Boone: Affirming 840-Month Sentence

In United States v. Boone, No. 22-11153 (Apr. 9, 2024) (Jordan, Lagoa, Hull), the Court affirmed Mr. Boone's 840-month sentence.   

Mr. Boone pleaded guilty to using a minor to produce child pornography, and distributing and possessing child pornography, in violation of 18 U.S.C. §§ 2251 and 2252A.  The PSR recommended applying a five-level increase pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and (2) Mr. Boone “engaged in a pattern of activity involving prohibited sexual conduct.”  As explained in the PSR, the pattern-of-activity enhancement applied because Mr. Boone produced child sexual abuse material on at least two separate occasions.  With a criminal history category of I and a total offense level of 43, Mr. Boone’s advisory guidelines range was life imprisonment.  Because Mr. Boone's statutory maximum sentences were 30 years for the production offense and 20 years for each of the two distribution and possession offenses, and because the statutory maximums were less than the advisory guidelines sentence of life, U.S.S.G. § 5G1.2 provided that the sentences “shall run consecutively,” which in turn yielded a total advisory guidelines sentence of 840 months.  

On appeal, Mr. Boone argued that the district court erred by (1) applying U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement based on two or three images all involving the same victim at around the same time, and (2) considering his military service as an aggravating rather than a mitigating factor in determining his sentence.  

The Court disagreed on both fronts.  With regard to the application of U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement, the Court found invited error because Mr. Boone--through trial counsel--noted agreement to the enhancement's application.  Additionally, the Court found no procedural error in applying the enhancement.  The Court reiterated that as to § 4B1.5(b)(1), it has held that the enhancement applies if the defendant engaged in prohibited sexual conduct on at least two separate occasions, regardless of whether the crimes were committed against the same victim or different victims.  The Court also found no procedural error in the district court's consideration of Mr. Boone's military service as an aggravating factor, rather than a mitigating one.        

Finally, the Court rejected Mr. Boone's substantive reasonableness challenge.  

Al Jaberi: Affirming Convictions and Sentences for Attempted Smuggling, Failure to Notify a Common Carrier, and Submitting False or Misleading Export Information

In United States v. Al Jaberi, No. 22-12852 (Apr. 5, 2024) (Lagoa, Brasher, Tjoflat), the Court affirmed Mr. Al Jaberi's convictions and sentences.

Mr. Al Jaberi was found guilty of smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1); knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped, in violation of 18 U.S.C. § 922(e); and knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts, in violation of 13 U.S.C. § 305(a)(1).  

On appeal, he first argued that there was insufficient evidence of guilt because law enforcement neither surveilled nor investigated the location where the shipping container was loaded; failed to offer evidence about any communications between him and anyone in Iraq about the firearms; and government witnesses offered inconsistent testimony about the location of the box containing the firearms.  The Court disagreed, reviewing his arguments for plain error because although he moved for a judgment of acquittal, he did so on different grounds than those raised on appeal. 

He also argued that failure to notify a common carrier and submitting false or misleading export information are both lesser included offenses of smuggling and therefore asserts that his convictions violate the Double Jeopardy Clause.  The Court disagreed, finding the error not plain, and noting that a review of the three statutes under which Mr. Al Jaberi was convicted reveals that each statute entails different elements from the others. 

Next, he argued that his due process rights were violated because the Government failed to correct false witness testimony and made prejudicial statements during opening and closing arguments.  The Court, reviewing for plain error, disagreed.  

Finally, he argued that his sentences are procedurally and substantively unreasonable because they subjected him to double jeopardy and were greater than necessary.  The Court found his sentence procedurally reasonable because there was no double jeopardy violation.  The Court also found his sentence to be substantively reasonable because the district court did not fail to consider relevant factors due significant weight, give significant weight to an improper factor, or clearly err in considering the proper factors.   

