Rule 29 Specificity as a Gatekeeper: New Emphasis on Plain-Error Review for Unraised Sufficiency/Variance Theories

Case: United States v. Jamar Nattiel, No. 24-10954 (11th Cir. Jan. 5, 2026) (per curiam) (not for publication)

Publication note: The panel designates the decision “NOT FOR PUBLICATION.” Even so, it is a detailed synthesis of Eleventh Circuit doctrine on (i) indictment sufficiency, (ii) double jeopardy under Blockburger v. United States, (iii) lineup admissibility, (iv) Rule 404(b) “other acts” and witness-threat evidence, and—most notably—(v) preservation rules that drive the standard of review for sufficiency and variance arguments following a Rule 29 motion.

1. Introduction

After a ten-day jury trial in the Southern District of Florida, Palacio Valdes Farley, Joassaint Josiah Aristil, Jr., and Jamar Brandon Nattiel were convicted of a single count: conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951(a). The evidence centered on two California robberies (the “Van Nuys robbery” in May 2016 and the “Keane robbery” in December 2017), with an additional Florida robbery (the “Daytona Beach robbery” in April 2017) admitted as Federal Rule of Evidence 404(b) evidence, and a detention-facility threat by Farley against cooperating witness Lisa Flood admitted as consciousness-of-guilt evidence.

On appeal, defendants collectively attacked (1) the indictment’s specificity, (2) Farley’s double jeopardy claim, (3) the Daytona Beach photo lineup, (4) the admission of the Daytona Beach robbery as Rule 404(b) evidence, (5) the admission of Farley’s threat to Flood, and (6) the sufficiency of the evidence via Rule 29 (including a “single vs. multiple conspiracies” theory).

2. Summary of the Opinion

The Eleventh Circuit affirmed all convictions. It held:

Indictment: Sufficient because it tracked § 1951 and added concrete details (timeframe, location, conspirators, targets, means), consistent with United States v. Doak and United States v. Wayerski.
Double jeopardy (Farley): No bar to prosecuting Hobbs Act robbery conspiracy after a prior drug conspiracy conviction; under Blockburger v. United States and United States v. Cannon, each conspiracy requires a distinct “type of agreement.”
Lineups (Daytona Beach): No clear error in finding the photo array not unduly suggestive; alternatively, identifications were reliable under Neil v. Biggers, applying the two-step approach described in United States v. Smith.
Rule 404(b) (Daytona Beach robbery): Properly admitted against Farley for intent/relationship/leadership and survived Rule 403, consistent with United States v. Cenephat and United States v. Edouard; limiting instructions mitigated prejudice.
Rule 404(b) (Farley’s threat): Properly admitted as consciousness of guilt under United States v. Fey and United States v. Gonzalez, with corroboration and repeated limiting instructions.
Rule 29 / single conspiracy: Aristil’s “single vs. multiple conspiracies” argument was reviewed only for plain error because his Rule 29 motion was general and did not raise that specific theory; the court rejected reliance on United States v. Baston and reinforced the line of cases including United States v. Joseph, United States v. Zitron, and United States v. Tovar. On the merits, the evidence supported a single conspiracy under factors stated in United States v. Dixon and United States v. Richardson (532 F.3d 1279).

3. Analysis

3.1. Precedents Cited (and How They Shaped the Result)

A. Indictment sufficiency and “vagueness” challenges

United States v. Doak and United States v. Wayerski: The panel applied the familiar rule that tracking statutory language is enough if it includes the essential elements, especially for conspiracy counts. The opinion also relied on conspiracy-specific flexibility from United States v. Yonn (quoting United States v. Ramos).

B. Double jeopardy for overlapping conspiracies

Blockburger v. United States: The classic “same-elements” test—each offense must require proof of a fact the other does not.
United States v. Cannon: Treated as controlling Eleventh Circuit authority that conspiracy to possess with intent to distribute (21 U.S.C. § 846) and conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)) are distinct because the “agreement” element is different in kind.
United States v. Hano: Used for the elements framing of Hobbs Act robbery conspiracy within the Cannon analysis.

C. Photo lineup admissibility

United States v. Smith and Neil v. Biggers: The court followed the two-step approach: (1) suggestiveness (array size, presentation, photo details), then (2) reliability under totality if needed.
United States v. Daniels: Reinforced the “size/presentation/details” focus for suggestiveness review.

D. Rule 404(b) and Rule 403 balancing

United States v. Cenephat (quoting United States v. Edouard): Supplied the three-part test for other-acts evidence: proper purpose, sufficient proof, and Rule 403.
United States v. Matthews (quoting United States v. Roberts): Used to support the proposition that a not guilty plea places intent “in issue” in conspiracy prosecutions—boosting probative value for other robberies as intent evidence.

