The Eleventh Circuit Board

The BNB Pop Quiz:

1: How much proof must a defendant show the court before he may argue to the jury that an alternative perpetrator committed the crime?

2: What needs to exist for the government to “make a federal case” out of something that seems like it should be handled by the state?

3: Does post-theft violence convert a mere theft into a robbery under the Hobbs Act, a statute that requires the use of force?

The Latest Eleventh Circuit Opinions:

A jury convicted the Starr brothers of a murder-for-hire scheme, per 18 U.S.C. § 1958, to kill one brother’s ex-wife. The Starrs appealed, arguing that the district court infringed on their constitutional right to present a complete defense by preventing them from introducing evidence that someone else, a fellow named Michalski, committed the crime. In United States v. Starr, the Eleventh Circuit rejected the claim because the proffered evidence did “not sufficiently connect the other person to the crime.” Michalski had a credible alibi and the Starrs had not provided evidence that Michalski hired someone else to kill the wife. If the Starrs’ evidence was admitted, the panel believed, it would have misled the jury. Notably, Judge Jordan wrote a concurring opinion explaining that if he “were writing on a clean slate, [he] might reach a different conclusion.” From Judge Jordan’s perspective, a defendant should not have to prove or even raise a strong probability that the alternative perpetrator committed the offense because the focus should be on whether the evidence tends to create a reasonable doubt as to his guilt. He even cited an 1891 Supreme Court decision, Alexander v. United States, to provide what he argued was a better standard: “Third party perpetrator evidence can be excluded if it is so remote or insignificant as to have no legitimate tendency to show that the third party could have committed the murder.” [By Melissa McGrane].

A father, son, and neighbor, the men who killed Ahmaud Arbery in Glynn County, Georgia, appealed their federal convictions for attempting to kidnap Arbery and interfering with his civil rights, claiming insufficient evidence. Perhaps unsurprisingly, the Eleventh Circuit, in United States v. McMichael, affirmed their convictions. It was hardly a question for the court that the men’s overtly racist text messages, social media posts, and private conversations proved they chased down Arbery on a public road—in their pickup trucks—and killed him because of his race. The real debate involved what is often overlooked as a “technical” element of many federal cases—interstate commerce. In a thoughtful dissent, the Northern District of Georgia’s own Judge Calvert took issue with the “overly broadening federal jurisdiction over automobiles.” The majority found that automobiles are “per se” instrumentalities of interstate commerce because people use them to travel between states. But, noting a circuit split, Judge Calvert suggested, quite prudently, that a case-by-case approach that considers the specific use of the automobile is best because it makes more sense and is probably the constitutional way to do things. Congress’s legislative authority stops short of “local criminal conduct,” and expanding federal jurisdiction to cover conduct simply because a car was involved steps over that line. If you are looking to challenge the interstate commerce element in one of your cases—and you should be—Judge Calvert’s analysis is a good place to start. [By Michelle McIntyre].

In United States v. Grable, the Eleventh Circuit addressed the issue of what constitutes robbery under the Hobbs Act, 18 U.S.C. § 1951(a). Grable was convicted of conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and using a firearm during the Hobbs Act robbery. The central question was whether force used after a theft is sufficient to constitute robbery under the Hobbs Act. The court held that for a Hobbs Act robbery, force or the threat of force must be used before or during the taking of property. Here, Grable’s co-conspirator had already secretly stolen marijuana from the victim’s home before the victim discovered the theft, before the victim tried to detain Grable, and before Grable shot the victim (and his roommate) dead. Grable’s after-the-fact use of force did not meet the statutory definition of robbery. Consequently, the court overturned Grable’s convictions for robbery and the related firearm charge, while maintaining his conspiracy conviction. Practice tip: When dealing with Hobbs Act robbery, ensure that the force or threat of force is contemporaneous with the taking of property. [By Millie Dunn].

Quiz Answers:

1: A defendant must make “some showing of a nexus between the alternate perpetrator and the particular crime with which a defendant is charged.”

2: There needs to be a nexus or element of “interstate commerce.”

3: No, post-theft violence or threats are not sufficient to elevate a theft into Hobbs Act robbery.