Handlon: Affirming Denial of Motion for Compassionate Release Under Old Policy Statement

In United States v. Handlon, No. 22-13699 (Apr. 3, 2024) (Rosenbaum, Grant, Ed Carnes) (per curiam), the Court affirmed the denial of a motion for compassionate release.  

Mr. Handlon moved for compassionate release, contending that his eighty-five-year-old father had severe medical issues and needed help.  He requested that he be released to spend what time he had left with his father.  The district court denied the motion because Mr. Handlon did not provide any supporting documentation regarding his father's condition or care, or whether he was the only available caretaker.  Mr. Handlon tried to provide the court with further information, which the court construed as a motion for reconsideration and denied.  

This Court noted that when Mr. Handlon filed his motion, the Sentencing Commission had not yet amended its policy statement, and the district court was bound by Bryant's holding regarding the old catchall category--"other reasons" as determined by the Director of the Bureau of Prisons--that Congress delegated the power to define what should be considered extraordinary and compelling reasons for a sentence reduction to the Sentencing Commission, not the courts.  As a result, the Court held that Mr. Handlon was ineligible for compassionate release because he failed to present an extraordinary and compelling reason for relief recognized by the Sentencing Commission’s policy statement.  That is, Mr. Handlon's need to care for an incapacitated parent was not included in the list of reasons the Sentencing Commission considered to be “extraordinary and compelling,” so his motion was properly denied.

The Court further noted, though, that since the parties litigated this case, the policy statement has been amended to include in its definitions of “extraordinary and compelling reasons” a circumstance that is closer to the ground Mr. Handlon asserted: “The incapacitation of the defendant’s parent when the defendant would be the only available caregiver for the parent.”  While it could not retroactively apply that amendment to this appeal--as urged by Mr. Handlon--the Court agreed that Mr. Handlon could file a new motion for compassionate release.   

  

Vargas: No Speedy Trial Violation With 35-Month Delay Between Indictment and Arrest

In United States v. Vargas, No. 22-10604 (Apr. 3, 2024) (Jordan, Lagoa, Marcus), the Court affirmed the district court's denial of Mr. Vargas's motion to dismiss his indictment as a result of a 35-month delay between indictment and arrest.  

Mr. Vargas was charged--in September 2018--with conspiracy to possess with intent to distribute one kilogram or more of heroin and possession with intent to distribute one kilogram or more of heroin.  He was indicted in Florida, but was living in New York at the time.  He was not arrested until nearly 3 years later.  The government made immediate attempts to arrest him--with South Florida DEA official reaching out to a number of groups with the New York Division of the DEA to assist--but its efforts stalled around September 2019.  Then, the global COVID-19 pandemic hit, and no activity in Mr. Vargas's case occurred during the first sixteen months of the pandemic.  Mr. Vargas was detained by immigration officials in New York in July 2021, released and re-arrested by the U.S. Marshals Service in August 2021, and finally arraigned in September 2021. 

Mr. Vargas moved to dismiss his indictment, claiming a violation of his right to a speedy trial on account of the delay between indictment and arrest.  The district court denied the motion, finding that the first three Barker factors did not weigh heavily against the government.  More specifically, the district court found that the government had not acted in bad faith or deliberately, but rather had been "merely negligent" in its efforts to apprehend Mr. Vargas.  

This Court agreed, finding that the first three Barker factors did not weigh heavily against the government.  It found that agents had acted in good faith and with due diligence.  Additionally, the Court noted that an emergency global health epidemic was "exactly the kind of 'complicating factor' that would reduce the government’s responsibility for a delay in making an arrest."  Evidence adduced at a hearing in the district court demonstrated that the pandemic had encumbered the government's efforts to arrest Mr. Vargas.  So, in the Court's view, a global pandemic like COVID-19 that is beyond the control of all the parties involved justifies an appropriate delay, more akin to a delay due to a missing witness.  Per the Court, even if little activity takes place for a year or two, the government will not necessarily be held responsible for the delay, as long as the government’s conduct was unintentional and in good faith, even if negligent.  The Court also found that while Mr. Vargas had timely asserted his constitutional right to a speedy trial, that did not excuse him from showing prejudice under the fourth Barker factor.  With regard to prejudice, the Court noted that any delay did not affect the evidence, the charges, the legal defenses or strategies, or any other aspect of the criminal proceedings.  

