The 11th Circuit Board

The Eleventh Circuit is really two appeals courts in one, divided by a DMZ, a gulf of world views that grows wider by the day. In more and more panel opinions, the fate of an appellant rests less upon the strength of his arguments, and more upon the random draw judges. The philosophical divide among the dozen judges is not so much a spectrum of views smoothly flowing from right to left, but a bar bell, with a clump of conservative judges on one end of the bar and another set of progressive judges on the far end, with no one in between.

The en banc opinion in United States v. Vail-Bailon illuminates this metaphor just so.  In a vote of 6-5, the right-leaning bloc (Judges Julie Carnes, Tjoflat, Hull, Marcus, Ed Carnes, and William Pryor) prevailed over the left-tilting bloc (Judges Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor).  Does a Florida felony battery conviction fit within the elements clause of U.S.S.G. § 2L1.2’s crime of violence definition? Last year, Vail-Bailon’s panel said no. But the en banc court performed a volte-face said yes. Under the Florida statute, a person commits battery when he “(a) actually and intentionally touches or strikes another person against the will of the other; and (b) causes great bodily harm, permanent disability, or permanent disfigurement.” The original panel (and the dissent here) emphasize that the crime—which may be accomplished merely by an intentional touching, however slight, and an unintended serious injury—does not involve the requisite use of “violent force” proclaimed by the Supreme Court in Leocal v. Ashcroft (2004) and Curtis Johnson v. United States (2010). The majority, led by Judge Julie Carnes’s prose concluded that the Leocal/Johnson inquiry does not ask whether an actor intended to cause injury to another person.  Who cares whether the actor intended to harm the victim? Did he intend to touch or strike the victim in a way that was capable of harming him? This so-called “capability” test does not swallow the rule of Johnson. On the contrary, under the Florida statute, the touching must necessarily have caused harm, so the touch ipso facto is a violent force. But what if the touching is a tap on the shoulder that startles a victim, who falls down the stairs? The majority opinion brushes away the question by canvassing Florida appellate opinions, opinions which proclaim that greater force than these imaginative hypotheticals is required to support a felony battery conviction. In dissent, Judge Wilson argues that the harm that befalls a victim is irrelevant; we must ask only whether the actor used Johnson’s requisites: a “substantial degree” of force defined by “strong physical power.” He accuses the majority of conjuring its “capability” test by “plucking one sentence from the opinion and then interpreting that sentence in isolation.” Judge Rosenbaum’s dissent offered a lethal exposition on the Supreme Court’s opinions in Leocal, Castleman, and Voisine, all of which support her views in the original panel opinion.

Max Jeri was arrested at the Miami airport because agents found eight kilograms of cocaine hidden in his luggage.  He told the agents he was as surprised as they were, and knew nothing of the cocaine.  On the morning of trial, the government suddenly produced a video from a TV show filmed at the airport and showing Jeri’s luggage and the cocaine after the search had been conducted.  Jeri beseeched the court for a continuance.  The court refused, and Jeri and his counsel were able to watch the video only at the end of the first day of a day-and-a-half trial, and after the government called its first five witnesses.  Did the court err in blundering ahead with trial over Jeri’s protestations?  Not really.  But only because this video, shot only after the agents had completed the search of the luggage, did not help Jeri’s defense.  Alas, we will never know if this is true—Jeri and his lawyer were denied an opportunity to make any use of the video at all.  The panel, however, scolded the district court, and offered a rousing speech in favor of continuances: “[A] scheduled trial date should never become such an overarching end that it results in the erosion of the defendant’s right to a fair trial. . . .  The costs attendant to a continuance were low, but the potential risk to the defendant was real.”  In the end, for Jeri at least, the panel’s actions (in excusing the district court’s sins) spoke far louder than its words.

Does the Second Amendment prevent the government from prosecuting a defendant for dealing in firearms without a federal firearms license?  No, said the panel in United States v. Focia.  Good news: the Eleventh Circuit eviscerated a constitutional attack based on the Second Amendment.  The panel wrote that the crime defined in 18 U.S.C. § 922(a) did not substantially burden a defendant’s Second Amendment rights, and the First Amendment prior-restraint doctrine does not translate to the Second Amendment.  More good news: the panel held that its own pattern instruction defining the crime should have (and must now) include all language from § 921(a)(21)(C), which provides that a person does not violate § 922(a) if he makes occasional sales or exchanges of firearms for the enhancement of a personal collection “or for a hobby.”

The Eleventh Circuit continues to ride the waves of lethal-injection litigation in Alabama capital cases.  In Grayson v. Warden, a group of four death row prisoners filed complaints under 42 U.S.C. § 1983, seeking to enjoin the Alabama Department of Corrections from carrying out their executions using the existing protocol.  The argued that the protocol violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  The prisoners alleged that that first drug in the protocol, midazolam, would create the sustained state of anesthesia necessary to allow them to withstand the immense pain generated by the next two injections.  The Eleventh Circuit vacated the district court’s grant of summary judgment because there are genuine issues of material fact about the prisoners’ risk of severe pain from the midazolam and about their proffered alternative methods of execution.  The court also rejected the state’s law-of-the-case shield because prior actions challenging Alabama’s protocol were not at all the “same case.”  In West v. Warden, the same panel offered a few variations on Grayson’s themes. Another group of Alabama prisoners also filed a § 1983 action against the protocol.  The panel reversed the district court’s order granting the state’s Rule 12(b)(6) motion because the “general challenge” to Alabama’s lethal-injection protocol, begun in 2002, was time-barred.  Not so, said the panel in West.  This was not a “general challenge,” but rather a specific challenge to the amended protocol (dated 2014) and its use of midazolam.  Thus, the complaint arrived safely within the two-year limitations period.

Judicial opinions make strange bedfellows.  In United States v. Masino, Judge William Pryor, writing for the panel, rejected an appeal based on a close reading of the federal illegal gambling statute.  The outcome rested on a familiar verb, and Judge Pryor chose to pitch the issue with these words: “Answering this question depends on what the meaning of the word ‘is’ is.”  Alas, Judge Pryor provided neither citation nor attribution for this famous phrase.  That may be because the author of this legal word game, who asked precisely the same question in his deposition testimony about Monica Lewinsky, was then-President Bill Clinton.

Contributors: Tom Hawker (Vail-Bailon); Rick Holcomb (Jeri);  Rebecca Shepard (Focia); Monet Brewerton (Grayson); and Bo King (West).