E. Witness threats as consciousness-of-guilt evidence

United States v. Fey and United States v. Gonzalez: The panel treated these as establishing that threats against a witness are admissible (via Rule 404(b)) to show consciousness of guilt rather than character.
United States v. Brazel: Supported the sufficiency of proof where a threat is corroborated by another witness (here, a correctional officer).

F. Rule 29 preservation and standards of review (the opinion’s sharpest doctrinal edge)

United States v. Al Jaberi: Stated the governing principle: a sufficiency ground not argued below is reviewed for plain error.
United States v. Zitron, United States v. Joseph, United States v. Straub, and United States v. Hunerlach: The court treated these as the operative Eleventh Circuit line: if a defendant does not articulate the specific sufficiency theory in the Rule 29 motion, appellate review is plain error.
United States v. Baston: The panel rejected Aristil’s reliance on Baston, explaining Baston itself applied plain error to an unraised sufficiency theory and did not adopt a “general Rule 29 preserves all” rule.
United States v. Tovar: The panel invoked Tovar as a recent reaffirmation that the Eleventh Circuit has “never adopted” the rule that a general sufficiency challenge preserves every specific theory for de novo review—and again “decline[d] to do so.”
Related standards cases: United States v. Goldstein, United States v. Lander, and United States v. Wilson were used to articulate default versus plain-error review for variance issues when not preserved.

G. Single vs. multiple conspiracies; material variance; “rimless wheel” doctrine

United States v. Castro and Kotteakos v. United States: Provided the variance framework where the indictment alleges one conspiracy but proof shows multiple.
United States v. Chandler: Used both for the “rimless wheel” description and as an example where volume/complexity created prejudice.
United States v. Dixon and United States v. Richardson (532 F.3d 1279): Supplied the three-factor “single conspiracy” test: common goal, nature of scheme, and overlap of participants; also articulated the prejudice requirement for variance.
United States v. Moore: Used to define “common goal” broadly; the opinion noted Moore was abrogated on other grounds by McDonnell v. United States.
United States v. Seher: Supported using “set patterns and practices” across events to show single conspiracy commonality.
United States v. Anderson, United States v. Taylor, and United States v. Toler: Anchored the “key man”/interdependence reasoning that a central coordinator can unify multiple episodes into a single conspiracy.
Samia v. United States: Cited for the presumption that juries follow limiting instructions—critical to rejecting spillover prejudice claims.
United States v. Davis: Supported the principle that proving a subset (smaller scope) of an alleged conspiracy does not necessarily cause prejudice.

H. Limits on “adopting” co-defendant sufficiency arguments

United States v. Cooper and United States v. Holt: The court treated sufficiency arguments as too individualized to be adopted wholesale by co-defendants who did not brief them.

3.2. Legal Reasoning

A. The indictment: “tracking plus particulars”

The court treated the indictment as comfortably within constitutional bounds because it did more than merely parrot § 1951(a): it identified a time range (May 2016–December 2017), location (“Southern District of Florida, and elsewhere”), all six conspirators by name, targeted property (controlled substances, currency, jewelry, other property), and the means (actual/threatened force, violence, fear). That level of detail also undercut the defendants’ asserted risks of non-unanimity and future double-jeopardy uncertainty.

B. Double jeopardy: distinct “agreements” mean distinct conspiracies

Farley’s double jeopardy challenge failed because the court conceptualized conspiracies by the object of the agreement. Under Blockburger v. United States and United States v. Cannon, a drug-distribution agreement and a robbery agreement are legally different—even if they involve overlapping people or factual background. The panel emphasized that the “distinct type of agreement” is the “fact which the other does not” require.

C. Lineups: suggestiveness is assessed structurally, not by perfect uniformity

The panel accepted the district court’s factual finding that the lineup was fair: six similar-looking bald Black men, no discernible “gold tooth” feature uniquely highlighting Farley, and no suggestive presentation. Importantly, the witnesses’ hesitancy and low confidence did not render the procedure unconstitutional; it went to weight, and, if needed, reliability under Neil v. Biggers.

D. Rule 404(b): other robberies and “intent/relationship/role”

The Daytona Beach robbery was admitted not to show Farley’s propensity for violence, but to show why the charged conspiracy (rob drug traffickers for drugs/valuables) was something Farley intended to do, and how he related to and directed co-conspirators. The court placed heavy weight on two controls: (1) the robbery occurred within the charged conspiracy period, increasing probative value; and (2) repeated limiting instructions, including explicit direction that Aristil and Nattiel were not to be judged on that evidence “at all.”

E. Witness threats: consciousness of guilt with corroboration and limiting instructions

The threat evidence was handled as a classic consciousness-of-guilt inference per United States v. Fey. The district court’s Rule 403 balancing was upheld given timing (recent), corroboration (officer + Flood), high probative value on guilt consciousness, and repeated limiting instructions restricting the inference to Farley.

