The Eleventh Circuit Board

Torrential Downpour, a proprietary software tool available exclusively to law enforcement, allows investigators to defeat the “choking algorithm” of BitTorrent to force a single-source download from specific IP addresses. This software is used to “connect pornographic material with a single IP address” thereby making it “easier” to establish probable cause for a search warrant. In United States v. Ewing, the Eleventh Circuit addressed the constitutional ramifications of Torrential Downpour, holding that law enforcement’s utilization of technology that merely accesses information voluntarily shared over a peer-to-peer network is not a search under the Fourth Amendment. The court rejected Ewing’s argument that by using a peer-to-peer file sharing platform, he had consented only to “sharing bits of data” from his IP address, not entire files. The panel drew an arguably important distinction between BitTorrent users who are “seeders” or “sharers” and those who are “leechers,” noting that “[o]nce Ewing enabled, or perhaps never disabled, the sharing feature on the BitTorrent network, he consented to users downloading content from his computer.” Ewing also raised a claim that the district court erred by ruling on his Federal Rule of Evidence 403 motion to exclude CP images without first viewing them. The Eleventh Circuit agreed that the district court should “ordinarily” review the evidence before ruling on its admissibility but found no reversible error because Ewing’s objection at trial had been “general” in nature (rather than focusing on concerns with specific images). [By Josh Moore]

Ever heard of “structuring” in the context of a cash withdrawal at a bank? Here’s how it works: When an individual makes a cash withdrawal from a bank in the amount of $10,000 or more within one business day, the bank must report to the federal government something called a “CTR” or currency transaction review. The Bank Secrecy Act aims to prevent individuals from circumventing a financial institution’s reporting requirements. Section 5324(a) of the Act “impose[s] criminal liability on any person who: (1) causes a financial institution to fail to file a CTR; (2) causes it to report false information on a CTR; or (3) structures transactions in an attempt to evade the CTR reporting requirement.” So, in what ways could a person “structure” bank withdrawals to evade the CTR reporting requirement? In United States v. Zayas, our appeals court shows us. Zayas, in the span of 24 hours, made cash withdrawals from three Wells Fargo branches in the amount of approximately $8,000 each. The jury found that he “structured” his transactions so as not to trigger the bank’s CTR reporting requirement. On appeal, Zayas asserted that the government failed to prove that he knew of the reporting requirement or acted with the purpose of evading it. The Eleventh Circuit disagreed: “[I]n a § 5324(a) case, a defendant’s understanding of the reporting requirements and his intent to evade them can be inferred from circumstantial evidence. Indeed, we would be rather amazed—and perhaps investigators would be quite appreciative—if individuals engaged in structuring ever wrote on bank deposit slips or in the memo lines of checks: ‘For the purpose of evading the reporting requirements of 31 U.S.C. § 5313(a).’” Zayas’s three separate withdrawals ranging from $8,000 to $8,500—just slightly below the reporting threshold—at three different bank branches is precisely the kind of abnormal pattern upon which a jury might reasonably conclude that Zayas acted with the intent to avoid the Bank Secrecy Act’s reporting requirements. [By Keenen Twymon].

Shadon Edwards appealed his 18 U.S.C. § 922(g)(1) conviction because, he asserted, his guilty plea wasn’t knowing and voluntary. Edwards didn’t know that by pleading guilty he would lose the right to appeal the denial of his pretrial motion to suppress a gun and ammunition seized from his car. He argued that the district court failed to inform him of this consequence during the plea colloquy and even suggested at his later sentencing hearing that he could pursue an appeal. In United States v. Edwards, the Eleventh Circuit rejected Edward’s argument. First, nothing in Federal Rule of Criminal Procedure 11 or caselaw requires a judge to proactively inform a defendant that by entering an unconditional plea he waives his right to appeal all non-jurisdictional matters like suppression issues. Second, unlike the defendant in United States v. Pierre, 120 F.3d 1153, 1156 (11th Cir. 1997), whose plea colloquy “unequivocally indicate[d] that Pierre intended to plead guilty on the condition” that he retained his appellate rights, Edwards did not express his intention to appeal the denial of his suppression motion until a few months later at his sentencing hearing. The Eleventh Circuit affirmed Edward’s conviction because he pled guilty with a written plea agreement that neither expressly preserved nor expressly waived his right to appeal the Fourth Amendment claim. The panel explained that a defendant who wishes to preserve appellate review of a non-jurisdictional defect (e.g., a motion to suppress evidence), while at the same time pleading guilty, can do so only by entering a “conditional plea” in accordance with Federal Rule of Criminal Procedure 11(a)(2). [By Melissa McGrane].