The 11th Circuit Board

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The holidays, and the college football bowl season, are upon us. This week, the fate of your favorite team was shaped by Early National Signing Day and by the whims of teenage athletes. Our federal appeals courts are crafted in much the same way. In his first two years, President Trump has recruited and signed an extraordinarily high number of federal judges all over country. On the Eleventh Circuit, for example, he nominated three (Judges Newsom, Branch, and Grant) of the 12 active judges. Check out this Bloomberg story (complete with colorful maps that recall the old board game, Risk).

Do the rules of evidence apply at a § 851 hearing? In a federal drug case, a defendant with certain prior drugs convictions faces an enhanced mandatory minimum of 20 years or (gasp!) life without parole. How careful must a district court be when it decides whether a defendant’s prior convictions were, in fact, his prior convictions? Eleventh Circuit: Not too careful. In United States v. Hernandez, the court held that the rules of evidence (e.g., authentication, hearsay), which do not apply to “miscellaneous proceedings such as sentencing hearings,” have no place at a § 851 hearing. A judge must ask merely (1) whether the evidence of the prior conviction is “reliable” and (2) whether the government proves the conviction beyond a reasonable doubt.

We here on the Board rarely talk about unpublished opinions, but last week the court gave us a good one: United States v. Burton. Remember that in the Eleventh Circuit an unpublished opinion “may be cited as persuasive authority” but is “not considered binding precedent.” 11th Cir. R. 36–2. In Burton, the panel vacated a sentence as procedurally unreasonable. That is common enough. But the reason is unusual: the district court presumed (through cursory, confusing findings) that the guideline range, by definition, is the reasonable sentence. This was a no-no, of course. The opinion offers great language in service to any sentencing appeal:

We doubt neither that the District Court recognized the gravity of its duty when imposing Burton’s sentence nor that it gave the matter anything less than its careful attention. But our review of a sentence requires not the Court’s earnestness but its reasoning. When reviewing for abuse of discretion, reasoning is all that we have to guide our analysis. Without the reasoning, then, we cannot ensure that the sentence imposed conforms with what the law requires—reasoned consideration of arguments fashioned with an eye toward the statutorily enumerated factors under § 3553(a).

Back to the published opinions: The United States may deport a non-citizen who is convicted of a state offense “relating to a controlled substance.” Federal law defines “controlled substance” with a finite list of drugs. So what of a state drug statute, like Florida’s, that forbids possession not only of cocaine or marijuana, but also of drugs that are not on that federal list? The opinion in United States v. Guillen is a case study of the categorical approach and the Supreme Court’s most recent primer on the elements-versus-means query: Mathis v. United States. The Florida statute here is broader than the federal, true, but that only means we must ask another question: Is the statute divisible? Yes, it is, says the panel. The statute’s text is ambiguous (the roster of drugs is a long, breathless list bounded by the disjunctive “or”), so we look to Florida’s case law, jury instructions, and even Guillen’s indictment (with its invocation of “cocaine”). These sources establish that the type-of-drug fact is an element of the offense. Does a conviction under Florida’s drug possession statute count as a deportable offense? Yes, if that drug was cocaine. 

The government tries two men for the armed robberies of three gas stations. The star witness, Martin, testifies that he robbed the stations with the two men on trial. On cross-examination, the defendants try to prove Martin previously lied under oath in both a murder trial and a suppression hearing. How? By calling a man acquitted of the murder and a police officer from the suppression hearing. Both will say Martin committed perjury against them, too. Wait, can the defendants do that? District court: Nope. These defense witnesses must be excluded because Federal Rule of Evidence 608(b) forbids the use of extrinsic evidence “to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.” The Eleventh Circuit in United States v. Carthen: Yes, that’s right. Our case law says you can’t prove a witness is a liar though extrinsic evidence. Judge William Pryor concurred, but under protest: The court’s aged precedents were once correct, but no more. In 2003, Rule 608(b) was amended to replace “credibility” with “character for truthfulness.” The current rule does not bar impeachment by contradiction, where a party attempts to prove not that the witness is a liar, but merely that he lied. In a future appeal, says Judge Pryor, the court should overrule the outdated precedents and allow parties to prove with extrinsic evidence that a witness lied in the past.

Contributors: Colin Garrett and Allison Dawson. 

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