Judge Jordan concurred in the judgment.  He wrote separately to note that, with regard to the second Barker factor--the reason for the delay--the lower courts were "way too charitable in describing the government's conduct."  He specifically disagreed with the lower court's characterization of law enforcement's efforts as diligent.  Additionally, though the pandemic was a complicating factor, agents were still able to communicate with one another electronically or by phone about pending matters, and here, "[t]he record contains nothing, absolutely nothing, about any communications between agents during the pandemic."  Were he not bound by the clear error standard on appeal, Judge Jordan noted that this case presented "a set of facts [that] called for a ruling which might have a deterrent effect on government apathy."            

Alhindi: Addressing Competency Evals Under 4241

In United States v. Alhindi, No. 23-11349 (Apr. 1, 2024) (Rosenbaum, Newsom, Luck) (per curiam), the Court affirmed the district court's rulings re: competency. 

This appeal raised two questions regarding how to apply 18 U.S.C. § 4241, which sets forth the procedures for determining a defendant's competency to stand trial and addressing any incompetency.  

First, the Court held that the statute permits a court to order more than one competency hearing and commitment order for the same defendant in a single case.      

Second, the Court held that the four-month period to which § 4241(d)(1) refers is the period during which the defendant receives treatment while he is hospitalized--meaning, it begins with the defendant's hospitalization.  The Court rejected Mr. Alhindi's argument that the period begins with the entry of the commitment order.    

The Court specifically reserved for another time (in footnote 4)--in a case where it is properly presented--the issue of whether the Due Process Clause limits the time the BOP has to hospitalize a defendant following a district court's order directing it to do so.  

Judge Rosenbaum concurred, writing separately to point out that the Court's holding that the four-month time limit in § 4241(d) applies to the hospitalization period does not mean that the Attorney General has free rein under the statute to hold a defendant for an unreasonable prehospitalization period after the court has ordered commitment.  She clarified that in her view, the prehospitalization period is also subject to reasonable limitations under § 4241.  She also reasoned that the delays that the Due Process Clause may tolerate may still amount to unreasonable delay under § 4241.  She specifically pointed to the government's admission at oral argument that the average wait time over the past few years has reached as much as nine months, and noted: "That is still a long time."      

Gray: Conviction for Conspiracy to Commit a Controlled-Substance Offense Requires Proof Only that Defendant Knew He Possessed a Controlled Substance, Not that He Knew He Possessed a Certain Substance

In United States v. Gray, No. 22-13516 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court affirmed Mr. Gray’s conviction for conspiracy to commit a controlled-substance offense.

The Court rejected Mr. Gray’s chief contention: that his conviction could not stand because the government failed to prove that he knowingly possessed--as the indictment alleged--either “a Schedule II controlled substance” or, more specifically, “50 grams or more of methamphetamine.” This argument, the Court held, was foreclosed by prior-panel precedent requiring only that the government prove general knowledge to obtain a controlled-substance conviction. That the indictment listed a specific substance simply specified an element of an enhanced penalty under 21 U.S.C. § 841(b).

The Court also rejected argument concerning the district court’s denial, as untimely, of Mr. Gray’s Rule 29 motion for judgment of acquittal. It held that the denial, although erroneous, was harmless because this issue depended entirely on Mr. Gray’s knowledge argument--which the Court had rejected.

Tripodis: Government May Recommend Supervised Release Where Plea Agreement is Silent on the Matter

In United States v. Tripodis, No. 22-12826 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court upheld the supervised-release portion of the sentence for Mr. Tripodis’s general-conspiracy conviction under a negotiated plea agreement.

