The Eleventh Circuit Board

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Last month, the Eleventh Circuit held its biannual judicial conference at a Cobb County hotel. Justice Clarence Thomas spoke and offered this zinger: “We use stare decisis as a mantra when we don’t want to think.” Maybe we ought to quote him the next time we’re blocked by the Eleventh Circuit’s prior-panel-precedent rule?

Yet neither rain, nor sleet, nor judicial conference (nor the inevitable COVID outbreak), stayed the Eleventh Circuit from the swift completion of its appointed rounds. Its published opinions, including some invoking stare decisis, kept on coming.

Guns for me, not for you. As with so many “fundamental” rights, the federal courts’ protection of the Second Amendment seems to depend on who wants to exercise that right. In U.S. v. Jimenez-Shilon, the Eleventh Circuit rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(5) (possession of a firearm by an undocumented person). Although immigrants without legal status may or may not be part of “the people” to which the Second Amendment refers, the panel held that that Amendment codified a “pre-existing right,” a right which historically extended to some groups but not to others. That is why Congress may outlaw possession of firearms by foreign nationals without status in this country. Seven other circuits agree. And yet, Judge Newsom, through a concurring opinion, threw down an originalist challenge to the traditional Second Amendment means-ends balancing test. He opened the door to challenging restrictions on other fundamental rights, including those in the First Amendment (where, he implies, no governmental interest would ever justify suppression of speech). One must wonder, too, about the Fourth Amendment. Might Judge Newsom’s reasoning also spell doom for the dreaded good-faith exception?

Benjamin Cardozo once asked, “Is the criminal to go free because the constable blundered?” In the Eleventh Circuit, apparently not. In U.S. v. Nicholson, Nicholson argued that the district court should have granted his motion to suppress images of child pornography found on his laptop in New York. The warrant authorized a search within sixty days, but the agents did not carry out the search until six months later. The Eleventh Circuit held that the failure to execute the warrant in the original sixty-day period did not violate the Fourth Amendment because the amendment does not say that warrants contain expiration dates and includes no limits on the timing or duration of any search. The issue really is whether in the interlude between warrant and search the probable cause dissipated or went stale. Here the digital evidence on the laptop was static, and so probable cause existed indefinitely.

A Northern District of Florida jury convicted Smith of two crimes. Throughout the trial, Smith complained about the lack of venue. In U.S. v. Smith, the panel agreed that venue was improper on one count, the theft of trade secrets. Smith loves to fish and lives in Mobile, Alabama. Strikelines, a company located in Pensacola, Florida, sells the coordinates of artificial reefs in the Gulf of Mexico, reefs where the fishing is good. From his home in Mobile, Smith hacked into the company’s website, stole the coordinates, and posted them on Facebook for all the world to see. Both the Sixth Amendment and Fed. R. Crim. P. 18 require that a defendant be tried in the district where a crime is (allegedly) committed. A court must evaluate both (1) the essential conduct elements of the crime and (2) the location where the defendant committed those acts. The elements of Smith’s crime, theft of trade secrets, include the stealing of trade secrets without authorization or the obtaining of trade secrets by fraud or deception. Because Smith stole trade secrets on-line while sitting at his home in Mobile, venue is proper in the Southern District of Alabama, not the Northern District of Florida. That’s the good news. The bad news? The double jeopardy clause won’t stop the government from prosecuting Smith all over again, this time in his home district.

The wait continues. In U.S. v. Sharp, the Eleventh Circuit chose not to answer this persistent, unanswered question: Whether a Georgia robbery conviction is categorically an ACCA violent felony. The district court (Judge May) had sentenced Sharp on an 18 U.S.C. § 922(g)(1) crime without the ACCA enhancement because (1) she agreed that Georgia robbery is not a violent felony, and (2) the government elected, in light of then-binding circuit precedent, U.S. v. Oliver, not to argue that a Georgia terroristic threats conviction supplied the necessary third ACCA predicate. On the government’s appeal, the Eleventh Circuit vacated the non-ACCA sentence, remanded for the district court to substitute in the terroristic threats conviction, and ordered Judge May to impose an ACCA-enhanced sentence after all. Why? Ten days after Sharp’s sentencing hearing, the Oliver panel reversed itself and held that a Georgia terroristic threats conviction is, in fact, an ACCA violent felony. But what about the government’s waiver? The Court generally treats defense counsel’s waivers harshly, so is not sauce for the goose also sauce for the gander? Not this time. The panel excused the government’s failure to invoke the terroristic threats conviction at the sentencing hearing. It imported a new (yet seemingly narrow and rare) rule: A defendant can be re-sentenced under the ACCA where his predicate offense only became a predicate after the fact, so long as that intervening change in the law arrived before the government’s deadline (30 days) to file a notice of appeal. Although the Sharp panel punted on the Georgia robbery question, remember that no fewer than five judges in the Northern District of Georgia (and one panel of the Fourth Circuit) have held that the crime categorically falls outside the ACCA.

Contributors: Colin Garrett, Millie Dunn, Suzanne Hashimi, and Stephen Johnson.

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