Federal 11th Circuit Criminal Case Law Update (October 17, 2022 – October 21, 2022)

The “Cite” of the Crime Podcast

Federal 11th Circuit Criminal Case Law Update
(October 17, 2022 – October 21, 2022)

Listen to this week’s The “Cite” of the Crime Podcast episode here.


  • 6 cases
  • 0 published decisions
  • 6 unpublished decisions

Case # 1 – Rosello v. United States, No. 21-14440 (11th Cir. Unpub. Dec.)(October 21, 2022)

  • Rosello is a successive §2255  motion to vacate case. 
  • Mr. Rosello was convicted of conspiracy to commit Hobbs Act Robbery, of the Hobbs Act robbery, of conspiracy to use and carry a firearm during and in relation to a crime of violence, of using and carrying a firearm during and in relation to a crime of violence and of money laundering. 
  • Both Hobbs Act charges were predicate offenses for the firearms charges. 
  • The convictions stemmed from a robbery of an armored car where Mr. Rosello held a victim at gunpoint and Mr. Rosello and his co-defendant’s exchanged gunfire with another victim striking him in the arm.  
  • Mr. Rosello’s direct appeal was denied and he filed a §2255 motion to vacate based on Johnson v. United States, which found the residual clause of §924(c) to be unconstitutional.   
  • That motion was denied because his Hobbs Act robbery predicate offenses satisfied the elements clause of the definition of crime of violence and therefore did not rely on the unconstitutional residual clause. 
  • Mr. Rosello sought and obtained leave to file a successive §2255 motion based on the newly decided 2019 cases of United States v. Davis and Brown v. United States, which held that conspiracy no longer qualifies as a crime of violence. 
  • Mr. Rosello moved to vacate his two firearms offenses arguing that conspiracy to commit Hobbs Act robbery is not a crime of violence.
  • The district court denied the motion ruling that MR. Rosello procedurally defaulted on his argument and he could not establish prejudice to excuse his default or prove he was actually innocent. 
  • The district court also found that because the conspiracy to commit Hobbs Act robbery was inextricably intertwined with the Hobbs Act robbery and therefore any error regarding the jury’s reliance on the conspiracy was harmless.  
  • Mr. Rosello subsequently appealed. 
  • The 11th Circuit held that Mr. Rosello procedurally defaulted by not raising the issue at the trial level or attacking it on direct appeal. 
  • Under Granda v. United States, a defendant cannot collaterally attack a conviction on a vagueness theory if he failed to advance the argument at trial or on direct appeal.  
  • Mr. Rosello must show at least a substantial likelihood that the jury relied only on the conspiracy conviction, because reliance on Hobbs Act robbery would have provided a wholly independent, sufficient and legally valid basis to convict him of the firearm offenses. 
  • Here, the jury necessarily must have found that Mr. Rosello conspired to use and carry and did use and carry a firearm during and in relation to conspire to commit a Hobbs Act robbery as well as during and in relation to the Hobbs Act robbery. 
  • The Court also found that the narrow “actual innocence exception” did not apply here. 
    • The Supreme Court has applied this exception where a movant can establish that he is factually innocent of the crime that serves as a predicate offense for a sentence enhancement. 
    • However, the court does not extend the actual innocence of sentence exception to claims of legal innocence of a predicate offense justifying an enhanced sentence.  
  • Case Affirmed. 

Case #2 – United States v. Davis, No. 21-12590 (11th Cir. Unpub. Dec.)(October 21, 2022)

