USA v. Barry Wayne Hoover

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11993
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARRY WAYNE HOOVER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00046-CEH-TGW-1
____________________
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2 Opinion of the Court 22-11993
Before WILSON, G RANT, and L UCK , Circuit Judges.
PER CURIAM:
Barry Hoover was indicted and found guilty of theft of
government funds and making false statements. He now
challenges several of the district court’s rulings relating to motions
in limine, sentencing, and restitution. Because Hoover has failed
to show that the district court erred in any of these rulings, we
affirm.
I.
Barry Hoover is a Navy veteran who has been receiving
disability benefits from the Department of Veterans Affairs since
1997. The VA awards benefits based on the severity of one’s
disability. According to the government, Hoover falsely
represented his disability to the VA to receive disability benefits
that he would otherwise not be entitled to. Nearly a decade passed
before the VA became suspicious and investigated Hoover. As part
of the investigation, a special agent for the VA’s Office of the
Inspector General called Hoover, spoke with him, and recorded
the conversation. The agent introduced himself as being “with the
Department of Veterans Affairs”; he did not provide his real name,
position, or title. During this call, Hoover explicitly
misrepresented his disabled status and even claimed that his
disability had gotten worse.
Hoover was later indicted for theft of government funds and
making false statements to a government official in violation of 18
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22-11993 Opinion of the Court 3
U.S.C. § 641 and 18 U.S.C § 1001 respectively. He pleaded not
guilty and proceeded with trial. Before trial, Hoover filed motions
in limine to suppress the recorded phone call with the VA agent.
According to Hoover, he had a reasonable expectation of privacy
under doctor-patient privilege because he thought he was speaking
to a medical clinician. The district court overruled Hoover’s
objection at trial, finding that Hoover did not have a reasonable
expectation of privacy because the VA agent never identified
himself as a clinician, and that Hoover willingly discussed his
medical information on the call.
Hoover asserted in his opening statement that he was being
prosecuted in retaliation for refusing to cooperate with the
government and testify against another defendant in a separate
case. The government brought a motion in limine, arguing that
there was no good faith basis for this argument. It stated that
Hoover’s retaliatory prosecution argument amounted to selective
or vindictive prosecution, which must be raised in a pretrial
motion. Because Hoover failed to make such a motion, he waived
this argument and could not raise it at trial. The district court
agreed and granted the government’s motion.
Hoover was found guilty. The probation officer revised the
original presentencing investigation report, and neither party
submitted objections. The report concluded a Guidelines
imprisonment range of 27 to 33 months and calculated that Hoover
owed $429,578.09 in restitution.
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4 Opinion of the Court 22-11993
Hoover later objected to the PSI’s Guidelines range and
restitution calculations at sentencing. He claimed that the loss
amount in the PSI was inaccurate because his disability had not
been objectively determined. He also argued for a downward
variance and 2-point reduction for acceptance of responsibility
under Sentencing Guidelines § 3E1.1(a) (Nov. 2018). Hoover
provided a written statement accepting responsibility.
The district court overruled Hoover’s acceptance of
responsibility objection because he failed to show responsibility in
a timely manner. The court also concluded that, based on the
evidence, the PSI calculation was a reasonable estimate of loss.
Ultimately, it imposed a total sentence of 27 months’
imprisonment and restitution of $429,568.09.
Hoover now argues that the district court erred by denying
his motion in limine regarding his phone call with the VA agent, by
granting the government’s motion in limine to preclude him from
mentioning retaliation during the trial, by rejecting his acceptance
of responsibility, and by determining the government’s actual loss
to be $429,568.09.
II.
We generally review a district court’s evidentiary rulings for
abuse of discretion. United States v. Massey, 89 F.3d 1433, 1441 (11th
Cir. 1996). Under this standard, we reverse a district court’s ruling
only if it applied an “incorrect legal standard,” followed “improper
procedures in making the determination,” or made “findings of fact
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22-11993 Opinion of the Court 5
that are clearly erroneous.” United States v. Harris, 989 F.3d 908,
911 (11th Cir. 2021) (quotation omitted).
We review for clear error a district court’s findings about
acceptance of responsibility. United States v. Andres, 960 F.3d 1310,
1318 (11th Cir. 2020). We also review for clear error a district
court’s loss determination and the factual finding regarding the
amount of restitution. United States v. Cobb, 842 F.3d 1213, 1218
(11th Cir. 2016). Though deferential, clear error still requires that
findings of fact be supported by substantial evidence. Id.
