The 11th Circuit Board

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Eleventh Circuit judges work hard. Last year, the number of cases per active judge was 590. Among the federal appeals courts, this was the highest per-judge case load in the nation. By a country mile. And that diligence has produced a flood of recent published opinions.

A group of drug dealers collaborate to carve out territory, set up a collection of shared trap houses, and use violence to scare off competition from outside dealers. This sounds like a conspiracy, right? But what if these dealers are each independent? What if each must find customers and sell drugs on his own, and shares his profits with no one? What if the collective has no chain of command and no hierarchy? And what if this closed group, in fact, competes with each other in the zero-sum drug game? Are the dealers guilty of a single, federal drug conspiracy? Yes, says the Eleventh Circuit in United States v. Dixon. The opinion reads like an antitrust treatise describing the sins of colluding corporations: “Individual drug dealers who collaborate to achieve the overall results of their several efforts can be conspirators—even if they sometimes, or even always, compete for supplies or customers.” Wait a minute: Even if they always compete for supplies or customers? This expansive rule is hard to square with the court’s own jury instruction defining a § 846 drug conspiracy: “A conspiracy . . . is a kind of partnership for criminal purposes. Every member of the conspiracy becomes the agent or partner of every other member.” Anyway, this case had me reminiscing about The Wire and the Hamsterdam episodes. And that was nice.

A quick diversion away from criminal law: Does Title VII, which prohibits sex discrimination in the workplace, protect gay and lesbian employees against discrimination? The Eleventh Circuit’s en banc court had an opportunity to answer this question in Bostick v. Clayton County Board of Commissioners, but declined. Judge Rosenbaum, in her ever-engaging style, wrote a withering dissent from the en banc denial. She blamed her peers for turning their backs on LGBTQ workers. The court clings to a creaky 1979 precedent, a “precedential equivalent of an Edsel with a missing engine,” she writes. And she shames them: The court “should not sit idly by and leave victims of discrimination remediless.” Times have changed, she says, and so too should our appeals court. One silver lining: this term, the Supreme Court will measure a pair of pending certiorari petitions on this very question.

Judge Robin Rosenbaum (Melanie Bell, Fulton County Daily Report)

The opinion in In re Octavious Williams is, on its face, is a routine four-page denial of permission to file a second or successive § 2254 habeas petition. But the opinion’s importance lies in the 28 pages of concurrences written by Judge Wilson and Judge Martin and joined by Judge Jill Pryor. The panel challenges the rule in United States v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018), which held that a published decision denying a petition to file a second or successive § 2254 petition or § 2255 motion becomes binding precedent on the legal question posed by that petition. The panel criticizes the rule as a denial of due process. Judge Wilson: “[P]ublished panel orders—typically decided on an emergency thirty-day basis, with under 100 words of argument (often written by a pro se prisoner) without any adversarial testing whatsoever, and without any available avenue of review—bind all future panels of this court.” Judge Wilson notes that other circuits do not operate the same way. Nicole Kaplan raised this very issue in a pending Supreme Court petition for writ of certiorari in Sherman Williams v. United States. (Meanwhile, the behind-the-scenes work of this trio of judges may have led the Court to issue, for the first time in memory, a general order to stay all Dimaya-related SOS petitions until the en banc court resolves the Ovalles § 924(c) case.)

The police arrest a boyfriend and girlfriend for aggravated identity theft and possession of unauthorized access devices. The boyfriend pleads guilty and testifies as a defense witness at the girlfriend’s trial. Boyfriend: she knew nothing of my crimes. Girlfriend: I knew nothing of his crimes. District court: I will instruct the jury on deliberate ignorance. Boyfriend stored in your shared bedroom countless stolen purses, money, credit cards, gift cards, prepaid debit cards, a stolen loaded gun, a suitcase full of chargers and cell phones, and a tablet. And you stored the ammunition for his gun in your underwear drawer. And you drove him and his co-conspirators around town with the stolen contraband and, when caught, fled the police and ditched the evidence in a dumpster. The jury: guilty. On appeal, in United States v. Maitre, the Eleventh Circuit approved the deliberate-ignorance instruction. The girlfriend was aware of a high probability of the existence of the crimes and purposely contrived to avoid learning more so as to craft a defense. The boyfriend’s activities were impossible to ignore. The girlfriend’s failure to even inquire about those strange activities was enough to warrant the instruction.