  • Davis is a sufficiency of the evidence in a conspiracy to engage in sex trafficking of a minor case. 
  • Mr. Davis was the subject of an online sting operation where undercover agents attempted to identify people looking to recruit minors into prostitution using social media platforms. 
  • Mr. Davis and his co-defendant, Samantha Broadhead, reached out to a fictitious 17 year old girl online and attempted to get her to travel to Florida from Colorado to engage in commercial sex acts. 
  • Mr. Davis, using the username SammybabyC, contacted the fictitious minor through Tagged.com and invited her to work as an escort in Florida. 
  • Mr. Davis offered to buy her a bus ticket and described in texts how she could pretend to be 16 and a virgin and could auction her virginity off for $10,000. 
  • The undercover agent stated in the texts that she was 17 years old and Mr. Davis continued to solicit her and bought a bus ticket.  
  • Mr. Davis was charged with conspiracy to egnage in sex trafficking by a minor under 18 USC §1591(a)(1) and (b)(2) and 1594(c) and Attempted sex trafficking of minor.  
  • Ms. Broadhead pled guilty and received 24 months. 
  • Mr. Davis proceeded to trial, was convicted and received 130 months. 
  •  On appeal, Mr. Davis argued that the trial court erred by denying his motion for judgment of acquittal because the evidence was insufficient showing that he was the one who sent the messages and that he conspired with Ms. Broadhead. 
  • Because a jury is free to choose among reasonable constructions of the evidence, the government need not disprove every reasonable hypothesis of innocence. 
  • When the government relies on circumstantial evidence, the conviction must be supported by reasonable inferences, not mere speculation. 
  • A person commits unlawful sex-trafficking of a minor when he “knowingly . . . recruits, entices, harbors, transports, provides, obtains, [or] maintains . . . a person . . . knowing, or . . . in reckless disregard of the fact, . . . that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.”
  • To prove conspiracy to engage in sex-trafficking of a minor, the government must prove these elements: (1) that two or more persons agreed to violate section 1591; (2) that the defendant knew about the conspiratorial goal; and (3) that the defendant helped voluntarily to accomplish that goal.
  • “The existence of an agreement may be inferred from the participants’ conduct.” 
  • Here, the government proved that a person with the username SammybabyC invited a person who claimed to be under 18 to Florida to be an escort and offered to buy a bus ticket. 
  • A person with a cell phone number beginning in 347 described sex acts the minor would perform, continued to solicit her and that he purchased a bus ticket. 
  • Therefore, a jury could reasonably conclude that the person sending the texts took a substantial step toward the commission of the offense supporting the attempt conviction. 
  • The evidence also revealed that the phone number that texted the fictitious minor was linked to Mr. Davis’ Facebook account, Ms. Broadhead testified that Mr. Davis set up the Tagged online account to recruit women as prostitutes, and a recording was submitted from a phone call between the fictitious minor and the 347 phone number where Mr. Davis did most of the talking and explained the travel itinerary, promised to pick her up at the bus station and told her he would provide her with drugs when she got there. 
  • The conspiracy conviction was supported by Ms. Broadhead’s testimony that she helped Mr. Davis purchase the bus ticket, she spoke to the fictitious minor to make her feel more comfortable and by text messages that showed Mr. Davis and Ms. Broadhead both chose to target the fictitious minor and agreed on the kind of work the fictitious minor would perform. 
  • And even though Ms. Broadhead had lied to law enforcement, the jury was free to believe her trial testimony that she previously lied to protect Mr. Davis and was telling the truth at trial. 
  • Mr. Davis also argued that the district court erred in admitting certain evidence. 
    • However, Mr. Davis’ appellate brief included no citations to the record pointing to the questionable evidence. 
    • The appellate court is not required to search the record for error when a party fails to offer pertinent citations to the record. 
    •  However, the 11th Circuit did look at the record here and decided to address three advertisements for escort services that were associated with his 347 phone number. 
    • Mr. Davis made conclusory statements that the challenged evidence was irrelevant and the probative value was outweighed by unfair prejudice. 
    • However, the 11th Circuit disagreed finding that the advertisements were relevant to the sex trafficking offenses because they tended to corroborate Ms. Broadhead’s testimony that Mr. Davis was her pimp and served as chief contact for clients. 
  • Case Affirmed. 

Case #3 – United States v. Gamory, No. 21-12129 (11th Cir. Unpub. Dec.)(October 18, 2022)

  • Gamory is a §3582(c)(2) and Amendment 782 sentence reduction case. 
  • Mr. Gamory was convicted of conspiracy to distribute and to possess with intent to distribute cocaine and marijuana. 
  • The PSI attributed more than 150 kilos of cocaine to Mr. Gamory giving him a base offense level of 38 and a total offense level of 44.  
  • With a criminal history category of II, his guideline range was life imprisonment. 
  • Mr. Gamory objected arguing that the testimony of cooperating witnesses was not credible with regard to the quantity of controlled substances, but the trial court overruled the objection.
  • Mr. Gamory later moved for a sentence reduction under Amendment 782 which lowered the base offense level by two levels for cocaine amounts of more than 150 kilos.
  • The district court denied the motion finding that his guideline range would remain at life imprisonment however, because the Amendment applied a 38 base offense level for an amount of cocaine in excess of 450 kilos and the district court found that the record supported over 800 kilos being attributed to Mr. Gamory. 
  • So, in order to benefit from the two level reduction from Amendment 782, Mr. Gamory had to show that his drug conspiracy offense involved less than 450 kilos of cocaine.
  • On appeal, the 11th Circuit held that the district court did not err because it followed the procedure set out in United States v. Hamilton
    • The district court considered the record available at the time of Mr. Gamory’s initial sentencing and determined that the pre-existing record established that Mr. Gamory was responsible for more than 450 kilos of cocaine.  
  • And the district court was well within its discretion to find the cooperating witnesses credible when it came to the drug quantities because the testimony was neither contrary to the laws of nature nor so inconsistent or improbable that it was unworthy of credence. 
  • . The Court also determined that Mr. Gamory could not challenge the constitutionality of his original sentence under Apprendi because that claim is outside the scope of the district court’s authority under a §3582(c)(2) sentence reduction motion.
  • Case Affirmed.  

