The 11th Circuit Board

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Our appeals court prides itself on having one of the highest workloads of all the federal circuit courts. Indeed, the Eleventh Circuit is the second busiest federal appeals court by at least one metric: the number of open cases per active judge. A table on the United States Courts website lists the most recent (March 2019) number of pending cases in each circuit, and when we divide those figures by the number of active judges in each circuit, our home circuit is ranked behind only the Ninth Circuit on the busy-ness scale. Our home circuit averages 290 open cases per active judge. But we will speak only of eight Eleventh Circuit cases here.

Is a federal kidnapping conviction under 18 U.S.C. § 1201(a) a crime of violence? No, said the panel in United States v. Gillis. The crime is categorically not a crime of violence worthy of a conviction under 18 U.S.C. § 373 conviction (and, by implication, under the more common § 924(c)). The court found that the kidnapping statute is indivisible. And because it can be committed by non-violent means, such as inveiglement or decoying (that is, through mental restraint), it is not a crime of violence. Judge Hull dissented. Predictably, she focused on the word “conduct” in the statute to argue that the categorical approach should not apply and that the court should look at Shepard documents to determine whether the offense involved the use of force. The government did not file an en banc petition, so the opinion stands.

In United States v. Davis, the Supreme Court recently red-lined the § 924(c) residual clause. Crimes like conspiracy to commit Hobbs Act robbery (and many others: call me for a list!) no longer count as crimes of violence. What do we do about all those folks in prison serving § 924(c) sentences founded upon suddenly invalid crimes of violence? Put another way, is the rule in Davis retroactive? In In re Hammoud, the panel held that Davis announced a “new rule of constitutional law” because it narrowed the scope of people eligible for an enhanced sentence and because it extended the holdings of Johnson and Dimaya to a new statute and context. Although the Supreme Court in Davis did not expressly declare its holding to be retroactive, that outcome is inevitable.

What does it take to win a contested Johnson/ACCA claim in the Eleventh Circuit? Based on the decision in Weeks v. United States, it takes really good lawyering (by our own Tom Hawker), persistence in the face of judicial resistance, and a set of facts that are unlikely to ever appear again. A decade ago, the district court sentenced Weeks as an armed career criminal based on four Massachusetts convictions. Weeks objected to two: resisting arrest and assault and battery. The district court relied on the assault conviction, but later, while Weeks’ direct appeal was pending, the First Circuit held that assault no longer counted as an ACCA predicate. The Eleventh Circuit affirmed anyway because the alternative predicate, the resisting conviction, counted under the residual clause. But after Johnson, the residual clause evaporated, so Weeks filed a § 2255 motion raising the ACCA claim. Yet he lost again under the rule in Beeman because, said the district court, at the time of the original sentencing hearing, it had used the elements clause, not the residual clause, to count the assault conviction. Confused yet? On appeal, the Eleventh Circuit affirmed that order in an unpublished opinion. But Weeks’ lawyer filed a petition for panel rehearing and argued that the ACCA sentence must have been based on the verboten residual clause. How do we know? During his own direct appeal, the law changed when the First Circuit declared the assault statute did not fit under the ACCA elements clause after all. Under Beeman, Weeks argued, the relevant time period (“at the time of sentencing”) includes not only the original hearing, but also the direct appeal. The panel agreed and issued a new-and-improved, published opinion: Weeks’ ACCA enhancement must evaporate after all.

Need to brush-up on the expert-witness rules in the Federal Rules of Evidence? Check out United States v. Stahlman, where the panel offered a primer on expert witnesses. In this child enticement case, the proverbial battle of experts was hardly a battle at all. The government won in a rout. Here’s the cast of characters. The defense expert (a psychologist): Stahlman was simply role-playing and engaging in fantasy play and lacked the criminal intent to draw a child into sex. The Eleventh Circuit panel: He can’t say that. Rule 704(b) forbids an expert from offering the jury an ultimate opinion on a defendant’s intent. So what about the government’s expert? The FBI agent: the girl in the image was a minor, this fellow’s Craigslist ad would have been flagged by law enforcement, and the ad and the fellow’s emails with undercover agents show he was trying to entice a child for sex. The Eleventh Circuit panel: the district court bungled the Rule 701/Rule 702 inquiry, but the agent’s testimony was admissible anyway. Query: Did the FBI agent not also offer a forbidden ultimate opinion on Stahlman’s intent? What’s the difference between these experts, other than who paid their fees? 

