The 11th Circuit Board

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We begin with the news headlines. President Trump announced on Tuesday that he will nominate Britt Grant to the Eleventh Circuit bench. Judge Grant has been on the Georgia Supreme Court for one year. If confirmed, she will replace Judge Julie Carnes, who announced last month that she will soon take senior status. The Daily Report, as always, published a fine article on this topic. So too did the AJC. The judge is running for election to keep her state supreme court seat (she would be running unopposed), and you’ll find her campaign website here. That campaign will end, of course, if the Senate sends Judge Grant to the Tuttle Building instead. She will be Trump’s third addition to the Eleventh Circuit. One-fourth of the 12 active judges will be Trump nominees.

Judge Britt Grant. Photo by John Disney/Daily Report.

The early Christian church venerated a Belgian nobleman who loved, above all else, to hunt animals. One Good Friday during the Middle Ages, the nobleman skipped church to hunt in the forest, where he witnessed a deer with a crucifix between its antlers. Thus began the religious life of Saint Hubertus, or Saint-Hubert, the patron saint of hunters and mathematicians. The protagonist of United States v. St. Hubert, like his namesake, is a hunter, of sorts. St. Hubert robbed multiple AutoZone stores in South Florida. With a gun. The government charged him with Hobbs Act armed robberies and with § 924(c) gun crimes. St. Hubert filed a motion to dismiss the § 924(c) counts because, he said, Hobbs Act robbery is not a “crime of violence” and, therefore, he cannot be guilty of the § 924(c) counts. The district court denied the motion and St. Hubert pled guilty to a pair of § 924(c) counts only. Question No. 1: When St. Hubert pled guilty to the offenses in the indictment, did he waive for all time his claim that he is innocent of the § 924(c) crimes? A: No. When an indictment affirmatively alleges conduct that is beyond the reach of a statute, that alleged defect is jurisdictional and is not waived by a guilty plea. The Supreme Court said so just two months ago in Class v. United States. (The answer may be different had St. Hubert signed a plea agreement with an appeal waiver.  He did not.)

St. Hubert’s Question No. 2: Do Eleventh Circuit orders denying applications to file successive § 2255 motions count as binding opinions under the prior-panel-precedent rule? A: Yes, these orders—marked by a tell-tale caption that begins with: In re—carry as much weight as formal opinions. This is disappointing news, but the Court has hinted at this rule for many years. Indeed such applications are a poor way for the appeals court to craft binding legal opinions. The applications are usually filed by pro se prisoners, the court rules forbid (yes, forbid) applicants from briefing the legal issues, and the government has no right to respond. In a case of her own, Nicole Kaplan recently filed a petition for rehearing en banc challenging this rule. Stay tuned.

The plot of the Eleventh Circuit’s ACCA jurisprudence twists like a Marvel comic-book serial. The characters change and the plots leap from one storyline to another, but the ending is rarely in doubt. Add one more entry to the lineup: In re Welch. Yes, you guessed it. We have here an order on Welch’s pro se application to file a second or successive § 2255 motion, an application which includes no legal argument whatsoever. See In re St. Hubert, supra. Welch’s path to the Eleventh Circuit started in January 1995 when he carjacked a man after noticing that the man had some cash in his glove compartment. While Welch got away with the money, the carjacking did not go so well—he shot the driver and drove off with the driver’s baby strapped into the back seat. The baby was recovered safe and sound, but the driver of the car suffered a permanent injury, one involving castration, from the gunshot. The police arrested Welch six months later after a shootout with an investigator from the local district attorney’s office. These two events led to a federal conviction. Because Welch had three prior violent felonies, the Armed Career Criminal Act permitted a life sentence on the felon-in-possession charge. The district court enthusiastically imposed that life sentence. Welch challenged here his ACCA sentence through a Johnson claim. The Eleventh Circuit panel affirmed the sentence and held that an Alabama conviction for first-degree robbery fits within the ACCA’s elements clause because the crime “requires force with the intent to overcome physical resistance.” But the question is far closer than the panel lets on. The panel fails to mention here that six weeks earlier, the Ninth Circuit held in United States v. Watson that the very same Alabama crime is not an ACCA violent felony at all. The Welch panel created a circuit split, though it does not say so. Meanwhile, last week, the Supreme Court granted certiorari in Stokeling v. United States (an Eleventh Circuit case on Florida’s similar robbery statute) to measure a circuit split on whether state robbery statutes (like Alabama’s) that merely require “slight force sufficient to overcome a victim’s resistance” meet the ACCA’s threshold: “violent force.” The Eleventh Circuit says yes. But the Supreme Court will soon pass judgment on that view.

In United States v. Angulo, four defendants went to trial charged with a drug conspiracy on the high seas. One of the defendants, Angulo, testified at trial. The others did not. Angulo told the jury that he was merely a cook on the ship, but knew nothing of the cocaine hidden below deck. Following his cross-examination by the government, Angulo called a polygraph examiner to testify that Angulo “was truthful” on questions of guilt or innocence during a pretrial lie-detector test. The three silent defendants argued on appeal that the district court should have severed their trial from Angulo’s. Not so, says the Eleventh Circuit. The co-defendants were not harmed at all and may even have benefitted from an “innocence spillover.” (The guilty verdict after fewer than two hours of deliberations says otherwise.)  Judge Martin authored a concurring opinion. She grudgingly signed the majority opinion, but floated these queries: “When one defendant presents evidence that he passed a polygraph test, surely a juror would be left to wonder: Why is only one defendant giving us evidence of his polygraph test? Did the other defendants refuse to submit to a polygraph test? Did they take one but fail it? A juror could logically infer from all this that the defendants not submitting polygraph evidence must be guilty.”

Judge Beverly B. Martin. Photo by John Disney/ALM 2016

Q: What do the Eleventh Circuit panel in United States v. Vergara and a recidivist have in common? A: They both have at least two priors (or Pryors, if you will).  In Vergara, a cruise-ship passenger entering the international port in Tampa, Florida is for no apparent reason directed to secondary inspection, where officers find three cell phones, including one in his luggage. The agents rummage through the latter phone and spy images of child erotica. Other agents decided (correctly) that these images were not illegal, but they carried out a forensic examination of all three phones anyway. The agents then found illegal child pornography. Vergara, citing Riley v. California, argued the agents required probable cause to examine the phones, but the Eleventh Circuit (well, Judge William Pryor and a visiting judge) said no way. Borders are sacrosanct and officers do not need any form of suspicion to conduct a border search. Judge Jill Pryor, in dissent, predicts the Supreme Court will interpret Riley so that such a search, even at the border, will require a warrant.

Contributors: Millie Dunn, Brian Mendelsohn, Vionnette Johnson, and Jeff Ertel.

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