Case #4 – United States v. Gelin No. 21-11091, 21-11505 & Fernetus No. 21-11587  (11th Cir. Unpub. Dec.)(October 18, 2022)

  • Gelin and Fernetus is an untimely motion to dismiss for selective prosecution and judge recusal case. 
  • Mr. Gelin and Mr. Fernetus were co-defendants both appealing pro se with the bulk of their arguments relying on a claim of selective prosecution. 
  • Mr. Gelin was found guilty by a jury in February 2018.
  • More than three years later, Mr. Gelin filed a Rule 12 Motion to Dismiss the Indictment for selective prosecution in April 2021, which was summarily denied by the district court as untimely. 
  • Although federal courts possess the authority to dismiss an indictment for governmental misconduct, dismissal is an extreme sanction that should be infrequently utilized. 
    • Dismissal is only favored in the most egregious cases. 
    • Under Federal Rule of Criminal Procedure 12(b)(3)(A)(iv), the defense of selective prosecution must be raised by pretrial motion if the basis is then reasonably available. 
    • An untimely motion may not be considered unless a defendant can show good cause of the delay.
    • A defendant does not have good cause warranting relief when he had all the information necessary to bring a Rule 12(b) motion before the deadline for pretrial motions. 
    • An evidentiary hearing on a defendant’s claim of selective prosecution is necessary only if the defendant presents sufficient facts to raise a reasonable doubt as to the prosecutor’s motive.
    • On appeal, Mr. Gelin argued that he did not discover the government’s selective prosecution of him because he was a Black Hatian American until after his trial.
    • However, the 11th Circuit found that Mr. Gelin’s own admission in his motion that he presented evidence of the government’s selective prosecution to his counsel before trial refuted this claim.
    • Therefore, because the basis for the motion was reasonably available to him before trial, there was no good cause for the untimely filing. 
  • The Court next addressed Mr. Gelin’s claim that the district court improperly denied his motion for recusal of the judge. 
    • Recusal is governed by two statutes. 28 USC §144 and 28 USC §455.
    • Under §144, a judge must recuse himself when a party to a district court proceeding files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party. 
      • To warrant recusal under § 144, the moving party must allege facts that would convince a reasonable person that bias actually exists.
      • The affidavit must be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause must be shown for failure to file it within such time.
    • Under § 455(a), a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
      • The test under § 455(a) is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.
      • The allegation of bias must show that “the bias is personal as distinguished from judicial in nature.”
    • Here, the motion alleged that the judge exhibited bias by ignoring evidence of racial and ethnic bias and ruling in favor of the government on various evidentiary issues. 
  • The 11th Circuit determined that the motion was properly denied because it was based solely on the district court’s conduct and adverse rulings and not based on alleged bias stemming from personal or extrajudicial sources.  
  • Therefore, the district court’s impartiality could not have reasonably been questioned.  
  • Additionally, Mr. Gelin’s motion under §144 was untimely. 
  • Mr. Gelin and Mr. Fernetus also appealed the district court’s denial of their motions for new trial based on newly discovered evidence. 
    • To merit a new trial based on newly discovered evidence, the defendant must show that:
      •  (1) the evidence was discovered following trial; 
      • (2) the defendant exercised due care to discover the evidence; 
      • (3) the evidence is not merely cumulative or impeaching; 
      • (4) the evidence is material; and 
      • (5) the evidence is of such a nature that a new trial would probably produce a different result.
    • The defendant must satisfy all of these elements. 
    • Motions for a new trial based on newly discovered evidence are highly disfavored.
    • Here, the motion was based on the allegation that the government failed to disclose that cooperating witnesses had received immunity and a sentence reduction for their cooperation.
    • However, the 11th Circuit found that defense counsel did cross examine the witnesses on their past criminal histories, continued criminal conduct, and benefits they were receiving for cooperating and therefore any newly discovered evidence was merely cumulative impeachment evidence.  
    • Therefore, the district court did not err in denying their motions for new trial. 
  • Finally, the Court rejected Mr. Gelin’s argument that the district court erred in denying his §3582(c) motion for a compassionate release sentence reduction. 
  • Case Affirmed.  

