USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14071 Non-Argument Calendar ________________________
D.C. Docket No. 8:14-cr-00512-SCB-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BROCK LOVELACE,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(January 19, 2021)
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.
PER CURIAM: USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 2 of 6
David Brock Lovelace, a federal prisoner proceeding pro se, appeals his
convictions for conspiring to pay health care kickbacks, in violation of 18 U.S.C. §
371 and 42 U.S.C. § 1320a-7b(b)(2)(A), and for structuring to avoid reporting
requirements, in violation of 31 U.S.C. § 5324(a)(3). On appeal, Lovelace argues
that (1) certain testimony admitted during trial in the instant case “opened the door”
to rebut the grand jury’s finding of probable cause in a prior criminal case against
him, and (2) the government violated his Fifth Amendment due process rights in that
case by engaging in outrageous misconduct to establish probable cause. The
government, in response, argues that Lovelace cannot challenge the grand jury’s
indictment in a separate case and that his subsequent convictions at trial cured any
grand jury errors.
We ordinarily review de novo whether the government’s investigatory
techniques constituted outrageous government conduct. United States v. Augustin,
661 F.3d 1105, 1122 (11th Cir. 2011). “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The courts of appeals have jurisdiction over “appeals from all final decisions
of the district courts of the United States.” 28 U.S.C. § 1291. The final judgment
rule requires a party to “raise all claims of error in a single appeal following final
judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
2 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 3 of 6
(1981). Under the law-of-the-case doctrine, however, “an issue decided at one stage
of a case is binding at later stages of the same case.” United States v.
Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997). Indeed, the doctrine
precludes a court from revisiting an issue that was decided in a prior appeal. Thomas
v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009). There are three exceptions
to the law-of-the-case doctrine: (1) the existence of new evidence; (2) an intervening
change in controlling law that dictates a different result; or (3) where the prior
decision is clearly erroneous and its implementation would cause manifest injustice.
United States v. Anderson, 772 F.3d 662, 668–69 (11th Cir. 2014). Although
law-of-the-case doctrine is not jurisdictional, the district court may raise it sua
sponte. Id. at 669. And the law-of-the-case doctrine does not bar a court from
considering arguments that could have been raised previously but were not. Thomas,
572 F.3d at 1304.
Absent a strong showing to the contrary, the law presumes that a grand jury
acts within the legitimate scope of its authority. United States v. Alred, 144 F.3d
1405, 1413 (11th Cir. 1998). “The grand jury gets to say—without any review,
oversight, or second-guessing—whether probable cause exists to think that a person
committed a crime.” Kaley v. United States, 571 U.S. 320, 328 (2014). “‘[T]he
whole history of the grand jury institution’ demonstrates that ‘a challenge to the
reliability or competence of the evidence’ supporting a grand jury’s finding of
3 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 4 of 6
probable cause ‘will not be heard.’” Id. (quoting United States v. Williams, 504 U.S.
36, 54 (1992)). Thus, we generally will not consider challenges to the evidence
presented in a grand jury proceeding. Id. “[A]lthough the grand jury ‘may not itself
violate a valid privilege,’ it may consider incompetent evidence as well as evidence
obtained in violation of the Fourth Amendment.” In re Grand Jury Proceedings,
142 F.3d 1416, 1425 (11th Cir. 1998) (footnote and citation omitted) (quoting United
States v. Calandra, 414 U.S. 338, 346 (1974)). In other words, the character of the
evidence considered by a grand jury does not affect the validity of an indictment. Id.
Nor will a court dismiss an indictment merely because the grand jury based its
decision to indict on evidence that would be inadmissible at trial. See id. To do so
would infringe upon the grand jury’s independence. See Costello v. United States,
350 U.S. 359, 363 (1956) (“An indictment returned by a legally constituted and
unbiased grand jury, like an information drawn by the prosecutor, if valid on its face,
is enough to call for trial of the charge on the merits.” (footnote omitted)); United
States v. Brown, 872 F.2d 385, 388 (11th Cir. 1989) (same). Moreover, “the petit
jury’s subsequent guilty verdict means not only that probable cause existed to
believe that the appellant was guilty as charged, but also that he was in fact guilty
beyond a reasonable doubt,” United States v. Roggio, 863 F.2d 41, 43 (11th Cir.
