The Eleventh Circuit Board

In a drug conspiracy trial, beware testimony by the federal agent who explains (or tries to explain) to the jury the drug business, lingo, and code words. When the agent colors outside the lines, object loudly, specifically, and repeatedly. In US v. Perry, defense counsel did not object nearly often enough to preserve the issue on appeal. Counsel’s lone, general objection (“I know he’s an expert in some of the street lingo, but some of this goes into the purview of the jury to decide what common, common phrases, common parlance means”) failed to preserve the claim; he needed to object to each line of testimony and explain why it was improper. Under under the plain error standard, then, Perry lost. Yet the opinion is a valuable treatise on this topic: What are the permissible contours of a drug agent’s expert testimony? According to the Eleventh Circuit, “[t]he operations of narcotics dealers are a proper subject for expert testimony under [Federal Rule of Evidence] 702,’ and ‘an experienced narcotics agent may testify as an expert to help a jury understand the significance of certain conduct or methods of operation unique to the drug distribution business.’” At the same time, allowing agents to interpret non-expert matters for the jury “may come dangerously close to invading the province of the jury.” Where do we draw the line? Maybe through some examples in real-life cases:

A defendant purchases firearms from straw buyers in Florida and sells them to the National Liberation Army (the “ELN”) in Colombia, a group designated by the U.S. State Department as a foreign terrorist organization. He pleads guilty to knowingly providing material support to an FTO in violation of 18 U.S.C. § 2339B(a)(1), (2). But that conviction alone, held the panel in US v. Arcila Ramirez, is not sufficient to support the guideline enhancement that applies when a defendant’s conduct involved a federal terrorism crime, per U.S.S.G. § 3A1.4(a). The enhancement requires a certain intent: “[T]he government must show that the defendant’s offense was planned to influence, affect, or retaliate against government conduct, even if that was not the defendant’s personal motive.” It is not enough simply to sell arms to a terrorist organization, because that sale may be meant to support that organization’s general criminal behavior, such as drug trafficking, rather than its anti-government terrorism. The panel vacates Arcila Ramirez’s sentence because the district court wrongly applied the enhancement without proof of intent.

A district court granted judgments of acquittal in a fraud conspiracy because although the defendants lied to investors, they did not know the full scope of their co-defendants’ “overarching fraudulent scheme.” In US v. Wheeler, the Eleventh Circuit panel reversed and articulated this rule: “[T]here must be some evidence that the defendant knew the objective of the conspiracy charged in the indictment and decided to join it.” The outcome turned on the words “the conspiracy charged in the indictment,” and the language in the indictment required neither knowledge of, nor involvement in, a higher-level conspiracy. The jury could properly infer that because the defendants made false claims to sell stock, they had joined the conspiracy described in the indictment, even if they did not know the extent of fraud perpetrated by their co-defendants.

The civil appeal in Tillis v. Brown, may have nothing to say about the criminal cases that fill our day. Or maybe it does. The majority opinion illuminates how two powerful Eleventh Circuit judges, Chief Judge Bill Pryor and former Chief Judge Ed Carnes, view those of our clients who are young, lost, and unsophisticated. The pair held that a police officer reasonably used deadly force by firing 21 shots into a car occupied by three unarmed teenagers, killing one and injuring the others. The majority opinion needlessly narrated the troubled teens’ sad biographies, as if to say “they had it coming.” In dissent, Judge Jill Pryor called out the majority for that very sin:

I am very troubled that the majority sees fit to discuss such things as Hunter’s juvenile records and criminal charges, the two boys’ previous drug use, Hannah’s parenting, and Christian’s statements outside the hearing of any officer, all of which are entirely irrelevant to the Fourth Amendment analysis. There is no evidence in the record that [Officer] Brown or any other investigating officer knew of this inflammatory information, other than [a grandparent’s] comment that Hannah had left her baby in the house with him, which was no cause for the use of force. So, the information could not have influenced the decision to shoot into the car. The majority’s inclusion of these details implies that the teens somehow had a lesser Fourth Amendment right to be free from the unreasonable use of deadly force because of them—which is appallingly untrue.

Contributors: Kendal Silas, Kimberly Sharkey, Melissa McGrane, and Matthew Dodge.