The 11th Circuit Board

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A short post this week. Easter Weekend. Opening Day. The Final Four. April Fool’s Day. Spring Break. Surprised I am still at my desk. Onward.

Judge Julie Carnes announced this week that in June she will retire from active service on the Eleventh Circuit bench.  But, she tells us, she will “continue to render substantial judicial service as a senior judge.” President Trump will soon have a chance to nominate yet another judge (his third, after Judges Newsom and Branch) to the Eleventh Circuit.

And a pair of recent opinions.

In United States v. Nelson, the Eleventh Circuit asked a novel question: When a trial court recesses for the day while the defendant is on the witness stand, does the Sixth Amendment right to counsel permit him to discuss his testimony with his lawyer during the overnight recess? Answer: Probably. After the jury was excused at the end of the defendant’s first day on the stand, his lawyer asked the district court: “May I speak to [my client] about matters other than his testimony this evening?” The court granted the request, stating, “Yes, anything about the proceeding and so forth, who’s coming, who is not coming, that’s fine, but just not his testimony or his impending testimony.” The attorney responded, “Fine, Your Honor.”  Says our appeal court: While there is no precedent for the question of whether it violates the Sixth Amendment to prevent a defendant from discussing his testimony (but not other topics) during an overnight recess, the answer is probably yes. But here the defendant’s own lawyer proposed that very limitation. The appeals court writes of structural error, invited error, and harmless error but, in the end, holds simply that this defendant cannot show he was deprived of his right to counsel. There is no evidence in the trial record that he or his lawyer intended to discuss his testimony during the recess. Practice tip: Talk freely with your client at a mid-testimony recess and wield the sword of the Sixth Amendment if the court stands in your way.

Keenan Joyner stood next to a parked car. A police officer watched (he says) Joyner hide a handgun beneath the seat of a car, and then run away. But not fast enough. After the officer arrested Joyner and found the gun, Joyner went to trial on a § 922(g) charge.  Joyner said he never put the gun in the car at all, someone else must have done so, and that the cop lied. (Indeed, the DNA on the gun was not Joyner’s.) The government argued actual possession, not constructive possession.  The court instructed the jury only on actual possession (either Joyner held the gun in his hand or he didn’t).  But the jury asked an interesting question: “Does possession imply or not imply possession of the vehicle?” Joyner’s lawyer smartly asked the court to tell the jury that it could not rely on the principle of constructive possession—it may not conclude that Joyner possessed the gun simply because an officer found the gun inside the car. Alas, the district court refused the overture.  In United States v. Joyner, the Eleventh Circuit, too, rejected the proposed instruction.  It was unnecessary because neither party argued constructive possession.

Contributors:  Judy Fleming and Regina Cannon.

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