The Eleventh Circuit Board

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Federal prosecutors convinced a jury to convict Clark Downs of production of child pornography. At trial they introduced evidence that the computer hard drive to which Downs transferred images had traveled in interstate commerce, but no evidence that the camera phone with which Downs took the photos had any interstate nexus. Downs appealed the sufficiency of that evidence. In US v. Downs, the Eleventh Circuit considered whether the image transfer alone—well after the actual taking of the photos—itself constituted “production.” In ruling that it does, the panel substantially expanded the scope of conduct prohibited by the child pornography production statute and seems to have obliterated—or at least significantly blurred—the common-sense distinction between production and possession. The reasoning is troubling and the consequences are potentially far-reaching: not only does the decision expand the sources from the which the government may claim that interstate nexus arises in child pornography cases (e.g., computers and servers not at all involved in the capturing of photos and video), but it also allows prosecutors to establish that a person had the requisite intent for production long after the actual incident in which unlawful images were captured. [Contributed by Ross Brockway.]

One morning, Jessie James Turner grabbed an AR-15 rifle and shot fourteen bullets into the walls of his own apartment. He frantically called 911 to report that three armed men were trying to gain entry into the apartment. Responding officers arrived to find Turner alone in the apartment. Still holding the rifle, he immediately surrendered. By all accounts, Turner hallucinated the attack. The government later indicted him for possession of a firearm by a convicted felon. Before trial, Turner filed notice of an insanity defense. The court sent him to the BOP for a forensic psychologist evaluation. At trial, Turner offered no expert witness; to prove the insanity defense, he relied only on the lay-witness testimony of his girlfriend. The government called the BOP psychologist as an expert witness. She twice opined that Turner was able to “appreciate the nature and quality or the wrongfulness of his actions.” Oops. Under Federal Rule of Evidence 704(b), an expert witness “must not offer an opinion about whether the defendant had a mental state or condition that constitutes an element of the crime charged or of a defense.” Put another way, an expert must not opine that a defendant had the required criminal intent. In US v. Turner, the Eleventh Circuit panel unequivocally agreed that the district court erred by allowing this flawed testimony. Yet the panel affirmed the conviction anyway. It found that Turner’s insanity defense was insufficient as a matter of law, so the expert’s forbidden testimony was harmless. However, had Turner put forth his own expert testimony to establish his insanity defense, the result may well have been different. [Contributed by Allison Dawson.]

Idris Shamsid-Deen saw a rare victory in the district court—his motion to exclude evidence of a prior misdemeanor domestic violence conviction was granted, and the government was left with no way to prove that he was prohibited from possessing a firearm under 18 U.S.C. § 922(g)(9). But the victory was short-lived. In US v Shamsid-Deen, the Eleventh Circuit panel used 38 pages to clarify why the district court got it wrong. In his state DV case, Shamsid-Deen had signed a form acknowledging his right to have a jury trial, yet the form listed only two options from which to choose: (1) plead guilty or (2) plead not guilty, waive a jury trial, and have a bench trial. Given those two choices, Shamsid-Deen chose the latter. Although the district court found this problematic, the Eleventh Circuit did not. It said that Shamsid-Deen bore both the burden of producing evidence of his flawed jury waiver as well as the burden of persuading the court that the waiver had not been knowingly or intelligently made. Where the evidence could point both ways, the panel held that the tie goes to the party that did not bear the burden of persuasion: the government. Shamsid-Deen’s victory was reversed and his case remanded. The good news is that you may be able to challenge your client’s prior misdemeanor DV conviction. The bad news is that the appeals court will bend over backwards to show that even in the most ambiguous of circumstances, your client must have made a knowing and intelligent waiver of his rights. [Contributed by Ashley Martin.]

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