The Eleventh Circuit Board

In the words of Timbaland, it’s been a long time. But time (and the Eleventh Circuit clerk’s office) waits for no lawyer. Let’s catch up on our appeals court’s recent opinions.

After a traffic stop for an obscured license plate, the driver’s nervousness and drug dogs’ curiosity—or was it the officers’?—led to the discovery of 62 kilograms of cocaine. Over a dissent, the panel in United States v. Braddy blessed the stop and everything that came after. First, even if Braddy were right that the officer got it wrong on the purported traffic infraction, the officer’s interpretation of the law was reasonable. Second, the police didn’t illegally prolong the stop where their questions about the driver’s itinerary and routine computer checks took longer than it did for drug detection dogs to arrive on the scene and skirt Braddy’s car. Third—and the source of contention within the panel—the district court didn’t clearly err in crediting the officers’ testimony about what they perceived as their dogs’ alerts around Braddy’s car, despite the absence of a “final” alert and the purportedly observed behaviors happening in a “split second.” Judge Rosenbaum dissented. The district court said the dash-cam video backed up the officers, but watching it herself, “most respectfully, despite multiple attempts, I can’t see it.” As she does see it, the majority accepts the officers’ mere subjective interpretations, endorsing the type of “hunch” the Fourth Amendment prohibits and placing it beyond judicial review.

By what legal standard must the government prove that illegally obtained evidence would have been inevitably (that is, lawfully) discovered? In United States v. Watkins, the en banc Eleventh Circuit chose the preponderance-of-the-evidence standard. From now on, to establish inevitable discovery, the government must prove that the discovery was, more likely than not, inevitable. This was a win for the good guys. First, in Nix v. Williams, the Supreme Court made obvious that a more-likely-than-not standard is required. Stubbornly, the Eleventh Circuit insisted that its pre-Nix case law allowing proof by a mere “reasonable probability,” a less strict, pro-government standard, survived Nix. Second, even if we ignore Nix, preponderance of the evidence is the better standard. So what happened when the case was remanded to the original panel? The magistrate court had made factual findings and recommended the district court deny the motion to suppress based on inevitable discovery. The district court, in turn, had rejected the recommendation and, without a fresh evidentiary hearing, granted the motion to suppress. That was too hasty. In Watkins II, the panel sent the case back to the district court to either conduct an evidentiary hearing or deny the motion.

The lesson in US v. Akwuba is this―be wary of stipulations. Akwuba, a nurse practitioner, was convicted of health care fraud and distribution of controlled substances. On appeal, she argued that the court’s jury instructions violated her right to present a defense. The court mistakenly told the jury that Akwuba stipulated that the government’s expert witness (who opined that Akwuba broke the law) reviewed all the medical practice’s records, but Akwuba’s stipulation did not go that far. She expressly argued that the records were incomplete, and failed to include her handwritten notes, notes that may have proved she behaved lawfully. Reversible error? No, held the panel. Although the judge told the jury that Akwuba had stipulated to something she had not, nothing stopped Akwuba from questioning witnesses and arguing the incomplete-records defense to the jury. There was simply no “substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.”

An immigration judge ordered the removal of a Mexican citizen because he had been convicted under Georgia’s misdemeanor simple battery statute and sentenced to 12 months on probation. Did these pair of convictions qualify as “aggravated felonies”? Under the INA, a conviction counts if it is a “a crime of violence . . . for which the term of imprisonment [was] at least one year.” In Talamantes v. Attorney General, the panel began its analysis by inspecting the statutory definition of “crime of violence” under 18 U.S.C. § 16(a), the “physical force” clause. The Court determined that Talamantes’ form of simple battery, O.C.G.A. § 16-5-23(a)(2) (“Intentionally causes physical harm to another”), categorically involves the use of force and, therefore, is a “crime of violence.” (Practice tip: The alternative variety in subsection (a)(1) (“Intentionally makes physical contact of an insulting or provoking nature with the person of another”) has a more tenuous connection to “physical force,” and may not qualify). On the second question, the panel held that Talamantes, in spite of his straight-probation sentences, had nonetheless been sentenced to “terms of imprisonment of at least one year.” Come again? The state courts here used Georgia’s generic disposition form. The clunky, preprinted form does not include a box for straight probation. Instead a judge must check a box noting that the sentence is “12 months confinement” and only then may she add, by hand, that the sentence shall be served instead on probation. The panel (wrongly) read this as a suspended prison sentence. (The panel also brusquely ignored the state court’s later order “clarifying” that it meant only to impose a sentence of probation.) If it feels like you’ve heard this song before, you have. We have litigated (and lost) the issue in the past. But Jessica Stern has carried on the fight here through a certiorari petition in the Supreme Court, and Jenny Hernandez and Claire Gildard of the City of Atlanta Office of the Public Defender have filed a terrific amicus brief. Meanwhile, if you know anyone at the state courts’ printing office, beg them to change the standard form. My kingdom for a “straight probation” box!

Contributors: Joe Austin (twice!), Carmen Brooks, and Keenen Twymon.