The Eleventh Circuit Board

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Michael Stapleton was a coyote who brought three boatloads of undocumented immigrants from the Bahamas to Florida. The first and the last trips (nine months apart) were charged, and the middle trip was uncharged conduct that came in at trial as Rule 404(b) evidence. In US v. Stapleton, the panel spilled 22 pages worth of ink slapping down several unremarkable issues―no speedy trial problem caused by extradition delay, the two indicted trips were properly charged as two separate conspiracies, Rule 404(b) applied well to the middle trip, and the government may properly indict the conduct in three counts because the conduct violated three statutes. The most interesting part of the case comes in a footnote at the end of the opinion. The panel found that a guideline enhancement for possession of a firearm was appropriate because a witness testified that Stapleton had a firearm in his waistband during the uncharged middle trip. Even though the two charged trips were separate conspiracies, the middle trip was part of a common plan or scheme, and thus, it was relevant conduct worthy of the firearm enhancement.

In US v. Watkins, a father/son duo solicited millions of dollars of investments from wealthy, famous people, including Charles Barkley. Among other misrepresentations, the pair told investors that the loans would be used for business purposes while emails showed that the funds were actually intended (and later used) for personal expenses. The pair challenged their wire-fraud convictions, cited the Eleventh Circuit’s rule in US v. Takhalov, and argued that the evidence showed at most an intent to deceive―in order to induce investors into an otherwise fair deal―rather than an intent to harm investors. The panel disagreed and held that the lies about how the funds would be spent affected the nature of the bargain, and were sufficient to sustain the wire fraud convictions.

In U.S. v. Stowers, the panel weighed, and rejected, three issues of first impression concerning Title III and the interception of wiretap communications. First, the panel held that Title III does not require a judge to issue a separate sealing order, so long as the recordings are “sealed under his directions,” including here a tamper-proof bag with his signature and an unbroken seal. Second, there was no improper delay in sealing the records ten days after the wiretap ended, especially because the government acted in good faith and the Supreme Court once excused a 118-day delay due to a misunderstanding of law. Finally, the Title III warrant, signed by a Georgia state court judge, authorized intercepts of calls made out of state. Because Georgia law provides that an intercept occurs both at the listening post and at the location of the targeted phone, the warrant properly authorized agents to capture conversations between speakers outside Georgia, so long as the agents’ listening post was within our state.

A court sentenced Travis Butler to life in prison after he pled guilty to enticement of a minor to engage in sexual activity and production of child pornography. On appeal Butler argued that the life sentence―after an upward variance from a range of 300-365 months―was substantively unreasonable. In US v. Butler, the panel affirmed the sentence because Butler’s criminal history included drug convictions and lewd-and-lascivious battery for impregnating a 12-year-old; because he once, at the age of 27, impregnated a 15-year-old; and because the government could have pursued a mandatory life sentence under 18 U.S.C. § 3559(c), the federal three-strikes statute, but choose not to.

Devon Cohen ran a stop sign in Tampa. He did not have a valid driver’s license and the Enterprise rental car was rented not by him, but by his girlfriend’s mother, who gave him permission to use the car. The police officer performed a traffic stop, impounded the car, searched it, and found a firearm. Did Cohen have standing to challenge that search under the Fourth Amendment? District court: No, he is an unlicensed and unauthorized driver. Eleventh Circuit: Wrong, he had standing. It is irrelevant that a driver is unlicensed, so long as he is in control of the car and drives it with permission of the lawful owner or, in this case, renter. (Alas, although Cohen won the standing battle, he lost the Fourth Amendment war because the impound search was lawful.)

The Georgia definition of cocaine includes a substance known as ioflupane. The federal definition of cocaine does not. (Congress created the carve out because ioflupane can mitigate the symptoms of Parkinson’s disease.) This categorical mismatch likely means that Georgia cocaine convictions no longer qualify as serious drug offenses under the ACCA or controlled substance offenses under the sentencing guidelines (e.g., U.S.S.G. § 2K2.1 or the career-offender provision). Or so we say. And the Eleventh Circuit has now made plain that we are right. In US v. Jackson, an ioflupane mismatch between the Florida and federal cocaine statutes led the panel to declare that a Florida PWID cocaine conviction is categorically not an ACCA serious drug offense. The state definition of cocaine at the time of Jackson’s state conviction included ioflupane (one variation of cocaine), while the federal definition of cocaine at the time of Jackson’s federal firearm offense did not include ioflupane. One note of caution: On the heels of the opinion, a judge of the Eleventh Circuit withheld the mandate. Then the Alabama, Georgia, and Florida attorneys general filed an amicus brief in support of a petition for rehearing, yet that petition never came―the government chose not to file it. The en banc Eleventh Circuit may choose to take on the issue anyway. Only time will tell.

Contributors: Brian Mendelsohn, Caitlyn Wade, Carmen Brooks (twice!), Wes Bryant, and Matthew Dodge.

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