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September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the Eighth Circuit

A quarterly case summary digest of recent federal circuit court opinions

by Katharine Lau

United States v. Anderson, No. 13-2337 (8th Cir. July 17, 2014) 759 F.3d 891

Defendant appealed the denial of his motion to dismiss one count of distribution of child pornography in contravention of 18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8) after he entered a conditional guilty plea, arguing that the federal child pornography laws are unconstitutionally broad.  Defendant transmitted an image of an adult male and adult female, with his eleven year-old half-sister’s face superimposed on the female, to his half-sister’s Facebook account.  The “morphed image” contained a caption reading, “This is what we will do.”

Held:  The court analyzed this case under United States v. Bach, 400 F.3d 622 (8th Cir. 2005) because that case involved a “morphed image” of a minor’s face on another minor’s nude body.  In Bach, the image violated the statute because a child was harmed in the construction of the image.  The court said, however, this case is categorically distinguishable because it involved a minor’s face superimposed onto an adult female’s body, thus the image was not in violation of the statute.  However, the court reasoned that the image at issue implicated the government’s interest in protecting minors because the continued existence of such an image that falsely portrayed her in an explicit activity at eleven years-old will cause her both psychological and reputational harm.  Because there was no less strict alternative to satisfy the government’s compelling interest in protecting the minor from damage regardless of the size of the distribution of the image, the court held the statute constitutional as applied to this case.

United States v. Sigillito, No. 13-1027 (8th Cir. July 18, 2014) 759 F.3d 913

Defendant was convicted of multiple counts of wire fraud, mail fraud, conspiracy to commit wire and mail fraud, and money laundering stemming from his involvement in the British Lending Program (“BLP”), a Ponzi scheme.  Defendant, an attorney and Anglican bishop, was solicited by another attorney to participate in the BLP recruiting lenders and concealing defaults through debt transfers.  Around $52 million was invested in the BLP from approximately 150 investors.  Among the investors was a relative of an Assistant US Attorney in the Eastern District.  Because of the perceived conflict, the Western District prosecuted Defendant with two Eastern District AUSAs who did not hold a supervisory capacity in the prosecution.  Defendant appealed his conviction challenging the district court’s decisions from his indictment through sentencing.

Held: The Court held that regardless of the fraud allegations, the search warrant describing the criminal activity as “the Ponzi scheme” or the “investment scheme” was still comprised with adequate particularity.  Officers forgot to leave “Attachment A” with Defendant which contains a copy of the items seized from the premises.  This inadvertence did not create prejudice to Defendant  Defendant’s challenges against possible conflicts of interest for the prosecution failed because he did not show that the attorneys had an actual conflict of interest.  The court reviewed other alleged violations, including Brady violations and other various allegations of misconduct for plain error, and found that the district court’s actions contained no reversible error.  Lastly, the court, under a deferential standard, held that Defendant’s sentences were substantively reasonable because the district court possesses the authority to adjust consecutive and concurrent sentences to tailor an appropriate sentence for Defendant’s crimes.

United States v. Bell, No. 13-2641 (8th Cir. August 4, 2014) 761 F.3d 900

Defendant was convicted of conspiracy to commit sex trafficking, sex trafficking, coercion and enticement to travel in interstate commerce for prostitution, conspiracy to engage in interstate transportation, and interstate transportation for prostitution.  Defendant appealed his conviction based on challenges to the sufficiency of evidence against him.  Defendant coerced several women to travel across state lines to perform commercial sex acts for Defendant’s own monetary gain.  An undercover FBI informant responded to a website advertising prostitution and set up a meet to engage in sexual acts for money.  The FBI then raided the meeting place and arrested two prostitutes and Defendant, who admitted to being a pimp.  Defendant’s former prostitutes testified to multiple instances of traveling to perform sex acts for Defendant’s monetary gain, and in one case, under threat of physical harm.

Held:  The court held that under de novo review, a reasonable jury could find Defendant guilty of conspiracy to commit commercial sex trafficking and sex trafficking because the evidence showed that the women were coerced and were procured under deceptive means.  The court rejected Defendant’s contention that the government had to prove physical force against the women, saying that not only was there evidence showing that he had actually used physical force against at least one woman, he also threatened the safety of the women’s families, which is included in the definition of force.  Force is not limited to physical violence.

United States v. Bassett, No. 13-2642 (8th Cir. August 27, 2014), 2014 WL 3843958

Defendant appealed his conviction for conspiracy to commit bank robbery, attempted bank robbery, possession of a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm, based on insufficiency of evidence to prove a conspiracy and the district court’s denial of a motion in limine to exclude certain prior bad acts evidence. A federal inmate set up Defendant and his brother, by soliciting them to rob Pulaski Bank, intending to inform the FBI of the robbery in exchange for a sentence reduction.

Held: The court held that despite the acquittal of Defendant’s brother on the conspiracy charge, there was still sufficient evidence to that Defendant and his brother had agreed to rob Pulaski Bank.  Thus, the court upheld Defendant’s conspiracy conviction in the face of a seemingly inconsistent verdict on Defendant’s brother’s acquittal of the conspiracy charge, reasoning that acquittal of Defendant’s only alleged co-conspirator does not mandate reversal on his conviction.  Rather, as long as the verdict is supported by sufficient evidence, the court cannot interfere with the jury’s decision.  The court also held that introduction of Defendant’s prior armed bank robbery charge was permissible and not unduly prejudicial, especially because limiting instructions were given.

United States v. Henley, No. 13-1894 (8th Cir. September 10, 2014), 2014 WL 2898464

This case is a combined case against multiple defendants in a RICO prosecution for racketeering, conspiracy, and other counts of violent crimes in aid of racketeering originating from defendants’ connection with an outlaw motorcycle gang, Wheels of Soul. Defendants appealed both individually and jointly challenging the sufficiency of the evidence against them.

Held: The court held that there was sufficient evidence showing the existence of a RICO enterprise, that the predicate acts by members of Wheels of Soul constituted a pattern of racketeering, that there existed a conspiratorial agreement to promote the interests of the enterprise, and that there was sufficient evidence supporting all the guilty verdicts.  On an issue of first impression, the court held that the Eastern District of Missouri had jurisdiction to authorize cellular phone communications in Illinois.  The court agreed with Second Circuit precedent that a judge sitting in either jurisdiction where the phone is actually located or the original listening post has the authority to authorize such intercept orders.  In this case, several targets of the investigation, substantive offenses charged, and the listening post was established within St. Louis in the territorial jurisdiction of the Eastern District of Missouri.  The court disposed of the challenges by individual defendants deferring to the trial court and the province of the jury, holding that the court did not abuse its discretion in admitting or denying the admissibility of certain evidence or refusing to sever charges when all defendants were part of a racketeering conspiracy.

Katharine Lau graduated from Loyola Law School in Los Angeles, California in May 2014.

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This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.