Mr. Tripodis argued that the plea agreement did not contemplate the imposition of supervised release, and that the government and the district therefore breached the agreement by recommending supervised release and erred by ordering it, respectively. The Court rejected both arguments. It determined that the plea agreement’s scope was unambiguous: it required only that the government recommend a total custodial sentence of sixty months. In the absence of a supervised-release provision, the government was free to recommend supervised release. The Court alternatively determined that, even if the agreement was ambiguous, extrinsic evidence reflected Mr. Tripodis’s understanding that he could be subject to supervised release. This evidence included Mr. Tripodis’s and his counsel’s statements at the initial plea entry and sentencing, Mr. Tripodis’s affirmative response to the district court’s asking if he understood that the court could sentence him to a three-year term of supervised release, and counsel’s failure to dispute the government’s argument for supervised release at sentencing.

Notably, the Court acknowledged that a defendant might be “unintentionally misled” where his plea agreement does not “explicitly state” the extent of the government’s promises to, or requirements of, the defendant. The Court therefore expressed that the government, in future cases, “should” make “clear . . . what it is promising—and what it is not—to the defendant.”

Dubois: "Controlled Substance Offense" Under the Sentencing Guidelines Refers to Substances Regulated by State Law at the Time of the State Conviction, Not the Time of Federal Sentencing

In United States v. Dubois, No. 22-10829 (Mar. 5, 2024) (William Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Dubois’s convictions and sentence for attempting to smuggle firearms out of the United States, delivering firearms to a common carrier for shipment without written notice, and possessing a firearm as a felon.

The Court denied Mr. Dubois’s motion to stay pending the Supreme Court’s decisions in United States v. Rahimi, No. 22-915, and Jackson v. United States, No. 22-6640. It then rejected each of Mr. Dubois’s five claims:

First, the Court held that its precedent foreclosed argument that the federal felon-in-possession statute violates the Second Amendment. It otherwise refused to accept that New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), abrogated that precedent without “clearer instruction from the Supreme Court” -- particularly given that Bruen makes clear that its holding is in keeping with District of Columbia v. Heller, 554 U.S. 570 (2008), and the Bruen majority mentioned neither felons nor the felon-in-possession statute.

Second, and contrary to Mr. Dubois’s sufficiency-of-evidence argument, the Court held that the record contained ample circumstantial proof that Mr. Dubois knew his shipment contained firearms.

Third, the Court rejected argument that Mr. Dubois’s prior marijuana conviction in Georgia could not establish a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). In reaching this decision, the Court joined circuits that have held that, for prior state convictions, “controlled substance” refers to drugs on the state’s drug schedules, rather than those regulated by federal law. It then adopted the rule of the Third, Sixth, and Eighth Circuits that “controlled substance” also refers to a substance that was regulated by state law at the time the defendant was convicted of the state drug offense, not the time of federal sentencing. This is so, the Court reasoned, because the guideline’s phrase “subsequent to” supports a backward-looking approach. Additionally, the Supreme Court’s reasons for adopting a time-of-state-conviction approach when it interpreted ACCA’s similar provision, see McNeil v. United States, 563 U.S. 816 (2011), compel the same approach under the guideline.

Fourth, the Court held that its precedent also foreclosed argument that Mr. Dubois’s stolen-gun sentence enhancement, without proof of knowledge that the gun was stolen, violated the Fifth Amendment.

Fifth, applying the plain-error standard, the Court held that undisputed record evidence supported the district court’s determination that Mr. Dubois could pay his $25,000 fine.

Judge Rosenbaum, with Judge Abudu joining, concurred. This concurrence separately expressed, among other things, why the Supreme Court’s impending decisions in Jackson and Brown v. United States, No. 22-6389, are unlikely to affect Mr. Dubois’s § 2K2.1(a)(4)(A) claim. The concurrence emphasized that Mr. Dubois’s case arose under the Sentencing Guidelines, while Jackson and Brown arose under ACCA. This “makes all the difference,” it explained, because ACCA defines “controlled substance” by express reference to the federal Controlled Substances Act, or “CSA,” and therefore directs that a “controlled substance” is what the CSA says it is, no matter how state law defines it. Neither Congress nor the federal Sentencing Commission can amend the CSA or, by extension, ACCA. And the guideline’s lack of statutory cross-reference makes Mr. Dubois’s case and McNeil indistinguishable.