F. The opinion’s practical rule: a general Rule 29 motion does not preserve every specific sufficiency/variance theory

Aristil’s district-court Rule 29 motion was generic. On appeal, he advanced a specific “multiple conspiracies/variance” theory—arguing the Van Nuys and Keane robberies were separate. The panel treated that mismatch as a preservation failure and applied plain-error review under United States v. Zitron, United States v. Joseph, and reinforced by United States v. Tovar. The opinion is a cautionary guide: to obtain de novo review, defendants must articulate the particular sufficiency defect (e.g., single-conspiracy proof failure) in the Rule 29 motion.

G. Merits: why the evidence supported a single conspiracy anyway

Even under de novo review, the panel concluded the evidence supported a single conspiracy under United States v. Dixon:

Common goal: steal marijuana (and valuables) from traffickers to fuel Farley’s drug selling.
Nature of scheme: both robberies began as purported drug transactions and ended in armed takeovers, coordinated travel/rentals, and delivery of proceeds to Farley.
Overlap/interdependence: Farley was the “key man” linking combinations of participants (per United States v. Anderson), and social/operational ties among participants reinforced unity.

As a backstop, the panel held that even if there were a variance, reversal would require “substantial prejudice” under United States v. Richardson (532 F.3d 1279) and United States v. Edouard, which Aristil could not show—especially given limiting instructions and the compact scope (not the sprawling multi-defendant confusion of Kotteakos v. United States or United States v. Chandler).

3.3. Impact

Trial practice—Rule 29 motions: The decision underscores that a generic Rule 29 motion is strategically risky. Defendants must articulate the specific sufficiency theory they may later want to appeal (e.g., “the government proved multiple conspiracies, not the single one charged,” or “no evidence of agreement/knowledge/participation”) to avoid plain-error review.
Conspiracy charging and proof: The opinion confirms the breadth of “single conspiracy” findings when a “key man” coordinates episodic robberies with overlapping members and a unified objective, reducing the likelihood that episodic crimes will be parsed into separate conspiracies on appeal.
Rule 404(b) and threats: It reflects a permissive approach when the district court (i) identifies a non-propensity theory (intent/relationship/consciousness), (ii) finds adequate proof, (iii) performs Rule 403 balancing, and (iv) issues repeated, targeted limiting instructions.
Lineup challenges: The court’s analysis suggests lineup attacks should focus on concrete structural suggestiveness (unique features, police cues, presentation irregularities), not merely witness uncertainty—because uncertainty typically goes to weight, not admissibility.

4. Complex Concepts Simplified

Hobbs Act robbery conspiracy (18 U.S.C. § 1951(a)): The crime is the agreement to commit robberies affecting commerce. The government need not prove the defendant personally committed every robbery—only that he knowingly joined the agreement and intended to further it.
Rule 404(b) evidence: Evidence of other bad acts cannot be used to argue “he’s the type of person who does this,” but it can be used for specific, non-character reasons—like proving intent, knowledge, identity, relationship, or consciousness of guilt.
Rule 403 balancing: Even relevant evidence can be excluded if its unfair prejudice substantially outweighs probative value. Repeated limiting instructions are a major tool for managing prejudice.
Photo lineup suggestiveness vs. reliability: Courts first ask whether police procedures were unduly suggestive; if so, they ask whether the identification is still reliable under the total circumstances (Neil v. Biggers).
Double jeopardy and the “Blockburger test”: Two prosecutions are usually allowed if each offense requires proof of an element the other does not. Here, the “agreement to rob” differs from the “agreement to distribute drugs.”
Material variance (single vs. multiple conspiracies): A variance occurs when the indictment alleges one conspiracy but proof suggests multiple. Even then, reversal generally requires substantial prejudice—typically surprise or jury confusion/spillover.
Plain error review: A demanding appellate standard applied when the defendant did not properly preserve an issue. It is far harder to win than de novo review.

5. Conclusion

The Eleventh Circuit affirmed all convictions, but the opinion’s most consequential lesson is procedural: a defendant who makes only a generic Rule 29 motion risks forfeiting specific sufficiency and variance theories for anything beyond plain-error review. Substantively, the decision also reinforces that (i) a detailed statute-tracking conspiracy indictment is generally sufficient; (ii) Hobbs Act robbery conspiracy and drug conspiracy remain distinct under Blockburger v. United States and United States v. Cannon; and (iii) well-instructed juries can hear powerful Rule 404(b) and witness-threat evidence when the district court tightly cabins purpose and prejudice.

United States v. Jamar Nattiel (11th Cir. Jan. 5, 2026) — Commentary