Invited Error Bars Jury-Instruction Challenges; Untimely PSI Objections Trigger Plain-Error Review—Eleventh Circuit Affirms Enhancements for Perjury and “Business of Receiving Stolen Property”

Invited Error Bars Jury-Instruction Challenges; Untimely PSI Objections Trigger Plain-Error Review—Eleventh Circuit Affirms Enhancements for Perjury and “Business of Receiving Stolen Property”

Introduction

In United States v. Demal Cheeks, No. 23-12906 (11th Cir. Apr. 4, 2025) (per curiam) (unpublished; non-argument calendar), the Eleventh Circuit affirmed two wire-fraud convictions and a 51-month sentence arising from a vehicle-title fraud scheme. The appeal presented three issues:

  • Whether the district court erred in responding to a deliberating jury’s request for “clarification” of the charges;
  • Whether the district court erred in imposing a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 based on allegedly perjurious trial testimony; and
  • Whether the district court erred in imposing a two-level enhancement under U.S.S.G. § 2B1.1(b)(4) for being “in the business of receiving and selling stolen property.”

The opinion is notable for its clear reinforcement of two preservation rules that frequently decide appeals before the merits are reached: the invited-error doctrine for jury-instruction complaints, and the requirement that an appellant challenge every independent ground supporting a district court’s ruling—here, the timeliness of Presentence Investigation Report (PSI) objections under Federal Rule of Criminal Procedure 32(f)(1). The court also applied plain-error review to uphold both sentencing enhancements, offering practical guidance on what suffices for a “perjury” finding under § 3C1.1 and how courts assess whether a defendant was “in the business” of dealing in stolen property under § 2B1.1(b)(4).

Case Background and Procedural Posture

Demal Cheeks was indicted on one count of conspiracy to commit wire fraud, 18 U.S.C. § 1349 (Count 1), and two substantive counts of wire fraud, 18 U.S.C. § 1343 (Counts 2 and 3), tied to a scheme to secure titles to stolen vehicles through fraudulent paperwork. He pleaded not guilty and went to trial, testifying in his own defense.

During deliberations, the jury asked for “clarification of Demal Cheeks’ charges.” After conferring with counsel, the court told the jury to “rely on the jury instructions as written”—a response defense counsel affirmatively endorsed. The jury acquitted on Count 1 (conspiracy) but convicted on Counts 2 and 3 (wire fraud).

The probation office’s PSI recommended, among other things, two two-level enhancements:

  • U.S.S.G. § 3C1.1 (obstruction of justice), based on trial testimony denying Mr. Cheeks signed fraudulent title documents; and
  • U.S.S.G. § 2B1.1(b)(4) (in the business of receiving/selling stolen property).

The PSI calculated a total offense level of 23, yielding an advisory range of 46–57 months. Neither party lodged written PSI objections. In a sentencing memorandum, Mr. Cheeks sought a downward variance but did not dispute the PSI’s factual findings or guideline calculations. At the hearing, he orally objected to the two enhancements. The district court overruled both objections as untimely under Rule 32(f)(1) and—alternatively—on the merits, then imposed a 51-month sentence and three years of supervised release.

Summary of the Eleventh Circuit’s Decision

The Eleventh Circuit affirmed across the board:

  • Jury-instruction issue: Review barred by the invited-error doctrine because defense counsel agreed to the response directing jurors to rely on instructions as given.
  • PSI objections: Because the district court relied on two independent grounds—untimeliness and merits—and the appellant did not challenge the timeliness ruling on appeal, the issue was abandoned under Sapuppo. The court accordingly reviewed the enhancements only for plain error and found none.
  • § 3C1.1 (perjury): No plain error. Although the district court imprecisely suggested falsity alone would suffice, the record supported a general perjury finding under Dunnigan, and the defense had not requested particularized findings.
  • § 2B1.1(b)(4) (“in the business”): No plain error. Evidence that Mr. Cheeks participated in selling at least five stolen vehicles, personally used three others, and had prior theft-related convictions supported the enhancement under the guideline commentary factors.