Kent: Affirming Admission at Trial as Non-Hearsay a LEO's Statement Recounting Witness Statements that Implicated Defendant

In United States v. Kent, No. 22-13068 (Feb. 26, 2024 (Wilson, Jill Pryor, Brasher), the Court affirmed Mr. Kent's conviction. 

Mr. Kent was charged with RICO conspiracy and five substantive crimes, including an attempted murder.  The government alleged that the gang Mr. Kent was allegedly a member of murdered a former gang member--Rhodes--for cooperating with the police's investigation into the attempted murder of another individual--Muhammad. Specifically, the government’s theory was that Mr. Kent and other alleged gang members believed that Rhodes told the police that Mr. Kent had attempted to murder Muhammad and, then, murdered Rhodes for that reason.  To support this theory, the government introduced an investigator’s testimony from a preliminary hearing in a related case, which identified Rhodes as cooperating with law enforcement to implicate Mr. Kent in the attempted murder of Muhammad.  By offering the testimony, the government sought to establish that other gang members present at the hearing learned of Rhodes’s apparent cooperation and murdered him because of it, i.e., the government offered the out-of-court statements for the effect they had on the listener.    

Mr. Kent challenged the admission of the above testimony, arguing it was hearsay and admitted in violation of the Confrontation Clause.  The Court disagreed, finding the testimony admissible as nonhearsay, offered for the effect it had on the listeners and not for the truth of the matter asserted.  The Court further found the testimony relevant for a non-hearsay purpose, and found that the district court took sufficient steps to ensure that the jury did not consider the out-of-court statements as substantive evidence of guilt.   

Rudolph: Holding that § 2255 Motions are Vehicles for Attacking Sentences, Not Convictions

In Rudolph v. United States, No. 21-12828 (Feb. 12, 2024) (Wilson, Grant, Brasher), the Court found Mr. Rudolph's attempts to collaterally attack his sentences barred by his plea agreement.  

In order to avoid the death penalty for setting off a series of bombs (some during the Olympics in Atlanta), Mr. Rudolph pleaded guilty to six federal arson charges and four counts of use of a destructive device during and in relation to a crime of violence.  As part of his plea deal, he waived his right to appeal his conviction and sentence, as well as his right to collaterally attack his sentence in any post-conviction proceeding, including under 18 U.S.C. § 2255.  His waiver specifically stated: "In consideration of the Government’s recommended disposition, the defendant voluntarily and expressly waives, to the maximum extent permitted by federal law, the right to appeal his conviction and sentence in this case, and the right to collaterally attack his sentence in any post-conviction proceeding, including motions brought under 28 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground."

Post-Davis, however, Mr. Rudolph filed a § 2255 motion to vacate his § 924(c) convictions and sentences because his arson offenses no longer qualified as crimes of violence.  The district court denied the motion, finding it barred by the plea agreement because "it is not possible to collaterally attack only a conviction under 28 U.S.C. § 2255, which provides an avenue to attack the defendant’s sentence."

On appeal, this Court agreed with the district court, holding that § 2255 is a vehicle for attacking sentences, not convictions, and therefore finding Mr. Rudolph's motion barred by his plea agreement.  The Court noted: "Section 2255 fundamentally remains a procedure for prisoners to challenge their sentences. That is no less true when the method of attack is to show that a conviction was illegal. Even then, a motion under § 2255 is a collateral attack on the proceeding or process of detention."  

The Court also refused to adopt a miscarriage-of-justice exception to the general rule that appeal waivers are enforceable, splitting from the First and Eighth Circuits.  And even so, the Court noted that Mr. Rudolph was not "actually innocent" of the § 924(c) convictions because actual innocence means factual innocence--that is, it is more likely than not that no reasonable juror would have convicted him. 