The Eleventh Circuit continues to bludgeon meritorious Fourth Amendment claims with the weapon of good faith. The latest example: Agents investigating a series of robberies obtain damning cell phone records from phone companies. The agents do not seek judicial search warrants, but instead acquire the records via administrative requests under the Stored Communications Act. Defendants: these warrantless searches violated the Fourth Amendment and the Supreme Court just said so in Carpenter v. United States, 138 S. Ct. 2206 (2018). Eleventh Circuit: True, but you’re out of luck anyway. In United States v. Joyner, the panel blessed the otherwise illegal searches under the good-faith exception. At the time of the searches (well before Carpenter, it must be said), binding Eleventh Circuit case law approved of these Stored Communications Act inquiries. How were the agents to know the Supreme Court would say otherwise in Carpenter? The agents’ good faith absolved the searches of their Carpenter sins. (Of course, any such search post-Carpenter will be forbidden, honest mistake or otherwise.)

The Coast Guard boards a ship off the coast of Guatemala and arrests Wuilson Castillo. The agents carry Castillo across the seas for 19 days, including a stop at Guantánamo Bay, before delivering him to federal court in Miami to face drug charges. Castillo: The long detention, without a court appearance or bond hearing, violated my Fifth Amendment due process rights and my Fourth Amendment right to a prompt probable cause hearing. The Eleventh Circuit in United States v. Castillo: No, sir. Castillo’s guilty plea extinguished these constitutional challenges. The panel relies on the Supreme Court’s recent opinion in Class v. United States to say that a guilty plea washes away all constitutional sins, unless the error is jurisdictional. But Class does not say that. In a concurrence, the tireless Judge Martin offers a corrective lesson on Class: that rule does not block Castillo’s claim at all, especially where the government itself chooses to waive the waiver argument. But when Judge Martin measures the merits of Castillo’s detention claim, he loses anyway. Here the 19-day delay was reasonable, she wrote, because agents arrested Castillo more than one thousand miles from Miami, on the far side of the Panama Canal, and agents neither interrogated nor mistreated Castillo on the trip to Florida.

At a bench trial, the district court finds Patrick McIntosh not guilty by reason of insanity. The court then decides whether to civilly (and indefinitely) commit him to the custody of the Attorney General. Everyone agrees that McIntosh poses a substantial risk of physical harm to others (under the so-called “dangerousness” test). But, says 18 U.S.C. § 4243, a court may not civilly commit a defendant unless that danger arises from a “mental disease or defect.” Does McIntosh’s diagnosis of a personality disorder (Narcissistic Personality Disorder with Borderline, Histrionic, and Antisocial traits) count? Yes, because McIntosh’s symptoms are severe and substantially impair his behavior.

And, finally, I am ready for my dreaded post-game wrap-up of Beeman v. United States. Last month, the Eleventh Circuit denied our petition for rehearing en banc. The issue: When a defendant files a Johnson-based § 2255 motion challenging his ACCA sentence, what does his burden of proof look like? The Beeman holding: A defendant must show, as a historical fact and at the time of sentencing, that his sentence was more likely than not based solely upon the ACCA’s residual clause. But this is an impossible task in most cases. Why? Because until Johnson arrived in 2015, district judges rarely, if ever, spoke the words “elements clause,” “enumerated crimes clause,” or “residual clause” out loud. Until Johnson, it did not matter which of the ACCA’s clauses applied because the safety net, the residual clause, was there to catch nearly everything. But we now know, after Johnson, that the residual clause is, and always has been, unlawful. So only now are district courts motivated to say aloud which ACCA clause applies. No matter, says our appeals court. But not all hope is lost. The en banc denial included a strong dissent from Judge Martin and Judge Jill Pryor. And there is a widening split among the federal circuits. And we will file a cert petition in the Supreme Court next month. So there’s that. Stay tuned.

Contributors: Kendal Silas, Nicole Kaplan, Regina Cannon, Rick Holcomb, and Molly Parmer.

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