Experts, experts everywhere! In United States v. Hawkins, the panel reviewed the testimony of a DEA-task-force agent gone wild. Due to the agent’s rank speculation, improper commentary on Hawkins’ motives, and narrative-form answers, the panel vacated the convictions. The case agent frequently strayed from interpreting code and explaining drug trafficking practices—testimony permitted as an expert—to opining about the defendants’ mental states based on that code. He told the jury that the phrase “making a move” meant that the co-conspirators were intending to “re-up” their cocaine supply. Such testimony is no longer evidence, but argument, said the panel. Under the guise of providing an expert opinion, the agent also speculated about the intentions of the co-defendants. The agent testified about whom he “felt” was being discussed in an intercepted communication; what he “believed” was happening in the conspiracy; and what “could” be communications relating to cocaine manufacturing. Finally, the agent impermissibly provided narrative responses and summaries of the evidence. The agent, held the panel, “effectively spoon-fed his interpretations of the phone calls and the government’s theory of the case to jury.” Not allowed.

At a first trial, the jury convicted a defendant of conspiracy to commit money laundering, and checked the verdict-form box (“guilty”) next to one of the money-laundering theories (by sending funds internationally), but left the other object (concealment of payments) blank, with neither a “guilty” nor “not guilty” verdict. That fellow then won an appeal and returned for a second trial. Does the double jeopardy clause permit the government to retry him on both variations of the conspiracy? Yes, says the Eleventh Circuit. In United States v. Feldman, the defendant argued that he was twice put in jeopardy for conspiracy to commit concealment money laundering because, at the first trial, that object was charged, but the jury did not convict. Feldman argued that the jury, by its silence, impliedly acquitted him of concealment money laundering. Double jeopardy, he insisted, barred a second trial on that theory. The Eleventh Circuit had previously held that where a single count charges two different theories of the offense and a jury acquits under one theory and fails to reach a verdict on the other, the government can retry the defendant on the other theory. But here the first jury found Feldman guilty of conspiracy to commit money laundering by international transactions but said nothing about the concealment theory. How does double jeopardy work here? The panel said: The implied-acquittal doctrine is limited to two settings. First, the two crimes must be different offenses, not two means of committing a single offense. Second, a conviction for one crime must logically exclude guilt of another crime. The doctrine has no place here.

A federal magistrate judge in Virginia signed a warrant for agents to search computers of two Alabama men who store child pornography on the dark-web’s The Onion Router (TOR)? Can she do that? Yes and no. In United States v. Taylor, the panel rejected these ever-more-common nationwide remote-access computer search warrants (known as NIT warrants). Taylor won his argument that the warrant exceeded the magistrate’s authority under Federal Rule of Criminal Procedure 41(b) and the Federal Magistrate’s Act, 28 U.S.C. § 636(a). The warrant was void and the searches were unlawful under the Fourth Amendment. Not so fast, said the panel. Because the Leon exclusionary rule is meant to deter a police officer’s misconduct, not a magistrate’s mistake, the good faith exception salvages this search.

Federal jury: A police officer who beat and used a Taser against a victim during a traffic stop (and lied about it afterward) is guilty of deprivation of rights under the color of law and obstruction. District court: I will not apply the cross reference to the higher, aggravated assault guideline, U.S.S.G. § 2A2.2, because the defendant says he used a Taser on the victim merely to subdue him, not to inflict bodily injury. The government: But that’s ridiculous because the officer surely had both purposes in mind. Eleventh Circuit: We agree with the government. In United States v. Brown, the panel vacated the sentence because it disapproved of the district court’s apparent, but flawed, single-intent theory. The panel also forgave the government’s faux pas. The government argued below that the court must apply § 2A2.2, but for different reasons. No worries, said the panel: “Because the government preserved the specific ground for review implicated by its dual intent theory—namely, that Brown had the intent to cause bodily injury at the time he used a Taser—it may offer new arguments to support that position.” This no-harm-no-foul view toward the preservation of error may come in handy for the good guys one day. Keep an eye out.

Contributors: Nicole Kaplan, Jeff Ertel, Brian Mendelsohn, Suzanne Hashimi, Stephen Johnson, Tom Hawker, Rick Holcomb, and Natasha Silas.

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