Finally, the Court obliquely hinted that there may be other mechanisms by which Mr. Rudolph could collaterally challenge his convictions--such as maybe remedies available at common law--but failed to specifically delineate what those mechanisms were.              

Sanfilippo: Dismissing Appeal Raising Potentially Viable SOL Defense as Waived by Guilty Plea

In United States v. Sanfilippo, No. 22-11175 (Feb. 8, 2024) (Jordan, Lagoa, Marcus), the Court dismissed Mr. Sanfilippo's appeal.

Mr. Sanfilippo appealed his conviction for wire fraud pursuant to a guilty plea.  He argued that the district court erred in denying his motion to dismiss the indictment against him because it was issued after the expiration of the federal statute of limitations under 18 U.S.C. § 3282.  More specifically, he argued that the district court misinterpreted § 3282(a), and thus incorrectly concluded that the government indicted him within the statute of limitations by filing an information.  His argument specifically relied on a case that was pending before this Court at the time of his plea--United States v. B.G.G.  At the change of plea hearing, the government noted that if it turned out that the government was in error by filing an information within the statute of limitations, Mr. Sanfilippo "would be exonerated at that point, just as a matter of fundamental fairness." The government further noted that what it would do was "allow [Sanfilippo] to withdraw his guilty plea, and then [the government] would have to dismiss the charges, because the statute of limitations had run.  Sanfilippo would be able to file a motion to dismiss based on the statute of limitations again, in which case it would be granted at that point."  

The Court held, however, that it could not resolve the statute of limitations issue raised because Mr. Sanfilippo entered an unconditional guilty plea and, therefore, waived his ability to appeal the district court's denial of his motion to dismiss the indictment. The Court reiterated that a defendant’s unconditional plea of guilty, made knowingly, voluntarily, and with the benefit of competent counsel, waives all non-jurisdictional defects in that defendant’s court proceedings.  As such, if Mr. Sanfilippo wished to preserve appellate review of the district court's denial of his motion to dismiss the indictment while pleading guilty, he should have entered into a conditional plea in accordance with Fed. R. Crim. P. 11(a)(2).  The government's statements at the change of plea hearing were insufficient to demonstrate its (and the court's) direct assent to a conditional plea.   

Judge Jordan concurred in full, but wrote separately to alert the parties that their agreement to allow Mr. Sanfilippo to withdraw his guilty plea if the Court ultimately rules against the government on the statute of limitations issue— something the district court seemed to countenance—will require traversing some tricky jurisdictional terrain.  This is so because a district court has limited jurisdiction to set aside or modify a defendant's conviction or sentence, and it does not possess inherent authority to take such action.  Judge Jordan expressed confusion over how it is that the parties believed that they would be able, months or years from now, to go back to the district court and request that Mr. Sanfilippo be allowed to withdraw his guilty plea in a closed case.  He noted the possibility of Mr. Sanfilippo seeking collateral relief, which has its own limitations period.        

Daniels: Affirming Hobbs Act Robbery Convictions and Sentence, With One Judge Noting Pattern Instruction on Identification Needs Updating

In United States v. Daniels, No. 22-10408 (Jan. 24, 2024) (Jordan, Lagoa, Marcus), the Court affirmed Mr. Daniels's convictions and sentence. 

Mr. Daniels was convicted of ten counts of Hobbs Act robbery and sentenced to 180 months' imprisonment.  

On appeal, he first argued that the district court erred by rejecting his proposed jury instruction on eyewitness identifications, taken from the Third Circuit's model instructions.  The Court disagreed, finding that the instructions given substantially covered Mr. Daniels's proposed instruction on eyewitness identifications.   

He next argued that cumulative evidentiary errors prejudiced his right to a fair trial.  Applying plain error review to the claims of evidentiary error, the Court disagreed.

