The Eleventh Circuit Board

They say a picture is worth a thousand words. But is a video worth more than a thousand images? The answer, according to the Eleventh Circuit in United States v. Kluge, is an “unambiguous” yes. Quick background refresher: In United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), the Eleventh Circuit applied the Supreme Court’s decision in Kisor v. Wilkie, 588 U.S. 558 (2019), and held that if the text of a sentencing guideline is unambiguous, a court should not consult the guidelines commentary at all. In Kluge, the defendant was convicted of possessing child pornography videos. Under U.S.S.G. § 2G2.2(b)(7), his offense level would increase if the crime involved 10-149 images (2 levels), 150-299 images (3 levels), 300-599 images (4 levels), or 600+ images (5 levels). How do we count videos? Traditionally, the guideline commentary (application note 6(B)) supplied the answer: Each “video, video-clip, movie or similar visual depiction shall be considered to have 75 images.” No more. Consider that provision deleted. The Eleventh Circuit panel held that the word “image” unambiguously refers to each “frame” in a video. Even the government (?!) argued that this rule would obviate subsection (b)(7) because the “possession of almost any video would ‘vault the offender to the top of the range.’” Too bad, the panel said, because the image table was enacted by Congress to account for videos, and Congress meant what it said. This case makes clear that Dupree is a double-edged sword—be wary that your clients don’t get cut. [By Sean Young].

Francisco Louis appealed his Hobbs Act robbery convictions claiming both statutory and constitutional speedy trial violations. He was arrested during the COVID-19 pandemic and, predictably, indictment and trial delays followed. Specifically, Louis was charged in May 2020, transferred to federal prison for his initial appearance in January 2021, but not arraigned until May 2021. What happened between January and May? The government moved for four unopposed continuances due to the pandemic. More pandemic delays ensued, and Louis’s trial was finally scheduled to begin in August 2021—but Louis himself moved for three additional continuances. The trial began in March 2022. On appeal, Louis challenged the district court’s denial of his speedy trial motions. In United States v. Louis, the Eleventh Circuit held that pursuant to 18 U.S.C. § 3162(a)(2) Louis waived his statutory speedy trial claim because although he (not counsel) filed a speedy trial motion to dismiss prior to trial, it was deemed invalid under the district’s local rules; he was represented by counsel and thus could not act pro se. Constitutionally, Louis could still get relief if his trial was unreasonably delayed, which depends on (1) length of [the] delay; (2) the reason for the delay; (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. To win relief, Louis needed to show actual prejudice because the first three factors did not weigh heavily against the government. Unfortunately, he could not show any prejudice at all. In fact, the court noted that the delay likely improved his defense. Careful with those continuance motions. [By Takiya Wheeler].

For anyone who has been frustrated with Judge Thrash empaneling anonymous juries, United States v. Touray is the case for you. Touray was charged with conspiracy to traffic marijuana, illegal reentry, and firearm counts. The trial court sua sponte informed the parties that it would empanel an anonymous jury, citing “in cases involving drugs and money laundering, that’s a sufficient matter of concern to the public to justify . . . using an anonymous jury.” On appeal, the Eleventh Circuit held that this was error, but found the error harmless. “In general, the court should not order the empaneling of an anonymous jury without (a) concluding that there is a strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.” The factors that could lead the court to protect the jury are: (1) the defendant is involvement in organized crime; (2) the defendant or his group have the capacity to harm jurors; (3) the defendant made past attempts to interfere with the judicial process; (4) if convicted, the defendant would face a lengthy incarceration and substantial monetary penalties; and (5) extensive publicity could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment. The district court in Touray erred because it failed to focus on the specific dangers to these jurors and failed to protect the defendant’s presumption of innocence. However, the error was harmless because the district court minimized the prejudicial effects to the defendant, the parties selected an unbiased jury through voir dire, and the court and parties offered the jurors a neutral reason for their anonymity. [By Wes Bryant].