1989), and that any alleged misconduct before the grand jury was harmless, United
States v. Flanders, 752 F.3d 1317, 1333 (11th Cir. 2014).
4 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 5 of 6
Thus, a court may dismiss an indictment based on the violation of a
defendant’s Fifth Amendment grand jury right only if the defendant can show that
he was prejudiced by the violation. Bank of N.S. v. United States, 487 U.S. 250, 254
(1988). To violate the Fifth Amendment’s Due Process Clause, law enforcement
conduct must be “so outrageous that it is fundamentally unfair and ‘shocking to the
universal sense of justice.’” United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.
1987) (quoting United States v. Russell, 411 U.S.
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USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14071 Non-Argument Calendar ________________________
D.C. Docket No. 8:14-cr-00512-SCB-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BROCK LOVELACE,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(January 19, 2021)
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.
PER CURIAM: USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 2 of 6
David Brock Lovelace, a federal prisoner proceeding pro se, appeals his
convictions for conspiring to pay health care kickbacks, in violation of 18 U.S.C. §
371 and 42 U.S.C. § 1320a-7b(b)(2)(A), and for structuring to avoid reporting
requirements, in violation of 31 U.S.C. § 5324(a)(3). On appeal, Lovelace argues
that (1) certain testimony admitted during trial in the instant case “opened the door”
to rebut the grand jury’s finding of probable cause in a prior criminal case against
him, and (2) the government violated his Fifth Amendment due process rights in that
case by engaging in outrageous misconduct to establish probable cause. The
government, in response, argues that Lovelace cannot challenge the grand jury’s
indictment in a separate case and that his subsequent convictions at trial cured any
grand jury errors.
We ordinarily review de novo whether the government’s investigatory
techniques constituted outrageous government conduct. United States v. Augustin,
661 F.3d 1105, 1122 (11th Cir. 2011). “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The courts of appeals have jurisdiction over “appeals from all final decisions
of the district courts of the United States.” 28 U.S.C. § 1291. The final judgment
rule requires a party to “raise all claims of error in a single appeal following final
judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
2 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 3 of 6
(1981). Under the law-of-the-case doctrine, however, “an issue decided at one stage
of a case is binding at later stages of the same case.” United States v.
Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997). Indeed, the doctrine
precludes a court from revisiting an issue that was decided in a prior appeal. Thomas
v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009). There are three exceptions
to the law-of-the-case doctrine: (1) the existence of new evidence; (2) an intervening
change in controlling law that dictates a different result; or (3) where the prior
decision is clearly erroneous and its implementation would cause manifest injustice.
United States v. Anderson, 772 F.3d 662, 668–69 (11th Cir. 2014). Although
law-of-the-case doctrine is not jurisdictional, the district court may raise it sua
sponte. Id. at 669. And the law-of-the-case doctrine does not bar a court from
considering arguments that could have been raised previously but were not. Thomas,
572 F.3d at 1304.
Absent a strong showing to the contrary, the law presumes that a grand jury
acts within the legitimate scope of its authority. United States v. Alred, 144 F.3d
1405, 1413 (11th Cir. 1998). “The grand jury gets to say—without any review,
oversight, or second-guessing—whether probable cause exists to think that a person
committed a crime.” Kaley v. United States, 571 U.S. 320, 328 (2014). “‘[T]he
whole history of the grand jury institution’ demonstrates that ‘a challenge to the
reliability or competence of the evidence’ supporting a grand jury’s finding of
3 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 4 of 6
probable cause ‘will not be heard.’” Id. (quoting United States v. Williams, 504 U.S.