He also argued that the jury lacked sufficient evidence to convict him under Count 7 of the superseding indictment.  First, he argued that no reasonable jury could find beyond a reasonable doubt that the robber in Count 7 threatened the victim with force or violence—a necessary condition for Hobbs Act robbery. Second, he argued that no reasonable jury could find, beyond a reasonable doubt, that he committed the robbery alleged in Count 7.  The Court rejected both arguments.   

Finally, he argued that his sentence was substantively unreasonable because the district court accounted for Mr. Daniels's Count 7 conviction.  The Court found this argument failed because it rested only on the assumption that there was insufficient evidence to convict him for the robbery alleged in Count 7.

Judge Jordan concurred in full, but wrote separately to urge the Eleventh Circuit Committee on Pattern Jury Instructions to revise the pattern instruction on identification to allow juries to consider, in appropriate cases, that the witness and the person identified are of different races.  He noted that the Eleventh Circuit's pattern instruction on identification has not been substantively updated since 1985, almost 40 years ago.  In his view, it is time for the Court to take account of the abundant literature on cross-racial identification and revise its instruction on eyewitness identification to permit juries to consider, in appropriate cases, that the witness and the person identified were of different races.       

Pugh: Finding 18 U.S.C. § 231(a)(3) Facially Constitutional

In United States v. Pugh, No. 21-13136 (Jan. 18, 2024) (Lagoa, Brasher, Boulee (N.D. Ga.)), the Court affirmed Ms. Pugh's conviction.  

The Court addressed an issue of first impression regarding the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce.  It was alleged that during a protest in Mobile, Alabama, Ms. Pugh shattered the window of a police car that was blocking protestors from walking on the interstate.  Ms. Pugh moved to dismiss the indictment, arguing that § 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress’s power to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of speech and expressive conduct, activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment’s Due Process Clause. 

With regard to Ms. Pugh's first argument--that § 231(a)(3) is unconstitutional because it exceeds Congress's power under the Commerce Clause--the Court disagreed because the statute's jurisdictional element--the requirement that the civil disorder “in any way or degree obstruct[], delay[], or adversely affect[] commerce”--is enough to limit the statute’s scope to constitutional applications.  If a criminal statute contains a jurisdictional element that limits the statute to constitutional applications, that jurisdictional element immunizes the statute from a facial constitutional attack.  Ms. Pugh had argued that the criminal act committed was too removed from any connection to commerce, but the Court, while acknowledging that argument to be a strong one, found that the jurisdictional element of interstate commerce need not link directly to the criminalized act itself as long as the object of the criminal act is sufficiently connected to interstate commerce.     

With regard to Ms. Pugh's second argument--that §231(a)(3) violates the First Amendment because it broadly prohibits protected speech and expressive conduct--the Court held that the statute does not affect must speech at all.  That is, although “interfere,” by itself, could include speech, it is best read in § 231(a)(3) alongside “obstruct” and “impede” as prohibiting someone from hindering a law enforcement officer or fireman with more than mere words.  Here, it was merely hypothetical that § 231(a)(3) could be enforced against speech.  And the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.  The Court note that it need not decide today whether the statute might prohibit certain kinds of expressive activities that have the effect of blocking police officers from quieting a riot—such as directing others to riot.   

With regard to Ms. Pugh's third argument--that the statute on its face is a content-based restriction of activities protected by the First Amendment--the Court held that § 231(a)(3) is not a content-based regulation of speech.  If it affects speech at all, § 231(a)(3) is content-neutral.  Because it applies to “any act to obstruct, impede, or interfere with any fireman or law enforcement officer” performing official duties “incident to and during the commission of a civil disorder” affecting commerce or a federally protected function, it does not draw distinctions based on the message conveyed by the relevant act.  

Finally, with regard to Ms. Pugh's fourth argument--that § 231(a)(3) violates the Fifth Amendment’s Due Process Clause because it is vague on its face--the Court disagreed.  Here, because Ms. Pugh allegedly engaged in conduct clearly proscribed by the statute, she cannot complain of the vagueness of the law as applied to the conduct of others.