The 11th Circuit Board

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Your correspondent has returned from his sabbatical: the Ovalles en banc argument has come and gone. How does Dimaya affect § 924(c)? We shall soon see. Meanwhile, our neighborhood appeals court has been productive. No summer recess at the Tuttle Building.

In the Eleventh Circuit, the Fourth Amendment demands neither a warrant nor probable cause to search a cell phone at the border (including the airport). But what about reasonable suspicion? Nope, not that either. In United States v. Touset, the panel held that agents may search any electronic device of any international traveler (citizen or non-citizen) without any suspicion at all “simply by virtue of the fact that [the search] occur[s] at the border.” (The Fourth and Ninth Circuits say otherwise, so we now have a circuit split.) But even if agents needed to show reasonable suspicion, said the panel, they did so here. When Touset landed back home at the Atlanta airport, his name was on a watch list because 18 months earlier, he sent three money transfers to a Philippines phone number associated with a Yahoo email in-box that contained child pornography. (Got that? Not sure I do.) So when Touset landed in Atlanta after a foreign trip, agents detained him and searched his nine (yes, nine) electronic devices. Some of those devices contained child pornography. The court rejected Touset’s staleness challenge (the money transfers were 18 months old) because “pedophiles rarely, if ever, dispose of child pornography.” Pedophiles? Child pornography? While the agents knew that Touset had thrice sent $35 to a phone number in the Philippines long ago, they knew no more than that. The agents (and the appeals court) had no evidence that Touset possessed child pornography until after the searches, not before. That is the whole point of the Fourth Amendment, is it not? (Meanwhile, our brother David Wolfe, on behalf of Touset, has filed a petition for rehearing en banc.)

The Spanish word dueñas means owners. In United States v. Cobena Duenas, the Eleventh Circuit held that the prophetically-named defendant was the “owner” of counterfeit money he purchased in Florida. A co-defendant, Cabeza (yes, indeed: “head” in Spanish), sent Cobena Duenas with $5,000 of genuine money to do a deal for him: to buy $632,300 in counterfeit currency. The jury convicted Cobena Duenas of a conspiracy to exchange counterfeit money. On appeal, Cobena Duenas argued that the evidence was insufficient because he did not know the money he bought was counterfeit. The Eleventh Circuit offered a primer on § 371 conspiracies: although a defendant must know the money is counterfeit, circumstantial evidence alone may prove that knowledge. The court also imported the “prudent smuggler doctrine” from its drug-conspiracy jurisprudence. (Yes, I know. “The prudent smuggler” could be a character in The Canterbury Tales, but I did not make it up.) The doctrine presumes that a contraband smuggler enlists only trusted confidants, and shares intimate details of the crime with those confidants in order to guarantee the crime’s success. Sort of like Jack Byrnes’s “circle of trust” in Meet the Parents. The court affirmed the conviction here: “A reasonable jury could infer that Cabeza would never have entrusted Cobena Duenas to close the deal without telling him exactly what he was to receive and bring back.” That is a low bar, indeed, for proving knowledge, is it not? By that logic, must we presume guilt in every smuggling conspiracy?

Q: If officers suspect a burglary is in progress, can they enter a home and search it? A:Yes. Q: If they can enter once, can they enter six times, all without a search warrant? A: Yes, again. In Montanez v. Carvajal, an officer patrolled a neighborhood that suffered frequent daytime burglaries. He saw a man pacing in front of a house while nervous and “hunched” and talking on a cell phone. The first man then walked to the back of the house and met another man, who was also “huddling” and lurking about. Police officers arrested the men, although both said (truthfully, as it turned out) that they lived in the house. (And because huddling and hunching are not crimes anyway, they were never charged.) Yet officers searched the house. Six times. They found marijuana and drug paraphernalia but, again, never charged anyone with a crime. The owners and the young men later filed a § 1983 action against the police department. The Eleventh Circuit insulated the officers from the lawsuit with the shield of qualified immunity. Said the court: the officers did not violate the Fourth Amendment. Because a burglary in progress may have more than one or two perpetrators or may leave injured or incapacitated victims behind, a suspected burglary is an exigent circumstance justifying a warrantless entry. It makes no difference if the burglary is about to happen, is in progress, or has just concluded. And because the first two entries were justified, and the expectation of privacy was extinguished, the four extra searches must be excused. Just how long this free pass around the Fourth Amendment may last, the court did not say.

The government indicted a woman for buying Publix money orders with prepaid debit cards obtained with stolen names and social security numbers. She said: It wasn’t I. At trial, the government presented a surveillance video from Publix showing a woman buying the tainted money orders. A federal agent took the stand and identified the suspect in the video as the defendant. (Note: he did so although he had spent merely 20 minutes of his life with the defendant, at a traffic stop, prior to trial). In response, the defense tried to call a lay identification witness; that witness had spent two hours with the defendant well before trial and would have testified that she was not the woman in the Publix video. The district court excluded the defense witness. Wrong, wrote Judge Jordan in United States v. Knowles: “In the law, what’s sauce for the goose is normally sauce for the gander. We have applied this common-sense principle of equal treatment in the context of expert witnesses.” So too now with lay identification witnesses. (Although, alas, the error was harmless here.)

Bosnia Map Ency Britannica 2011

In United States v. Mitrovic, the government accused a Bosnian immigrant of lying on his application to become a United States citizen. Where the form asked whether he had ever persecuted another person on account of race, religion, or national origin, Mitrovic said no. But the government believed otherwise and indicted Mitrovic for unlawfully procuring his citizenship. The government: In the nineteen-nineties, Mitrovic was a violent guard in a Bosnian prison camp, a camp in which Serbs held and abused non-Serbs in a wave of so-called ethnic cleansing. Mitrovic: Not true, I was never a guard. The defense team (the FDP’s own Jeff Ertel, Molly Parmer, and investigator Jordan Dayan) traveled to Bosnia several times in search of witnesses. They found 14 former prisoners who told them that they had never seen Mitrovic working as a guard at the camp. Yet when the defense team returned to Bosnia one last time for depositions, only four of the 14 witnesses agreed to participate. Ten refused, apparently because they feared reprisals at home, reprisals for the perceived help given to an accused Serb collaborator. At trial, the government presented seven former prisoners, each of whom said that Mitrovic was a guard and even beat prisoners. In response, Mitrovic’s team first offered the testimony of its four deposed witness-prisoners who said otherwise, then sought to recount to the jury (through the defense investigator) the statements of the ten non-deposed witnesses. The district court refused on hearsay grounds. But what of the constitutional right, via Chambers v. Mississippi, to present “a complete defense”? The Eleventh Circuit affirmed: by presenting four witnesses, the defense told its story well enough. The additional ten witnesses, said the court, “may have benefitted Mitrovic, [but] it was not essential to a complete presentation of his defense.” But how can this be, unless we excise the word “complete” from the constitution’s “right to complete a compete defense”? Frank Robinson once told a reporter at Time Magazine: “Close don’t count in baseball. Close only counts in horseshoes and grenades.” And the constitution, too, it seems.

Underappreciated Contributors: Millie Dunn, Wes Bryant, Nicole Kaplan, Molly Parmer, and Kendal Silas.




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