36, 54 (1992)). Thus, we generally will not consider challenges to the evidence
presented in a grand jury proceeding. Id. “[A]lthough the grand jury ‘may not itself
violate a valid privilege,’ it may consider incompetent evidence as well as evidence
obtained in violation of the Fourth Amendment.” In re Grand Jury Proceedings,
142 F.3d 1416, 1425 (11th Cir. 1998) (footnote and citation omitted) (quoting United
States v. Calandra, 414 U.S. 338, 346 (1974)). In other words, the character of the
evidence considered by a grand jury does not affect the validity of an indictment. Id.
Nor will a court dismiss an indictment merely because the grand jury based its
decision to indict on evidence that would be inadmissible at trial. See id. To do so
would infringe upon the grand jury’s independence. See Costello v. United States,
350 U.S. 359, 363 (1956) (“An indictment returned by a legally constituted and
unbiased grand jury, like an information drawn by the prosecutor, if valid on its face,
is enough to call for trial of the charge on the merits.” (footnote omitted)); United
States v. Brown, 872 F.2d 385, 388 (11th Cir. 1989) (same). Moreover, “the petit
jury’s subsequent guilty verdict means not only that probable cause existed to
believe that the appellant was guilty as charged, but also that he was in fact guilty
beyond a reasonable doubt,” United States v. Roggio, 863 F.2d 41, 43 (11th Cir.
1989), and that any alleged misconduct before the grand jury was harmless, United
States v. Flanders, 752 F.3d 1317, 1333 (11th Cir. 2014).
4 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 5 of 6
Thus, a court may dismiss an indictment based on the violation of a
defendant’s Fifth Amendment grand jury right only if the defendant can show that
he was prejudiced by the violation. Bank of N.S. v. United States, 487 U.S. 250, 254
(1988). To violate the Fifth Amendment’s Due Process Clause, law enforcement
conduct must be “so outrageous that it is fundamentally unfair and ‘shocking to the
universal sense of justice.’” United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.
1987) (quoting United States v. Russell, 411 U.S. 423, 432 (1973)). “Whether
outrageous governmental conduct exists ‘turns upon the totality of the circumstances
with no single factor controlling[,]’ and the defense ‘can only be invoked in the rarest
and most outrageous circumstances.’” United States v. Haimowitz, 725 F.2d 1561,
1577 (11th Cir. 1984) (quoting United States v. Tobias, 662 F.2d 381, 387 (5th Cir.
1981)). On several occasions, we have recognized that such a defense might exist,
but neither the Supreme Court nor this Court have decided a case in which
outrageous governmental conduct has been established. See United States v.
Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007) (holding that the government’s
conduct was not outrageous where the defendant challenged his conviction for
possessing a firearm by arguing that the government provided him with a firearm
equipped with a silencer that he could not see); United States v. Sanchez, 138 F.3d
1410, 1414 (11th Cir. 1998) (finding no outrageous governmental conduct where the
government created a reverse sting operation and the defendants agreed to invade a
5 USCA11 Case: 19-14071 Date Filed: 01/19/2021 Page: 6 of 6
home and steal drugs). Indeed, we have subsequently noted that this Court has
“never acknowledged the existence of the outrageous government conduct doctrine,”
instead only discussing it in dicta. See United States v. Jayyousi, 657 F.3d 1085,
1111 (11th Cir. 2011).
Here, trial testimony did not “open the door” for Lovelace to challenge the
grand jury’s indictment in another separate case, and the jury’s convictions in both
that case and this one prevented him from attacking either indictment. Additionally,
to the extent this Court has jurisdiction to consider Lovelace’s arguments, the law-
of-the-case doctrine bars him from raising the same arguments that he asserted and
we rejected in that prior case. Regardless, the government did not violate Lovelace’s
Fifth Amendment due process rights because it did not engage in any conduct that
was both so outrageous that it was fundamentally unfair and prejudicial to Lovelace.
Accordingly, we affirm Lovelace’s convictions.
AFFIRMED.