United States v. Michael Brian Anderson, 1 F.4th 1244

Background

Michael B. Anderson, owner of Shrimpy’s, Inc., was indicted on four counts of mail fraud, three counts of making false statements, and two counts of money laundering for submitting CDSOA subsidy claims that cumulatively asserted over $24 million in 2005–2007 expenses.
Customs received 47 near‑identical R&R Seafood invoices purporting purchases of 4.7 million pounds of shrimp; investigation showed R&R could not have supplied those quantities and the invoices had multiple indicia of fabrication.
Anderson’s tax returns showed far lower costs; he received about $864,292 in CDSOA payments. Anderson claimed he lawfully purchased frozen shrimp from Robbie Robertson (R&R) and called CBP before increasing claims.
At trial the court, outside the jury, asked Anderson whether he understood his right to testify; he consulted counsel and elected to testify. Defense counsel’s requested CDSOA jury instruction was denied.
Defense’s requested mail‑fraud instruction had omitted any reference to private/commercial carriers; during closing defense noted UPS labels on submissions, the court then supplemented the instruction to include commercial carriers, the prosecutor briefly commented in rebuttal, and the court declined a curative instruction.
After a modified Allen charge the jury convicted on all counts; Anderson appealed arguing (1) interference with right to testify, (2) erroneous refusal of CDSOA instruction, (3) Rule 30(b) violation by amending mail‑fraud instruction after closing, and (4) coercive Allen charge. The Eleventh Circuit affirmed.

Issues

Issue	Gov't Argument	Anderson's Argument	Held
1. Did the court err by asking defendant on‑the‑record whether he waived his right to testify?	A brief neutral colloquy vindicates the right to testify and avoids post‑conviction disputes; it did not intrude on strategy.	The court’s inquiry usurped his personal decision and rendered counsel ineffective.	No error: on‑the‑record confirmation is permissible and did not infringe rights.
2. Did the court abuse discretion by refusing Anderson’s proposed CDSOA jury instruction?	Instruction unnecessary: law that shrimp are raw materials was undisputed and testimony covered the point; defendant could present good‑faith evidence.	Anderson needed the instruction to explain legal entitlement to claim shrimp costs.	No abuse: refusal did not impair Anderson’s defense; issue was factual intent, not entitlement.
3. Did the district court violate Fed. R. Crim. P. 30(b) by amending the mail‑fraud instruction after closing and refusing a curative instruction?	Court substantially complied with Rule 30; supplementation was justified because counsel misstated the law and no prejudice resulted.	Changing instructions after closing surprised and prejudiced the defense and constructively amended the indictment.	No reversible error: supplementation remedied a misstatement, Rule 30 allows such corrections, and Anderson showed no prejudice.
4. Was the modified Allen charge impermissibly coercive (plain‑error review)?	Charge tracked the Eleventh Circuit pattern; deviations were minor and not coercive; jury deliberated further 1.5 hours.	Wording differences and short time to verdict coerced holdouts.	No plain error or abuse: charge was acceptable, not coercive, and circumstances did not show undue pressure.

Key Cases Cited

Rock v. Arkansas, 483 U.S. 44 (1987) (constitutional sources and protection of defendant’s right to testify)
United States v. Teague, 953 F.2d 1525 (11th Cir. 1992) (defendant has personal right to decide whether to testify; ineffective‑assistance vehicle to challenge counsel‑driven exclusion)
United States v. Van De Walker, 141 F.3d 1451 (11th Cir. 1998) (no per se requirement that court conduct a full on‑the‑record waiver colloquy)
United States v. Ly, 646 F.3d 1307 (11th Cir. 2011) (court must correct a pro se defendant’s basic misunderstanding about right to testify)
United States v. Pena, 897 F.2d 1075 (11th Cir. 1990) (Rule 30: court may add or supplement instructions to correct misstatements made in argument; substantial compliance standard)
United States v. Rey, 811 F.2d 1453 (11th Cir. 1987) (Allen charge permissible; pattern instruction approved)
Allen v. United States, 164 U.S. 492 (1896) (authority recognizing jury admonition to continue deliberating)
United States v. Woodard, 531 F.3d 1352 (11th Cir. 2008) (modified Allen charge coercion test—consider language and totality of circumstances)
United States v. Bush, 727 F.3d 1308 (11th Cir. 2013) (approval of pattern modified Allen charge)
United States v. White, 27 F.3d 1531 (11th Cir. 1994) (prejudice inquiry for Rule 30 violations)