Analysis

Precedents Cited and How They Shaped the Decision

  • Invited error—United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005): If a party expressly agrees to a jury instruction or response, any error is “invited” and unreviewable. Here, defense counsel endorsed telling jurors to rely on the instructions “as written,” foreclosing appellate review of the alleged need for further clarification.
  • Abandonment where multiple independent grounds—Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014): When a district court gives multiple, independent reasons for a ruling, an appellant must attack each; failure to challenge one ground abandons the claim. Because the district court overruled the PSI objections as untimely and on the merits, and Mr. Cheeks did not challenge untimeliness on appeal, appellate merits review was forfeited.
  • Timeliness of PSI objections—Fed. R. Crim. P. 32(f)(1): Parties have 14 days after receiving the PSI to submit written objections. The district court’s enforcement of this deadline is reviewed for abuse of discretion. See United States v. Edouard, 485 F.3d 1324, 1351 (11th Cir. 2007).
  • Addressing merits does not cure untimeliness—United States v. Milian-Rodriguez, 828 F.2d 679, 683 (11th Cir. 1987): A district court’s alternative discussion of the merits does not excuse an untimely objection unless the court indicates it will decide solely on the merits.
  • Plain-error review when no timely objection—United States v. Aguilar-Ibarra, 740 F.3d 587, 591–92 (11th Cir. 2014): Treat the matter as if no objection was made and apply plain error. See also United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009) (plain-error elements).
  • Perjury enhancement elements—United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002): Perjury requires oath, falsity, materiality, and willful intent to provide false testimony (not mistake, confusion, or faulty memory). This tracks U.S.S.G. § 3C1.1, comment 4(B), which lists perjury as obstruction.
  • General perjury finding may suffice—United States v. Dunnigan, 507 U.S. 87, 94–95 (1993); United States v. Lewis, 115 F.3d 1531, 1538 (11th Cir. 1997): District courts should address each perjury element, but a general finding is sufficient if it necessarily encompasses all elements and the record clearly supports them. United States v. Feldman, 931 F.3d 1245, 1263 (11th Cir. 2019), emphasizes the “clearly reflects” requirement.
  • Eleventh Circuit applications—United States v. Dobbs, 11 F.3d 152, 155 (11th Cir. 1994): A general finding that the defendant “did indeed perjure himself,” supported by the jury’s guilty verdict, sufficed for § 3C1.1. See also non-precedential but persuasive applications: United States v. Miranda, 774 F. App’x 525, 528–29 (11th Cir. 2019) and United States v. Alvarado, 449 F. App’x 835, 841 (11th Cir. 2011).
  • Need to request particularized findings—United States v. Hubert, 138 F.3d 912, 915 (11th Cir. 1998); United States v. Geffrard, 87 F.3d 448, 453 (11th Cir. 1996): Defendants who fail to request more specific perjury findings at sentencing cannot later complain about the lack of them.
  • “Business of receiving stolen property” factors—U.S.S.G. § 2B1.1(b)(4) & cmt. 5: Courts consider (A) regularity and sophistication; (B) value/size of inventory; (C) extent of encouragement/facilitation of other crimes; and (D) past activities involving stolen property.

Legal Reasoning

1) Invited Error Precludes Review of the Jury-Instruction Complaint

The jury asked for “clarification” of the charges. The district court solicited input. Defense counsel agreed the jury should be told to “rely on the jury instructions as written.” On appeal, Mr. Cheeks argued the court should have clarified the instructions. Under Silvestri, this is a textbook invited error: counsel endorsed the very course now challenged. Invited errors are not reviewed—no plain-error backdoor, no harmless-error analysis. The claim ended there.

2) PSI Objections: Abandonment of Timeliness Challenge Invokes Plain-Error Review

The district court rejected both PSI objections as untimely under Rule 32(f)(1) and, alternatively, on the merits. The appellant’s brief did not contest the timeliness ruling. Under Sapuppo, a litigant must dismantle each independent basis supporting the judgment; failure to attack one basis (timeliness) abandons the entire claim. Further, per Milian-Rodriguez, the district court’s willingness to also address the merits did not waive or cure the untimeliness. The Eleventh Circuit thus treated the case as if no objections were made and applied plain-error review to both enhancements.

