The 11th Circuit Board

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Happy August. Our friendly neighborhood appeals court has been flooding the airwaves with opinions and running oral arguments two panels at a time. It’s time to catch up. Here are a few recent editions.

The old Kodak slogan, “You press the button, we do the rest,” lives on in police work all over this circuit. In United States v. Babcock, we hear of one such tale. Police officers arrived at a house after a 911 call. A grown man met them out front, then a sixteen-year-old girl walked out, bleeding from her thigh. The man pulled out cell phone and showed police a video of the girl holding a knife and threatening to kill herself. Bad idea. The man should have kept the phone in his pocket. Officers searched the home and found blood and prescription bottles. The officer (light bulb!) seized the man’s phone (over objection), acquired a search warrant two days later, and found sexually-explicit images and videos of the man and girl. Could he do that?! The appeals court offered a mixed review. The good news: Given a user’s deep possessory interests in a smart phone, this two-day seizure was a full Fourth Amendment seizure (and not a permissible “Terry stop” of the phone) that required probable cause. The bad news: The officer had probable cause to believe that the man stored evidence of crimes on the phone and there were exigent circumstances, too, because this man, after refusing to hand over the phone willingly, was a threat to delete incriminating evidence on the phone. Practice tip: Keep your phone in your pocket.

The court continues to pick winners and losers in the § 924(c) crime-of-violence sweepstakes. Which crimes of violence are in and which are out? After United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), in which the Supreme Court recently struck down the § 924(c) residual clause, a crime of violence may find shelter only under the elements clause. The latest Eleventh Circuit installment? Federal second-degree murder in violation of 18 U.S.C. § 1111. In Thompson v. United States, the court added the crime, like its Florida doppelganger, to the elements-clause basket because, well, because if second-degree murder (!) doesn’t involve the use of force, what crime does?

Let’s say (1) the federal indictment describes the interstate nexus element, (2) the factual proffer for the guilty plea says that the government at trial would prove the interstate nexus, but (3) the proffer includes no facts explaining how the crime affected interstate commerce? Does the district court have subject-matter jurisdiction to accept a guilty plea? Yes, says the panel in United States v. Grimon, because the interstate commerce element (here the crime was § 1029(a)(3) (possession of 15 or more unauthorized access devices) is “non-jurisdictional.” But how can that be, you ask? The interstate commerce element is jurisdictional only in the sense that it relates to the power of Congress to regulate the forbidden conduct. But it is not “jurisdictional” in the sense that it bears on the whether the district court is empowered to adjudicate the case. Once this indictment charged Grimon with a violation of federal law and cited the proper statute, and here it did so, then the court had power to act.

This “jurisdictional element” topic has risen to the surface again in the wake of the Supreme Court’s recent opinion in Rehaif v. United States, 139 S. Ct. 2191 (June 20, 2019). There the Court held that the crime of possession of a firearm by a prohibited person (defined in 18 U.S.C. § 922(g)) includes an element that the “knowingly” mens rea set forth in 18 U.S.C. § 924(a)(2) means not only that the defendant must know he possessed a firearm, but he must also know that he is a prohibited person (e.g., a convicted felon, an undocumented immigrant, a drug addict). Is this element non-jurisdictional (so that a guilty plea washes away the defect in the indictment and plea colloquy)? Or jurisdictional, so that a conviction is presumptively unlawful and must be vacated? Only time will tell. The issue is already percolating in the Eleventh Circuit.

Finally, the Court has offered another chapter in the post-Johnson ACCA narrative. In Tribue v. United States, the district court sentenced the defendant, convicted of possession of a firearm by a convicted felon, under the ACCA. The PSR author identified three ACCA predicates—two Florida delivery of cocaine convictions and one Florida fleeing-and-eluding conviction. Although Tribue also had a third conviction for delivery of cocaine, the probation officer did not use this conviction as an ACCA predicate, the prosecutor did not add it to the ACCA list, and the district court applied the ACCA without it. After Johnson, Tribue filed a § 2255 motion arguing that because fleeing-and-eluding no longer counted as a violent felony (it did not), his ACCA sentence was unlawful. The government then substituted the phantom third drug offense in place of the fleeing-and-eluding conviction. With this new predicate in hand, the district court snatched defeat from the jaws of Tribue’s victory and denied the motion. Oh no, said Tribue on appeal, the government waived the issue by failing to rely on the third drug conviction at the original sentencing hearing. But oh yes, said the Eleventh Circuit, on appeal. The government is not required to identify any more than three ACCA predicates. What’s more, Tribue did not challenge his ACCA enhancement at the sentencing hearing, so the government had no need to identity a fourth predicate. The result here would have been different if the government disavowed reliance on the fourth predicate, see United States v. Canty, but it never did so here.

Contributors: Kendal Silas and Vionnette Johnson.

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