The 11th Circuit Board

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The city of Opa-Locka, Florida, occupies four square miles of land in Miami-Dade County. The city planners carried out a One Thousand and One Nights theme. The city of 15,000 residents houses the largest collection of Moorish architecture in the Western Hemisphere. The city is two-thirds African-American, and also includes high numbers of Cubans, Haitians, Jamaicans, and Nicaraguans. Opa-Locka was the first city in the country to commemorate President Obama when it renamed its main boulevard: Barack Obama Avenue. But the city has fallen on hard times. Corruption is high and the city is bankrupt. By 2004, the city had the highest rate of violent crime in the nation. And now the Eleventh Circuit tells us that “the City of Opa-Locka, Florida, has high crime constantly.” Yes, the entire city, says the Court, is a defense lawyer’s dreaded “high-crime area.”

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But does that mean the Fourth Amendment is banished from Opa-Locka? No. In United States v. Johnson, the police received a late-night 911 call of a burglary by an African-American man in a white t-shirt. On the scene, the officers saw only one man, Paul Johnson, stopped him and patted him down. The Eleventh Circuit blessed this Terry stop because it was reasonable for officers to believe Johnson, a black man in a white-shirt was the burglar and that he might be armed (this is Opa-Locka, Florida, after all!). But the officer followed his legal pat-down (where he felt the outlines of a bullet inside Johnson’s pocket: insert middle school jokes here) by reaching into the pocket and removing ammunition and a holster. The officer went too far, says the Eleventh Circuit. The Fourth Amendment “allows the intrusion into the pocket if an outer clothing search allows a police officer to conclude that an item in a pocket is a weapon or contraband. Items not in these two categories cannot be retrieved.” Because the bullet was neither a weapon nor contraband (“ammunition itself . . . is not illegal”), the evidence seized from Johnson’s pocket must be suppressed.

What does it mean to “operate an aircraft”? Must a pilot lift the plane off the ground? Or is it enough that he simply taxies the plane from one hangar to another in order to fill the gas tank? In United States v. St. Amour, the government convicted a pilot of operating an aircraft with the knowledge that his homemade, auxiliary fuel tank violated FAA rules. But the pilot never flew the plane. The Eleventh Circuit panel toured the canons of statutory construction (the text, the regulatory framework, and the law’s policy), and landed on a broad definition of “operate”: “Needless to say, an aircraft cannot fly without fuel; it is a necessary precondition to flight. Therefore, St. Amour operated the aircraft . . . when he started, taxied, and fueled” his plane. Linguists will revel in the panel’s deep-dive into the federal aviation statute, although, in the end, the result seems easy. The defense here (“I did not operate the plane when I drove it across the tarmac and filled it with gas”) has a Clintonion (“that depends on what the meaning of the word ‘is’ is”) ring to it.

At a sentencing hearing, the district court asks the defense lawyer: “Does Mr. Machado wish to make a statement at this time?” The lawyer responds: “No, Your Honor.” The court never addresses Machado personally about his right to allocution. But did the court do well enough? Uh, no. For the third time in the last year, the Eleventh Circuit has vacated a sentence for this very mistake. In United States v. Machado, the panel reminded us that even under plain error review, even without an objection, the Eleventh Circuit will presume prejudice from this blunder and send the case back for a do-over.

The late Justice Antonin Scalia once wrote of the Armed Career Criminal Act and its now-defunct residual clause: “Insanity is doing the same thing over and over again, but expecting different results.” If so, then we should all be insane. The ACCA cases have taught us, most of all, that it pays to knock on a federal court’s door over and over again because, every once in a while, the court will change its mind and let us in. In Lee v. United States, the Court did nothing for a man whose ACCA sentence was based upon Florida robbery convictions. Not yet anyway. The Court denied Lee relief because it had to. Many years ago, the Eleventh Circuit held that the state crime fits within the ACCA’s elements clause. And now future panels are bound to do the same, whether the judges want to or not. Yet in his Lee concurrence, Judge Jordan has given us all a road map to challenge the statute anew. He tells us why the ancient precedents are flawed (“we dug ourselves a hole” and “we have since made that hole a trench”) and why recent Supreme Court opinions have overrun those cases. Judge Jordan urges his en banc brethren (and all of us) to try again. This is why we read the slip opinions. To follow the Court’s breadcrumbs and to wander in the forest, yet again, in search of justice.

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Judge Adalberto Jordan, Univ. of Miami School of Law

 

And meanwhile, on the very same day the Eleventh Circuit published the Lee opinion, the Supreme Court granted certiorari in Stokeling v. United States, where FPD Miami’s own Brenda Byrn will lift up her own challenge to the Florida robbery statute and, we hope, vindicate Judge Jordan’s cri de couer. All of this reminds me of a joke my friend used to tell in our much younger days: “The only difference between stalking and being romantic is how the girl feels about you.” Or here, how the court feels about you. Try and try again.

Contributors: Allison Dawson, Wes Bryant, Victoria Calvert, and Tom Hawker.

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