3) § 3C1.1 Obstruction of Justice (Perjury): No Plain Error

The perjury enhancement was grounded in Mr. Cheeks’ sworn testimony that he did not sign fraudulent title documents. The district court concluded the jury “rejected” his testimony and—imprecisely—stated that providing “false testimony” sufficed for the enhancement. The Eleventh Circuit flagged that statement as an incorrect articulation of the test: perjury requires willfulness, not mere falsity. But under plain-error review, the court affirmed because:

  • The testimony was under oath and material—both uncontested.
  • The court effectively found falsity by noting the jury rejected defendant’s testimony tied to the core issues of guilt.
  • Although the court did not explicitly find willfulness, Eleventh Circuit precedent permits a general perjury finding if the record clearly reflects willfulness, falsity, and materiality and supports each element. Dunnigan; Lewis; Feldman.
  • Dobbs supports treating a general finding—especially where the jury’s verdict contradicts the defendant’s testimony—as sufficient to sustain a § 3C1.1 enhancement.
  • Defense counsel did not request particularized Dunnigan findings, which undermines any claim of error in the level of specificity. Hubert; Geffrard.

Against this backdrop, and without controlling precedent holding that the district court’s phrasing constitutes plain error, the enhancement stood.

4) § 2B1.1(b)(4) “In the Business of Receiving and Selling Stolen Property”: No Plain Error

The appellant argued the enhancement was inapt because the indictment alleged only two wire-fraud transactions; he kept no “inventory” and was not engaged in a regular or sophisticated enterprise. The Eleventh Circuit affirmed the enhancement under plain-error review, pointing to the district court’s reliance on:

  • Participation—with his wife and a neighbor—in the sale of at least five stolen vehicles;
  • Personal use of three additional stolen vehicles; and
  • Prior convictions for vehicle-title fraud, three counts of grand theft, and strong-arm robbery.

These facts track § 2B1.1 cmt. 5’s factors. Notably, the court emphasized that the district court did not rely on the conspiracy count of acquittal. And the appellant cited no precedent demonstrating that application of § 2B1.1(b)(4) on such a record would be plain error. The enhancement therefore survived.

Impact and Practical Significance

  • Error preservation takes center stage. The decision underscores the unforgiving nature of invited error and Sapuppo abandonment. Appellate courts will not rescue a litigant from strategic choices (e.g., agreeing to an instruction response) or from failure to challenge all independent grounds (e.g., timeliness) on appeal.
  • PSI objections must be made in writing and on time. Rule 32(f)(1)’s 14-day deadline is enforced, and an alternative merits ruling does not forgive untimeliness. Defense counsel should move for leave to file late objections and obtain an explicit ruling excusing the deadline if necessary.
  • Perjury enhancements: ask for Dunnigan findings. Although the Eleventh Circuit approved a general finding here, it reiterated that separate findings are “preferable.” Defense counsel contesting § 3C1.1 should request express findings on falsity, materiality, and willfulness and identify specific allegedly perjurious statements—both to preserve error and to sharpen appellate review.
  • “Business of receiving stolen property” is fact-intensive and flexible. The enhancement does not require warehouse-like inventory or formal trappings of a business. A pattern across multiple items, collaboration with others, and prior theft-related conduct can satisfy the commentary factors. The court’s reliance on prior convictions and on conduct beyond the counts of conviction reflects the Guidelines’ relevant-conduct approach at sentencing.
  • Unpublished but instructive. Though designated “Do Not Publish,” the opinion applies well-settled Eleventh Circuit principles and offers a pragmatic roadmap for trial and appellate strategy involving jury notes, PSI objections, and common fraud-related enhancements.

Complex Concepts Simplified

  • Invited error vs. forfeiture: Invited error occurs when a party affirmatively endorses the very ruling later challenged; it is unreviewable. Forfeiture is a failure to object; it typically triggers plain-error review.
  • Plain-error review: The appellant must show (1) error; (2) that is plain (clear or obvious); (3) that affected substantial rights (prejudicial); and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. It is a demanding standard.
  • Perjury under § 3C1.1: Not every inconsistency is perjury. The government (or court) must show sworn testimony was false, material, and willfully false—not a product of confusion or faulty memory.
  • PSI objections under Rule 32(f)(1): Parties must file written objections within 14 days of receiving the PSI. Late objections can be rejected, and even if a court discusses the merits, the lateness may still bar appellate relief unless excused.
  • “In the business” of receiving/selling stolen property (§ 2B1.1(b)(4)): Courts look to regularity, sophistication, scale, facilitation of other crimes, and past activities. A repeated pattern with multiple items and collaborators may suffice even absent a formal inventory.
  • “Cleaned up” in citations: A parenthetical indicating that internal quotation marks, citations, or formatting alterations have been omitted for readability.
  • Non-Argument Calendar / Unpublished: The case was decided without oral argument and designated not for publication, meaning it is not binding precedent but may be persuasive.

