The Eleventh Circuit Board

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We begin with a splash of good cheer. The en banc Eleventh Circuit has vacated the panel opinion in US v. Garcon and will rehear the case later this year. In the First Step Act, Congress amended the safety-valve provision, 18 U.S.C. § 3553(f)(1). The amendment permits a judge to ignore a mandatory minimum in a drug case so long as a defendant does not have (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense. What is the meaning of “and”? In the Ninth Circuit, “and” means what your English teacher says it means. A defendant is disqualified for safety-valve relief only if all three prongs apply to him. But here at home, the Garcon panel held held that (surprise!) “and” means “or.” One prong is enough to bar relief. With the circuit split, and now the en banc order, the Garcon panel’s curious grammatical rule is in jeopardy.

On to the new published opinions:

A genuinely held religious belief is “not a get out of jail free card” under the Religious Freedom and Restoration Act (“RFRA”). In US v. Grady, members of the Catholic Plowshares protest movement traveled to a nuclear submarine base, cut a hole in the security fence, sprayed graffiti messages, splashed blood (their own, uh, gross), and put up crime-scene tape. At trial, they raised a First Amendment defense under RFRA, and lost. The panel affirmed the convictions. Yes, the religious beliefs were sincerely held and the government substantially burdened those beliefs, so the defendants made a prima facie case of a RFRA violation. However, because national security is a compelling government interest and these prosecutions were the least restrictive means of addressing the incursion onto the base, the convictions must stand. One side note: In a conspiracy like this, each participant’s restitution amount will include the foreseeable acts of her co-conspirators.

Anthony Moore serves a prison term of ten years (the statutory maximum) and, when he’s finished, begins a three-year term of supervised release. The court revokes supervised release once, twice, and, finally, three times. At each revocation hearing, the court imposes a fresh prison term (six months, then 18 months, then another 18 months, for a total of 42 months in prison), and yet more supervised release. Wait, doesn’t that violate Apprendi and Haymond? Eleventh Circuit: No, maybe, it’s complicated. In US v. Moore, the panel generated three different opinions. First, all three judges agree that a court must aggregate revocation sentences in determining whether you can re-impose another term of supervised release under 18 U.S.C. § 3583(h). Put another way, once the judge’s prison sentences add up to the statutory maximum supervised release term (three years here), the court may not impose more supervision. But what about the prison terms? The majority held that the court did not plainly error when it imposed aggregate revocation prison sentences of 42 months, on top of the original statutory maximum, although the statutory maximum supervised release term was only 36 months. This was too much for Judge Newsom, who wrote in a partial dissent that aggregate prison time cannot exceed the statutory maximum on the original offense plus the statutory maximum supervised release term. Here the court overshot that number by six months. But the entire panel is out of step with a plurality of the Supreme Court, which has written that the aggregate prison terms for the original crime and future revocations cannot outstrip the statutory maximum for the original offense.

A mother takes sexually-explicit photographs of her children and sends the images to the father for his sexual gratification. Ugly facts, but wait, a psychologist says the mother is intellectually deficient and that intellectual disability, coupled with a history of her own victimization, places her “in a position of extreme vulnerability without the necessary protective support to protect herself and her children.” At trial, defense counsel offers this expert opinion not as evidence of “insanity,” but simply to negate mens rea. The district court rejects the evidence. Eleventh Circuit: Nice try, but no. In US v. Litzky, the panel criticized the effort as a “dangerously confusing theory of defense more akin to justification and excuse than a ‘legally acceptable theory of lack of mens rea.'” Yet Judge Jordan, in a concurrence, offered us a practice tip. It’s difficult, he said, to craft expert testimony to negate mens rea while also steering clear of Federal Rule of Evidence 704(b)’s prohibition against expert testimony on the ultimate issue of a defendant’s mental state. “Threading th[is] needle . . . involves very difficult line drawing.” “Maybe the answer is that, in a case involving a specific intent crime, an expert can testify as to the ‘typical effect’ of a condition on a ‘person’s mental state’ and allow the jury to draw (or not draw) the ultimate inference as to the defendant’s intent (or lack thereof).” Yes, next time, let’s give that a try.

Contributors: Nicole Kaplan and Natasha Perdew Silas.

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