The 11th Circuit Board

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The Eleventh Circuit has ramped up its production line lately with more, and longer, opinions. We will soon catch up.

The government charged a fellow named Elbeblawy with crimes arising from a healthcare fraud scheme. For two years, he cooperated with the government. He even signed a plea agreement with a detailed factual basis. But Elbeblawy later cancelled the guilty plea hearing and said he wanted a trial. What could go wrong? Well, at trial the government introduced Elbeblawy’s written factual basis, his confession of guilt. The jury convicted him. Wait, can the government do that? Yep, says the Eleventh Circuit in United States v. Elbeblawy. In the signed plea agreement, Elbeblawy waived his protections under Fed. R. Crim. P. 11 and Fed. R. Evid. 410. The contract even said that if Elbeblawy breached the agreement, which he did by opting for trial, the government would be free to trumpet the factual basis in front of the jury. So, the lesson? Don’t sign a written factual basis before a guilty plea hearing, just in case the client changes his mind. We do spy one silver lining, though. The Eleventh Circuit held here for the first time that a defendant in a healthcare fraud case must not be held jointly-and-severally liable for the forfeiture of property or proceeds that he himself did not acquire. The panel extended the rule in Honeycutt v. United States, a drug case, to healthcare fraud. A fellow need not suffer forfeiture for ill-gotten gains that his co-defendants earned.

Let’s run the following facts through the Sixth Amendment’s speedy trial filter: Local officers arrest a man for knocking off a warehouse filled with cell phones. He bonds out of jail and gives a home address that matches his driver’s license. Two years later, the federal government indicts the man. The FBI case agent does nothing to find him but this: he asks a fellow agent a question. Which agency (the FBI or the U.S. Marshal Service) is responsible for arresting our man on federal warrant? He gets no answer. The case agent (and U.S. Attorney’s Office) then wait for almost two years. The case agent finally figures out that he is responsible for the arrest and quickly finds the man, four years after the crime and two years after his federal indictment. Where was he? At the address listed on the driver’s license. Does the government’s “gross negligence” (a term coined here by the magistrate court) violate the Sixth Amendment? No, says the Eleventh Circuit in United States v. Uranga, because the agent’s honest mistake, however inexplicable and illogical, must be excused. The FDP’s Brian Mendelsohn will soon file a cert petition in the Supreme Court.

The Supreme Court’s lightning strikes in Johnson and Dimaya knocked out the residual clauses in the ACCA and in 18 U.S.C. § 16(b). Like a bottle lined up at a carnival shooting gallery, the identical residual clause in 18 U.S.C. § 924(c) seemed to be next. Or so we thought. In Ovalles v. United States, the en banc Eleventh Circuit salvaged § 924(c)’s residual clause from the dustbin of history. In the majority opinion, Judge Newsom saved the statute with a curious grammar lesson and the canon of constitutional avoidance. The court shifted from the time-honored categorical approach to an invented-out-of-thin-air alternative: the “conduct-based approach.” The stunning result: A jury must now decide whether or not a defendant’s underlying crime (e.g., conspiracy to commit Hobbs Act robbery) counts as a crime of violence under § 924(c)’s residual clause. The court’s dueling majority and dissenting opinions total 153 pages, but every page is worth reading. The federal circuits are split on this question. The government has filed cert petitions in those circuits where it has lost (Fifth and Tenth), and defendants have filed (and will soon file) petitions where they have lost (First, Second, and Eleventh). Ms. Ovalles, with the help of your correspondent, will soon join the § 924(c) cert petition parade.

A quick ethics primer: Does a defense lawyer suffer a conflict of interest when during his federal drug trial with Client A, the government calls another current client, let’s call him Client B, to testify against Client A and his co-conspirators? What if the lawyer was representing Client B in a pending appeal, where he challenged an obstruction enhancement that Client B earned when he offered to pay someone to give false testimony in his own case? And what if, at Client A’s trial, the lawyer declined to cross-examine Client B at all, and asked nothing about the obstruction, nothing about his fervent hope for a Rule 35 motion, nothing? And what if everyone in the courtroom (judge, prosecutor, defense attorney, witness) except Client A knew about the conflict? Time for a do-over, said the Eleventh Circuit in United States v. Williams. The court remanded the case with instructions for the district court to explore whether the conflict adversely affected Williams. If so, he gets a new trial (and, surely, a new lawyer). Our own CJA panel member Sydney Strickland won this appeal and restored the good name of lawyers everywhere.

And now a science lesson. The outcome in United States v. Phifer, a drug case, depended heavily upon the definition of a “positional isomer.” Positional what, you say? Judge Rosenbaum began her opinion with a promise to “science the heck out of this case.” The panel took a deep dive into organic chemistry. Phifer was charged with possession of ethylone with intent to distribute. But ethylone is only a prohibited substance if it is a “positional isomer of butylone.” The DEA says it is, but on appeal the Eleventh Circuit panel declared the regulatory language to be ambiguous. The government urged the panel to give the DEA’s definition Auer deference. Put another way, says the government, the court must defer to the DEA’s definition because its reading is not plainly erroneous or inconsistent with the regulation. The panel declined the invitation. It held that in a criminal case, the rule of lenity trumps Auer deference. The panel vacated Phifer’s conviction and remanded for a Daubert hearing and a new jury trial. But this is complicated stuff, so keep your organic chemistry books nearby.

We close with a series of professionalism blunders in United States v. Garcia: At trial, after a lunch break, everyone but Garcia and her lawyer returned to the courtroom on time. The trial judge ordered the government to begin an examination of its own witness in front of the waiting jury. The defense lawyer showed up three minutes later and Garcia ten. The pair had missed important, inculpatory testimony. The next day, the prosecutor felt uneasy about these events and asked for a hearing about the absences. Even then, the defense attorney did not object. This proved fatal on appeal under the unforgiving plain-error rule. Yes, said the Eleventh Circuit panel, the trial judge erred. And Garcia might have won on appeal had trial counsel objected when he walked back into the courtroom, however late. But under the harsh light of the plain-error rule, Garcia failed to show that the error likely affected the outcome of the trial. This result is all the more painful because had trial counsel objected, the government would have strained (and failed) to prove the error was harmless. So what’s the lesson here? Object, especially if the trial court starts without you.

Contributors: Rebecca Shepard, Natasha Silas, Judy Fleming, Suzanne Hashimi, and Jeff Ertel.

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