The 11th Circuit Board

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A news bulletin from the Supreme Court: Last week, Erik Hughes won. His lawyers: our own Stephanie Kearns and Brian Mendelsohn (with Josh Rosenkranz and Eric Shumsky at Orrick). The issue: The Eleventh Circuit refused Hughes a drugs-minus-two guideline reduction under Amendment 782 because he pled guilty long ago with a binding plea agreement. Reversed, said the Supreme Court, in an opinion authored by Justice Kennedy. A binding plea alone does not block an Amendment 782 reduction. Well done, Team Hughes!

Justice Kennedy
Justice Anthony Kennedy, (Pete Maravich/Getty Images)

Meanwhile, the Supreme Court’s recent opinion in Sessions v. Dimaya continues to send concentric waves into the wider sea of the federal courts. The Eleventh Circuit recently granted a petition for rehearing en banc in Ovalles v. United States. The en banc court soon will decide whether or not Dimaya (like its cousin, Johnson) renders 18 U.S.C. § 924(c)’s residual clause void for vagueness. Your correspondent will argue the case on July 9.

Now back to our regularly-scheduled programming: a pithy tour of recent Eleventh Circuit opinions.

You can’t pick your family, but you can pick your co-conspirators. Delexia Harris’s brothers were charged with murder and other crimes in federal court. The court entered a protective order that barred the defense team from revealing the identities of government witnesses. Someone violated the order. Suddenly Harris, the sister, threatened witnesses on Facebook (people, she said, who were named “in the paperwork from the lawyers”). The government indicted Harris for witness tampering and obstruction. At her trial, the district court admitted the protective order from the brothers’ case, even though everyone agrees that Harris herself did not know of the order. In United States v. Harris, the Eleventh Circuit panel affirmed. Why? The protective order proved that witnesses “faced substantial risks” and reasonably could have interpreted Harris’s communications as authentic threats. This is curious, though, because there is no evidence the witnesses knew about the protective order either. And this cautionary tale reminds all of us to tread carefully around protective orders.

Justice Thomas wrote last month in Collins v. Virginia that he has “serious doubts” about applying the exclusionary rule to the States and suggests that the Court ought to consider overruling Mapp v. Ohio. The exclusionary rule is in peril. Take United States v. Maxi. Police officers, without a warrant, wanted to detain occupants of a suspected drug house. Five officers streamed through a chain-link fence and rushed to the back door. One officer reached through the metal security bars at the threshold and rapped on the wooden back door. Maxi opened the door wide enough for the officer to see cocaine inside the house. The officer forced open the metal gate and nabbed Maxi. Good news: the Eleventh Circuit agreed that Maxi had standing to contest the search even in the commercial trap house, agreed that officers violated the Fourth Amendment by rushing into the curtilage without a warrant, and agreed that the officers may have performed an unlawful protective sweep after Maxi’s arrest. Constitutional principles “do not invite an armed battalion into the yard to launch a raid. Such a sight would inspire most of us to—well, call the police.” Bad news: none of that matters. The panel held that the unlawful “manner” of the entry was irrelevant because we can imagine that had the officer conducted a lawful, peaceful “knock-and-talk,” Maxi would have opened the door in just the same way, the officer would have seen the cocaine in just the same way, and the tale would have unspooled in just the same way. No harm, no foul. Dear exclusionary rule: Where, oh where have you gone?

Government: A Newnan man who shares child pornography through the Ares peer-to-peer file-sharing program is guilty of distributing child pornography, even if he doesn’t know the network makes his files accessible to others. District court: Agreed. Eleventh Circuit. Not so fast. In United States v. Carroll, local CJA hero Saraliene Durrett (pictured below) convinced the panel to vacate Carroll’s conviction for distribution of child pornography. Although Ares allowed internet users around the world to download images from Carroll’s computer files, the government failed to prove Carroll knew this was happening. The Ares software automatically made Carroll’s files available to the network and shared those images without any act or prompting by Carroll. Without proof that Carroll knowingly signed on to that hidden practice, he is not guilty of the distribution crime.

Saraliene Durrett

Agents in the Florida Keys found twenty-eight Cubans marooned on an island. On the same island, a park ranger found a broken-down boat, a boat owned by Suarez, whose wife and kids were in the group of Cubans. Suarez signed a form allowing the ranger to carry out “a complete search of the vessel to seize its contents for any legitimate purpose.” Did this consent permit the ranger to seize a GPS unit from the boat and scrape the damning data (multiple trips back and forth to Cuba!) from the unit? Yes, says the Eleventh Circuit, in United States v. Suarez. The search was reasonable because both Suarez and the ranger knew the object of the search was to find evidence, including the boat’s travel history, of alien smuggling. Suarez suffered one more gut punch later in the case. At sentencing, the district court announced out of the blue that it planned to enhance Suarez’s guideline range for obstruction of justice for suborning perjury. A strange turn of fate because Suarez never testified. Ah, said the district court, but Suarez’s witnesses lied to the jury. The Eleventh Circuit panel agreed. Suarez “sat idly by” during his lawyer’s opening statement, where the lawyer told the jury that defense witnesses would testify that some other pilot ferried them from Cuba to Florida. When those witnesses later took the stand, Suarez did nothing to stop the false testimony. But what of the late notice? The district court was free to spring it on Suarez at the hearing. A defendant is not entitled to notice of a variance, and nor is he due notice of a guideline enhancement.

In United States v. Shabazz, the government indicted Shabazz for crimes related to the filing of fifteen false tax returns. Yet at trial, the government offered evidence of thousands more unindicted tax returns and identity-fraud victims. Shabazz (represented by the indomitable Leigh Finlayson) argued that the uncharged conduct would swamp the charged counts. The district court admitted the evidence and the appeals court affirmed: the uncharged evidence was not barred by Rule 404(b) because it was “inextricably intertwined” with the charged conduct. The stunning ratio (for each indicted tax return, the jury learned of more than 100 uncharged tax returns) caused the panel no heartburn at all.

Government: The owner of a trucking company bribed three employees at a federal agency to steer transportation contracts his way. The owner: Not true. I didn’t bribe anyone; those guys coerced and blackmailed me into making those payments. And, by the way, may I have a jury instruction on the lesser-included offense of giving illegal gratuities? District court. Nope. Eleventh Circuit. Agreed. In United States v. Whitman, the panel rejected the lesser-included offense instruction. The owner’s defense of coercion, if believed, would have required the jury to acquit him of both bribery and giving illegal gratuities. Whitman was in for a penny on coercion, so he was in for a pound on bribery alone.

Contributors: Suzanne Hashimi, Rick Holcomb, Stephen P. Johnson, Natasha Perdew Silas, and Regina Cannon.

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