The Eleventh Circuit Board

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Beware all you blog writers out there: If you wait too long between posts, you may forget your log-in credentials. Or so I hear. Your correspondent, after a too-long absence, has returned home from the land of the First Step Act, where he has been urging judges to remedy the harsh crack-cocaine sentences of days gone by. Meanwhile, our friendly neighborhood appeals court has been busy in his absence. Here are some of the highlights, with more soon to follow:

DNA evidence is both damning and complicated and makes the head spin. The technology, like a cell phone, changes each and every year, and one struggles to keep up. In United States v. Barton, the Eleventh Circuit offers a useful software update. With terms like stochastic effects, picograms, and loci, Judge Marcus pens an accessible primer on the current science behind DNA analysis. Upon Barton’s Daubert motion, the government’s expert testified that DNA found on a firearm matched only 1 out of 41 million people, including Barton himself. Did the district court err in allowing her to testify at trial? No. Under Federal Rule of Evidence 702, a court is the “gatekeeper” of expert scientific testimony. A court must decide whether the methodology the expert used is sufficiently reliable under Daubert. At the Daubert hearing, Barton’s own DNA expert opined that the government’s expert’s results were unreliable because (1) although she used a proper test, she did not properly execute it, and (2) she used a quantity of DNA material too small to produce a reliable result. No problem, said the panel. None of these objections required the court to exclude the DNA evidence from the trial. The defense expert’s views were best left for cross-examination. Barton also asked the panel to measure hot-off-the-press guidelines and academic studies on the topic, all of which arrived long after the trial. The panel declined the invitation because an appeals court cannot measure fresh evidence of the expert’s un-reliability. Only a district court can do that and only through a motion for new trial.

Rachel Padgett pled guilty and waived the right to appeal. On the day of the sentencing hearing, her lawyer filed a certificate, signed by Padgett, in which she affirmed that she would not file an appeal. That same day, Padgett mailed to the district court a pro se document entitled “notice of intent to file a collateral attack with this court,” an attack on her lawyer’s perceived ineffective assistance of counsel. The clerk’s office, in a curious move, docketed the letter as a “notice of appeal and sent the case off to the appeals court. But was the letter a proper notice appeal? No, says the Eleventh Circuit. In United States v. Padgett, the panel held that the filing did not satisfy Federal Rule of Appellate Procedure 3(c)(1). Padgett’s filing did not name any court at all, nor did it so much as mention the word appeal. Although courts must construe pro se filings liberally, that truism cannot be stretched far enough to relabel this a notice of appeal. The court dismissed the appeal because it lacked jurisdiction to hear it. But we offer a shout out to Amy Weil, who briefed and argued the case so very well.

The Eleventh Circuit’s jurisprudence on the modified categorical approach is a jurist’s Choose Your Adventure book. In United States v. Gandy, the court played another variation on the MCA theme, and closed with a sour note for future defendants. Does the Florida crime of battery on a jail detainee count as a crime of violence under the sentencing guidelines? The panel assumed here that the crime is divisible between its two variants, touching-or-striking and bodily harm, and that only the bodily harm type fits within the COV definition’s elements clause. As always, a court must look to the Shepard documents to identify which version of battery Gandy committed. But what if the indictment and plea colloquy do not name either variety: touch-and-strike or bodily harm? In most cases, the inquiry would end. Under Moncrieffe v. Holder, the court would be required to presume that Gandy committed the least culpable variety, the variety that does not count as a COV. But the panel sidestepped that obstacle here by peering into the arresting officer’s police report. Wait, the police report? The Eleventh Circuit has said many times that a police report is not a valid Shepard document. But this police report, insists the panel, is different. The plea colloquy’s factual basis incorporated this report. And the report included the officer’s opinion that Gandy committed a bodily-harm battery. And that was that. The crime counts as a COV. But the view is not without critics. The panel created a circuit split on this question with the Eighth Circuit. And Judge Rosenbaum penned a blunt dissent; the Eighth Circuit gets the rule right, she says. Indeed, the Shepard rule demands certainty and this panel’s contorted path offers none. Besides, she asks, since when did we start deferring to the legal opinions of local police officers?

In United States v. St. Hubert, we find a stunning public display of judicial discord. The one page denial of St. Hubert’s petition for rehearing en banc, followed by 89 pages of concurrences and dissents, is a must-read thriller. If you want insight into the politics of the Eleventh Circuit and its so-called collegiality, or a 22-page discussion of statistics, or a 16-page definition of “prima facie,” this is the case for you. St. Hubert was convicted of Hobbs Act robbery, attempted Hobbs Act robbery, and two § 924(c) counts. He argued that his Hobbs Act robbery (and attempt) were not crimes of violence under § 924(c). Alas, St. Hubert’s arguments were foreclosed by binding precedent: In re St. Fleur. But that “opinion” was simply an order rejecting a defendant’s application to file a second or successive § 2255 motion. Why should such an order bind the hands of later merits panels? Judge Tjoflat (joined by Judges Ed Carnes, William Pryor, Branch, and Newsom)  tells us why in an enthusiastic concurrence. Judge Jordan pens a grudging concurrence. Judges Wilson, Martin, and Jill Pryor (and sometimes Judge Rosenbaum) sign dissents. Only Judges Marcus and Hull (both of who served on the original panel) and Julie Carnes stay out of the written fray, although they voted with the majority.

The dissenters challenged the majority’s habit of deciding complex legal questions through unreviewable SOS orders, and the majority took offense. In dissent, Judge Wilson narrated the flaws in the Eleventh Circuit’s approach to SOS applications: (1) the court treats the rule requiring an SOS order within thirty days as mandatory, while every other circuit treats that time period as optional; (2) the mandatory application form provides space for no more than 100 words of argument; (3) the form is usually filed pro se without the assistance of counsel; (4) the government is not permitted to respond; (5) oral argument is never granted; and (6) “orders that come out of this lackluster process are unappealable.” Other circuits can and do have oral argument, call for briefing, and publish far fewer orders. Nevertheless, without the safeguards inherent full merits cases, the Eleventh Circuit’s published SOS orders bind all future panels, including merits panels.

Judge Tjoflat accuses the dissenters of making “unfounded attacks on the integrity of the Court as an institution.” He argues that the requirement of a prima facie case and the thirty-day period for review are established by Congress; the Court published only 1.36% of the orders on SOS applications filed in 2016; and the decisions are not insulated from review because any judge may request an en banc poll. In her own dissent, Judge Martin finds little comfort in Judge Tjoflat’s defense that the court only rarely violates jurisprudential norms. Says Judge Martin, mistakes happen, and even one violation is one too many. Finally, she proclaims that while the dissenters’ views on Hobbs Act robbery, attempt crimes, and the SOS application dispute may be the minority views in our circuit, that does not mean those views are wrong. (A defense attorney’s mantra, if we’ve ever heard one). One more note: Nicole Kaplan’s certiorari petition on the SOS issue, Williams v. United States, No. 18-6172, is pending in the Supreme Court.

Our tireless contributors: Wes Bryant, Molly Parmer, Millie Dunn, and Nicole Kaplan.

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