III.
Hoover challenges both of the district court’s orders on the
motions in limine. He first contends that the district court abused
its discretion when it denied his motion in limine to exclude
evidence of his recorded phone call with the VA representative. He
next argues that the district court abused its discretion when it
granted the government’s mid-trial motion in limine regarding his
retaliation argument. The record, however, contains sufficient
evidence to support both rulings.
Motions in limine are made with the purpose of excluding
anticipated prejudicial evidence before it is actually offered because
such evidence would be inadmissible at trial. Luce v. United States,
469 U.S. 38, 40 n.2 (1984). They are often confused with motions
to suppress, which are used to prohibit the introduction of illegally
obtained evidence at a criminal trial. United States v. Lall, 607 F.3d
1277, 1288 (11th Cir. 2010). Though technically distinct, both
motions are used to exclude certain evidence at trial and are
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6 Opinion of the Court 22-11993
reviewed for abuse of discretion. Andres, 960 F.3d at 1315; Sellers v.
Nationwide Mut. Fire Ins., 968 F.3d 1267, 1272 (11th Cir. 2020).
We construe Hoover’s motion in limine regarding his phone
call with the VA agent as a motion to suppress because it is based
on an argument that the evidence was illegally obtained.
According to Hoover, he thought he was speaking to a medical
clinician rather than an informant. He thus argues that he has a
reasonable expectation of privacy over the contents of the phone
conversation, and that the government unlawfully recorded that
phone call without his consent.
To start, the government did not unlawfully record
Hoover’s phone conversation. While 18 U.S.C. § 2511 generally
prohibits a person from intentionally intercepting a wire
communication, there are exceptions to this general prohibition.
The inquiry for determining whether a recording was improper
under § 2511 is the same as that used for the Fourth Amendment.
United States v. McKinnon, 985 F.2d 525, 527 (11th Cir. 1993). Under
this standard, the question is “whether a reasonable or justifiable
expectation of privacy exists.” Id. And that depends on (1) whether
the defendant has a subjective expectation of privacy, and (2)
whether that expectation is also objectively reasonable. Id.
A defendant who willingly shares information with a third
party does not meet this standard. That is because a defendant has
“no legitimate expectation that the person to whom he is speaking
will not relate the conversation to the legal authorities, either by
repetition or by the recording of the conversation.” United States v.
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22-11993 Opinion of the Court 7
Haimowitz, 725 F.2d 1561, 1582 (11th Cir. 1984). It does not matter
for Fourth Amendment purposes that the defendant did not know
his conversation would be recorded or transmitted. United States v.
Shields, 675 F.2d 1152, 1158 (11th Cir. 1982). So long as the
defendant willingly relayed information to a third party, he
knowingly took the risk that it may be shared. Id.
In that same vein, § 2511 allows a person acting under the
color of law to record a call in which they are “a party to the
communication.” 18 U.S.C. § 2511(2)(c). That means the
government does not violate § 2511 when its informant records a
conversation with a defendant, even if the defendant does not
know that they are speaking with an informant. Shields, 675 F.2d
at 1158.
Those points show that the recording here was proper. The
VA agent was acting under the color of law because he acted as an
informant for law enforcement by knowingly calling Hoover and
recording their conversation. See United States v. Davis, 799 F.2d
1490, 1492–93 (11th Cir. 1986). While Hoover argues that he
thought the agent was a medical clinician, the agent never actually
identified himself as a doctor; rather, he merely stated that he was
“with the Department of Veterans Affairs.” And the fact that
Hoover did not know that the agent would record their
conversation or share its contents with the government does not,
by itself, show that he had a reasonable expectation of privacy. See
Shields, 675 F.2d at 1158. Instead, he took a risk by willingly
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8 Opinion of the Court 22-11993
speaking with the agent. Id. The district court did not err in
denying Hoover’s motion in limine with respect to the phone call.
Nor did the district court abuse its discretion by granting the
government’s motion in limine blocking Hoover’s retaliation
argument. Federal Rule of Criminal Procedure 12(b)(3)(A)
requires a motion alleging a “defect in instituting the prosecution”
to be made before trial. This includes selective prosecution claims,
which allege a defect in the prosecution process and thus have “no
bearing on the determination of factual guilt.” United States v.