Practice Pointers

  • When a jury sends a note, preserve options. If clarification could help, do not consent wholesale to “rely on instructions as written.” Propose precise, neutral clarifications. Otherwise, the invited-error doctrine will block review.
  • File PSI objections on time and in writing. If more time is needed, move for an extension or for leave to file late. Build a record explaining good cause for delay. If the court addresses the merits, ask it to state expressly that it is excusing the deadline and deciding on the merits.
  • Perjury enhancement defense strategy. Identify specific statements the government claims are perjurious; argue lack of willfulness (confusion, memory). Request explicit Dunnigan findings on each element. If the court’s findings are insufficient, object and ask for supplementation before sentencing concludes.
  • Contesting § 2B1.1(b)(4): Develop affirmative evidence negating “regularity” and “sophistication,” the existence of any “inventory,” and the extent to which conduct encouraged other crimes. Distinguish sporadic, opportunistic acts from an ongoing business. Address prior convictions proactively.
  • On appeal, attack every independent ground. If a district court rests on timeliness and the merits, challenge both. Failure to do so can forfeit meaningful review.

What the Court Did Not Decide

  • The optimal response to the jury’s note. Because the claim was invited error, the panel did not evaluate whether additional clarification would have been appropriate or necessary under the circumstances.
  • The precise boundary of “business of receiving stolen property.” The court applied plain-error review and did not articulate a comprehensive standard; it relied on the guideline commentary factors and the particular pattern here.
  • Harmlessness of any misstatement on perjury elements. The court recognized the district court’s imprecise statement but resolved the issue at the plain-error step without deciding whether the same record would compel affirmance under a preserved objection.

Conclusion

United States v. Cheeks is less about breaking new ground and more about disciplined application of preservation doctrines that often determine appellate outcomes. The Eleventh Circuit:

  • Applied the invited-error doctrine to foreclose a complaint about the court’s response to a jury note that defense counsel endorsed;
  • Reaffirmed that failing to challenge all independent grounds—here, untimeliness under Rule 32(f)(1)—abandons appellate review of PSI objections; and
  • Under plain-error review, upheld a § 3C1.1 perjury enhancement supported by a general finding and the trial record, and a § 2B1.1(b)(4) enhancement supported by repeated dealings in stolen vehicles and prior theft-related convictions.

The central takeaways are practical: preserve objections early and specifically; avoid inviting error; request detailed Dunnigan findings when § 3C1.1 is in play; and recognize that the “in the business” enhancement under § 2B1.1(b)(4) turns on a holistic assessment of repeated conduct and past activities, not just the number of charged counts. Even as an unpublished decision, Cheeks offers a clear procedural roadmap that will influence how counsel litigate jury notes and sentencing objections in the Eleventh Circuit.

Key Citations

  • United States v. Silvestri, 409 F.3d 1311 (11th Cir. 2005) (invited error)
  • Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (independent grounds; abandonment)
  • Fed. R. Crim. P. 32(f)(1) (PSI objections within 14 days)
  • United States v. Milian-Rodriguez, 828 F.2d 679 (11th Cir. 1987) (merits discussion does not excuse untimeliness)
  • United States v. Aguilar-Ibarra, 740 F.3d 587 (11th Cir. 2014) (plain-error posture when no timely objection)
  • United States v. Beckles, 565 F.3d 832 (11th Cir. 2009) (plain-error standard)
  • United States v. Singh, 291 F.3d 756 (11th Cir. 2002) (perjury elements)
  • United States v. Dunnigan, 507 U.S. 87 (1993); United States v. Lewis, 115 F.3d 1531 (11th Cir. 1997); United States v. Feldman, 931 F.3d 1245 (11th Cir. 2019) (findings for § 3C1.1)
  • United States v. Dobbs, 11 F.3d 152 (11th Cir. 1994) (general finding sufficient)
  • United States v. Hubert, 138 F.3d 912 (11th Cir. 1998); United States v. Geffrard, 87 F.3d 448 (11th Cir. 1996) (request particularized findings)
  • U.S.S.G. § 3C1.1 & cmt. 4(B) (perjury); § 2B1.1(b)(4) & cmt. 5 (business of receiving/selling stolen property)

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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