolen gun is a felony in Georgia. It reasoned that “in connection with” includes when the gun was the fruit of the offense, and it could have facilitated the offense. So, hypothetically, even though Brooks didn’t steal the gun, he could have used it if police or the owner tried to get it back. Both the government and the dissent recognized the unfairness of applying both enhancements. It certainly seems like double dipping. Be wary of what may fall into this expansive definition of “relevant conduct” and what appears now to be a 6-point enhancement for having a stolen gun in the state of Georgia. Practice tip from the FDP’s own Chelsea Champion — push back on whether there is enough to show the person knew or should have known that the gun was stolen under Georgia law. [By Michelle McIntyre].
“Refills for everyone!” proclaimed Elizabeth Young, who owned a company that promoted pain creams and would later be convicted of violating the federal Anti-Kickback statute. A doctor employed by Young wrote prescriptions for Young’s pain creams, prescriptions that Young then steered to a pharmacy that kicked back to her a share of the government reimbursement for the creams. She also “employed” a sales rep to promote the creams, though he did no actual selling at all. On appeal, Young raised challenges to the sufficiency of the trial evidence, the forfeiture amount, and the restitution amount. In US v. Young, the sufficiency of the evidence claim got no love from the Eleventh Circuit, as tends to happen. And while Young lost her forfeiture argument, she won on the restitution issue, for reasons that highlight a difference between the two. Young argued that she should not be on the hook for the full amount of the kickbacks. On forfeiture, she said the amount should not include money she received and transferred to the bogus sales rep for his ostensible work in selling the creams. The panel ruled that this didn’t run afoul of the Supreme Court’s Honeycutt opinion prohibiting joint and several liability in forfeiture when a co-conspirator received some proceeds that never passed through the head honcho’s hands. The difference here was that Young had received the money at one point—even if she then used it to pay the costs of running the conspiracy. But while forfeiture focuses on the defendant—what she derived from the crimes—restitution focuses on the victim—and making them whole. That’s why Young won her challenge to the restitution award, which included the entire value of the kickbacks. She successfully argued that the award could not include medically necessary prescriptions to the patients, and that the burden rested on the government to show that the award was not based on such. This case was distinguishable from fraud cases, where the Eleventh Circuit puts the burden on the defendant, because fraud presupposes some amount of loss, whereas an anti-kickback violation does not. [By Joe Austin].
After being fired from Atlanta’s Department of Watershed Management, former Commissioner Jo Ann Macrina contacted the FBI to “provide information of possible corruption.” However, after several interviews, Macrina became the target of the investigation that she initiated. According to agents, she started backtracking and changing her story, prompting agents to record her last interview and eventually refer her for prosecution. In a pretrial motion, Macrina objected under Federal Rule of Evidence 106 (“the rule of completeness”) to the government admitting only the harmful portions of her interview at trial. Her motion asserted that she sought to admit additional statements from the recording, which she would provide to the court. Yet she never quoted those statements, nor did she cite the pages of the interview transcript for the district court. The district court denied her request. In US v. Macrina, the Eleventh Circuit affirmed the district court’s order but explained that the district court erred when it ruled that FRE 106 applies only to custodial statements. The district court’s “misunderstanding” appeared to stem from a misreading of precedents aimed at preventing self-serving hearsay from being introduced through other witnesses. Nonetheless, the Eleventh Circuit affirmed the district court anyway because (1) Macrina failed to timely identify specific portions of the recording she wanted to admit, and (2) FRE 106 only permits introduction of additional material that is relevant and necessary to qualify, explain, or place into context the portion already introduced to the jury. [By Melissa McGrane].