Scrushy, 721 F.3d 1288, 1305 (11th Cir. 2013) (quotation omitted).
Hoover’s retaliation claim is essentially a selective
prosecution claim and was thus improperly raised during trial.
Hoover first made his retaliation argument in his opening
statement during trial, stating that he was prosecuted in this case
because “he would not play along in another federal prosecution.”
As his counsel explained, Hoover’s retaliation argument was being
used not “in the criminal sense, but rather in the biased sense.”
Because Hoover’s retaliation claim essentially alleges bias by the
prosecution and does not go towards the merits of criminal
liability, it must be raised by pretrial motion and cannot be raised
for the first time at trial. See Scrushy, 721 F.3d at 1305. The district
court thus did not err in granting the government’s motion in
limine precluding further argument regarding retaliation.
IV.
Hoover also disputes his sentencing and restitution
calculation. First, he contests the district court’s denial of a
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22-11993 Opinion of the Court 9
reduction based on acceptance of responsibility. Second, he argues
that the district court improperly calculated the loss due to his
fraud. Because the district court did not clearly err on either point,
we affirm.
The Sentencing Guidelines allow for a two-point reduction
of a defendant’s offense level if he “clearly demonstrates
acceptance of responsibility for his offense.” Sentencing
Guidelines § 3E1.1(a) (Nov. 2018). “This adjustment is not intended
to apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.” Id.
§ 3E1.1(a) cmt. n.2. Only in rare circumstances, such as when a
defendant goes to trial to assert and preserve issues not related to
factual guilt, may acceptance of responsibility still apply after trial.
Andres, 960 F.3d at 1318.
The district court did not err in denying Hoover’s request for
a reduction based on acceptance of responsibility. Hoover’s pretrial
statements do not suggest acceptance of responsibility; Hoover
only accepted responsibility after trial. This is also not a rare
circumstance where acceptance of responsibility applies despite
trial because nothing in the record suggests that Hoover pursued
trial only to preserve challenges. See Andres, 960 F.3d at 1318–19.
The district court was well within its discretion to deny Hoover’s
request for reduction based on his late-breaking acceptance of
responsibility.
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10 Opinion of the Court 22-11993
Lastly, the district court did not clearly err in its loss
calculation. “The amount of restitution must be based on the
amount of loss actually caused by the defendant’s conduct.” United
States v. Baldwin, 774 F.3d 711, 728 (11th Cir. 2014) (quotation
omitted). The determination of this amount is an “inexact
science.” Id. (quotation omitted). So while the government must
establish the actual loss by a preponderance of the evidence, the
district court “may accept a reasonable estimate of the loss based
on the evidence presented.” Id. (quotation omitted).
Hoover disputes the district court’s loss calculation of
$429,568.09 because the level of his disability has still yet to be
determined. But that fact is irrelevant because the court found that
Hoover essentially committed fraud by misrepresenting his
disability to the VA to obtain benefits, and “any person who
commits fraud forfeits all rights to benefits under all laws
administered by the Department of Veteran Affairs.” 38 C.F.R. §
3.901(b). So even if Hoover had a genuine disability, he forfeited
any right to VA benefits by committing fraud.
The record shows that the district court’s loss calculation
was based on sufficient evidence. The district court relied on
testimony calculating the actual loss from Hoover’s fraud to be
$429,568.09. That calculation was determined by examining the
excess benefits Hoover received from the date of his first
fraudulent disability rating until the VA discovered his fraud and
adjusted his disability rating accordingly. The fact that Hoover’s
true disability was unknown during that time is irrelevant to this
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22-11993 Opinion of the Court 11
calculation because, as stated above, he lost all rights to VA benefits
when he intentionally misrepresented his disability. Thus,
$429,568.09 was a reasonable estimate of the loss based on the
evidence presented, and the district court did not err in its
restitution calculation. See Baldwin, 774 F.3d at 728.
* * *
Hoover has failed to show that the district court erred. The
district court did not improperly deny Hoover’s motion in limine
regarding the phone call because Hoover did not have a reasonable
expectation of privacy. Nor did the court abuse its discretion when
it granted the government’s motion in limine regarding Hoover’s
retaliation claim because Hoover raised this claim too late. And the
district court did not clearly err in its calculation of restitution, or
in its denial of Hoover’s requested reduction based on acceptance
of responsibility. We thus affirm the district court on all of
Hoover’s claims.
AFFIRMED.
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