The 11th Circuit Board

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How about a pop quiz?

Three of the following colorful characters filled the pages of the Eleventh Circuit’s recent published opinions.  Which did not?

a.  A man on Alabama’s death row authors a pro se § 2254 habeas pleading with more than 1,500 separate claims.

b.  A judge, whose surname is Terry, loses his job after subjecting three law clerks to his self-described “Terry frisks.”  He also imposed “Miranda hugs” in chambers, where he told the women: “I will be held against you in a court of law.”

c.  A juror at a fraud trial walks into the courtroom with his peers to announce the verdict and (surprise!) is wearing a bright green t-shirt with “American Greed” written in bold print.

d.  An NFL assistant coach buys a Christmas gift for each of his five starting offensive lineman: four female blow-up dolls, plus one male blow-up doll for the linemen he and the other players taunt with homophobic jeers.

You’ll find the answer at the very end of the post!  On to the cases.

On the fifth day of a Medicare fraud trial, the jury reaches a verdict and files into the courtroom.  One juror wears a bright t-shirt with the words “American Greed” splashed across the chest.  The t-shirt publicizes a CNBC show of the same name, a show that chronicles white collar crimes and uses the slogan: “Scams, scoundrels, and suckers.”  The jury announces its verdict: guilty.  Defense attorney: He may have lied to the court when he told us in voir dire that he’d be fair and impartial.  May we interview the juror?  District court: No, sir.  The Eleventh Circuit: Ditto.  In United States v. Nerey, the appeals court let this slide: the t-shirt was “perhaps juvenile and impudent,” but did not undermine the jury’s unanimous guilty verdict.  Maybe so, but why not allow defense counsel to question the juror about the t-shirt?  Where’s the harm in that?

American Greed

More drama in the jury room.  In United States v. Oscar, a juror in a drugs-and-guns trial shuts down during deliberations.  Because the other jurors are “biased” and because the system is “bad for a lot of people,” she goes into “defense mode” to protect the man on trial, whom she calls “my people.”  An admirable political statement, maybe, but she was no longer “fair and impartial.”  The court replaced her with an alternate juror.  The Eleventh Circuit affirmed.  Do we spy a double-standard after the American Greed case?  Not really.  True, the pro-prosecution juror got to stay on the jury and the pro-defense juror had to go, but it’s more complicated than that.  Surely a court can excuse a juror who quits deliberating not because she believes the man on trial is innocent, but because she feels a need to protect a guilty man.

When is a federal prisoner competent to waive post-conviction review?  Nearly always.  An Alabama jury sentences Michael Eggers to death. During the decade of appeals that followed, Eggers fires several attorneys so that he may follow his own strategy centered on a “conspiracy” by a California sheriff’s department, the FBI, and organized crime. Eggers files a pleading in which he identifies more than 1,500 “issues” with his conviction (an act which caused our own Jill Benton to write: “I’m pretty sure anywhere north of 500 claims and you’ve crossed the line between habeas practitioner and paranoid schizophrenic). The district court appoints new counsel and all goes swimmingly until the court denies the § 2254 motion. Counsel files a notice of appeal.  Eggers decides he’s had enough, and tries to withdraw the appeal.  The Eleventh Circuit stays the appeal and remands for a competency hearing.  At the hearing (a beauty pageant of experts, really), the district court rejects Eggers’s expert and sides with the state’s expert, who is notorious for flouting scientific best practices.  The district court holds, under the Eleventh Circuit’s test in Lonchar v. Zant, that Eggers’s mental disease does not prevent him from understanding that a waiver of the § 2254 motion will lead to his execution.  In Eggers v. Alabama, the Eleventh Circuit blesses the district court’s path. Eggers is competent (enough) to waive his § 2254 motion.  Practice tip: keep your mentally-ill capital client on the team and avoid waiver with all your might.

A defendant steals victims’ rent checks.  The victims, although they must scramble to cover the rent, all keep their homes.  They borrow money from friends, or delay other bills, or work extra shifts at a job, all to fend off eviction.  Each loses between $400 and $800.  Defendant:  This may be hardship, but it not substantial hardship worthy of the enhancement under U.S.S.G. § 2B1.1(b)(2)(B).  The Eleventh Circuit: Wrong, it is substantial enough.  In United States v. Castaneda-Pozo, the panel channels the eggshell-skull rule taught by torts professors: a victim’s economic frailty is no defense.  Any dollar amount, however small, may be a substantial financial hardship for one victim, “while for another it may be only a minor hiccup.”  This thief’s actions “made his victims insecure in life’s basic necessities—housing, electricity, water, and food.”  That counts as substantial hardship.

A jury hangs on one count, health care fraud conspiracy, but acquits the defendants on a pair of false-statement counts. What happens next? Defendants: The Double Jeopardy Clause bars a retrial on the conspiracy count. District court: No, it does not. The government wins the retrial on the conspiracy count. On appeal, in United States v. Crabtree, the Eleventh Circuit offers a primer on this question: the Double Jeopardy Clause will shield a defendant from a retrial on the hung counts if, but only if, “an issue of ultimate fact has once been determined by a valid and final judgment” and when that very issue “constitutes an essential element of the mistried charge.” Because Oscar’s false statements were “not essential” to the “sweeping” conspiracy count, a retrial is permissible.


And if you are a football fan, check out the TMZ-inspired opinion in Turner v. Wells.  A law firm hired by the NFL publishes a report on the Miami Dolphins’ appalling culture of abuse.  An assistant coach sues for defamation.  The coach (see “d” in our pop quiz) loses the case.  And he loses his job.  But he is now the offensive line coach at Texas A&M.  (What, no background checks in College Station?)  I pray he skipped Christmas this year.

The quiz answer:  b.  I made that one up, although this fictional judge would find a sorry brotherhood with the many federal judges described in last week’s stunning CNN report.

Contributors: Victoria Calvert, Jill Benton, Vionnette Johnson, and Suzanne Hashimi.

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