The Eleventh Circuit Board

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The investigation of Judge Bill Pryor’s law clerk is not over after all. Multiple news sources, including Bill Rankin of the Atlanta Journal-Constitution, reported last week that the federal Judicial Conduct and Disability Committee will “investigate the hiring of a law clerk . . . in light of allegations the clerk sent racist and xenophobic texts” when she worked at the conservative student group Turning Point. The clerk, who is scheduled to begin working for Chief Judge Pryor one year from now, has denied the accusations and in January a panel of judges on the Second Circuit cleared her and Chief Judge Pryor of wrongdoing. But the Judicial Conduct and Disability Committee noted that there are multiple witnesses whom the Second Circuit never interviewed, including “a former coworker of Clanton’s who claimed to have received the offensive message” and another “who alleged she was the only Black employee of Turning Point and was fired by Clanton on Martin Luther King Day.”

© Atlanta Journal-Constitution

On to the Court’s recent published opinions.

Let’s say law enforcement officers bang on your door, adorned with tactical body wear, with guns drawn. The officers put you in handcuffs, take you to a cruiser, remove the handcuffs, and place you inside the cruiser, where one officer sits next to you and another officer sits behind you. Sounds like you’re in custody, right? Not in the Eleventh Circuit. In US v. Woodson, the panel further eroded what it means to be “in custody” under the Fifth Amendment and Miranda. The panel used this two-step analysis: (1) Would a reasonable person have felt free to terminate the interview and leave (an objective standard); and (2) If not, do the circumstances surrounding the interview exert the coercive pressure that Miranda was designed to prevent. Here the panel held that a reasonable person―treated like Woodson was treated―would have felt free to terminate the interview and walk away. Wow! The panel then opined that even if Woodson did not feel free to leave, this interview environment (inside a police car, flanked by two armed officers) did not present the serious danger of coercion that custody entails. Double wow!

Police officers, while executing a “pill mill” search warrant at a doctor’s office found videotapes and sat down to watch them. The agents saw child pornography, immediately stopped viewing the tapes, and acquired a new child-pornography search warrant to seize and view the remaining tapes. In US v. Moon, the panel held that the brief viewing of the tapes before the child pornography warrant did not violate the Fourth Amendment. The original warrant authorized the agents to view the tapes via the drug investigation, so the accidental discovery of unrelated crimes was perfectly fine. The panel also held, on a question of first impression, that a defendant can waive his constitutional right to a public trial and that Moon did exactly that. Each time the government published sexually-explicit videos to the jury, the judge proposed to clear the audience from the courtroom, and Moon consented. Once the videos ended, Moon often failed to ask the judge to re-open the courtroom and even chose to cross-examine the witnesses in the closed courtroom.

Be careful what you ask for. That’s the lesson from US v. Thomas, where Thomas objected to a sentencing enhancement based on maintaining a premises to distribute drugs. His lawyer waffled on whether he lived at the residence for none or merely some of the conspiracy, but then asked the district judge during sentencing if it was “enough to satisfy the Court if he was just there for a small part” of the conspiracy. The Eleventh Circuit found that this “implicitly withdrew [the] objection” and “effectively admitted” to the fact that he’d lived at the subject premises during at least part of the conspiracy. Next, the panel agreed that the district court erred in believing that it was forbidden to grant safety valve relief under U.S.S.G. § 5C1.2 based on its separate finding that Thomas merited a firearm enhancement under the drug guideline, U.S.S.G. § 2D1.1(b)(1)—there is in fact some daylight between the two standards—but Thomas would have been ineligible anyway. His lawyer conceded that Thomas would not meet with the government to discuss his and others’ drug distribution.

Under the rule in United States v. Jones (11th Cir. 1990), at the end of a sentencing hearing, a district court must invite the parties to articulate objections to its factual and legal findings. In US v. Mosely, the district court violated the Jones rule and the panel remanded for a second look. Mosely was convicted of possession of a firearm by a convicted felon. At the sentencing hearing, the district court varied upward and imposed a sentence double the guideline range. The court did not discuss the 18 U.S.C.§ 3553(a) factors but instead promised to “write all this down in the judgment.” In a written statement of reasons, the court later declared that it imposed the above-guideline sentence, in part, because “[t]he [gun] was stolen from the police department.” Yet at the sentencing hearing no one presented evidence that the gun was stolen from the sheriff’s department itself. Instead, the presentence report showed at most that the sheriff’s department reported the firearm was stolen within its jurisdiction. Because the court articulated this factual finding only in the written statement of reasons, far too late for the parties to object and to correct the court’s factual mistake, the record was insufficient for meaningful appellate review.

Contributors: Byron Conway, Jeff Ertel, Joe Austin, and Keenen Twymon.

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