Case #5 – United States v. Laureti, No. 18-10508 (11th Cir. Unpub. Dec.)(October 18, 2022)

  • Laureti is a motion for new trial denial case involving alleged newly discovered evidence and Brady and Giglio violations. 
  • Mr. Laureti was convicted of conspiracy to commit wire fraud and wire fraud after an 11 day trial involving a multimillion dollar mortgage fraud scheme. 
  • He was sentenced to 180 months. 
  • On appeal, Mr. Laureti first argued that the district court erred in denying his motion for a new trial. 
    • Mr. Laureti claims that the newly discovered evidence related to whether the mortgage broker and lender was licensed in Florida to originate the loans charged in the indictment.
    • However, the 11th Circuit found that this claim fails because Mr. Laureti could not establish that there was a reasonable likelihood that the evidence could have affected the outcome of the trial because it amounted only to cumulative impeachment evidence. 
  • Mr. Laureti also argued on appeal that the district court erred by admitting 404(b) evidence related to Mr. Laureti’s uncharged fraudulent mortgage application that he submitted to the SBA after the scheme charged in this case, but before he was indicted. 
    • The 11th Circuit held that the district court properly admitted the evidence because Mr. Laureti put his intent at issue and the fraudulent application was probative of intent.  
    • Mr. Laureti also failed to establish that the evidence was likely to make the existence of any element of the offense more or less likely, cast the government’s case in a different light, or have a substantial effect on a government witnes’s credibility.  
  • Mr. Laureti also argued on appeal that the district court erred by excluding evidence that two co conspirators had the ability, motive and opportunity to commit the mortgage fraud without his participation and that the evidence was insufficient to support conviction. 
    • However, the 11th Circuit held that Mr. Laureti failed to establish that the evidence was likely to make the existence of any element of the offense more or less likely, cast the government’s case in a different light, or have a substantial effect on a government witness’s credibility and the extensive evidence was more than sufficient to support the jury’s verdict. 
  • Mr. Laureti also argued that a Giglio violation occurred at the sentencing hearing, but it wasn’t raised at the trial court level and  there was no showing that any subsequent disclosure would show the undisclosed testimony was false and there was no showing that an error even if it did occur could have resulted in a higher sentence. 
  • The 11th Circuit also rejected Mr. Laureti’s contention that the district court erred by applying a leader or organizer sentencing enhancement.  
    • The Court found sufficient evidence that the mortgage fraud scheme was extensive and Mr. Laureti exercised sufficient control or authority over other participants.  
  • Finally, the Court found that Mr. Laureti’s sentence was not substantively unreasonable as it was within the guideline range and well below the statutory maximum. 
  • Case Affirmed.  

Case #6 – United States v. Solano, No. 21-14191 (11th Cir. Unpub. Dec.)(October 21, 2022)

  • Solano is an ineffective assistance of counsel and request for a new attorney case. 
  • Mr. Solano was convicted for possession of a firearm by a convicted felon.  
  • He drafted a motion to suppress and his trial counsel refused to file it.  
  • On appeal, Mr. Solano argued that his conviction should be reversed because his trial counsel was ineffective for not arguing his pro se motion to suppress. 
    • The 11th Circuit dismissed this ineffective assistance claim without prejudice to allow Mr. Solano to file a §2255 motion.
    • Generally, the Court will not consider ineffective assistance of counsel claims on direct appeal where the district court did not entertain the claim nor develop a factual record. 
    • And here, the record did not contain any arguments supporting Mr. Solano’s claim. 
    • Mr. Solano also argued on appeal that the trial court erred by not giving him a new attorney.
      • The 11th Circuit held that Mr. Solano abandoned this argument because he didn’t say how the court erred or provide arguments or authority to support his position. 
      • The Court also discussed his claim that his plea was not knowing and voluntary because the trial court failed to further question him on his satisfaction with counsel.  
        • The Court, using a plain error standard, held that there was no error because the trial court asked Mr. Solano if he was entering the plea knowingly and voluntarily and he confirmed that he was.  
        • The district court also asked Mr. Solano if he was satisfied with his counsel and he said that he was. 
        • Mr. Solano pointed to no statute, rule, or precedent holding it is an error for the district court not to further question a defendant during the plea colloquy to see if he was knowingly and voluntarily entering into a plea agreement when he had previously stated that he was unhappy with his counsel. 
        • Case dismissed in part, and affirmed in part. 

Compassionate Release Cases

USA v. Jackson, No. 22-11346 (11th Cir. Unpub. Dec.)(October 19, 2022)

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