The Eleventh Circuit Board

BNB Quiz Questions:

1. Is a search by a foreign law enforcement agency on United States soil subject to Fourth Amendment scrutiny?

2. Under the rule in Burrage v. US (2014), the government must prove but-for causation in overdose-death prosecutions. True or false: A death-results conviction may stand even when the government produces no direct evidence of a biological or chemical link between a defendant’s drugs and a decedent’s stash (or even his blood).

3. In litigating a pretrial motion to suppress, do details matter? Do you have to continue a motions deadline or comply with it to avoid waiving your client’s rights? Do you have to object every time the evidence is introduced to preserve your challenge to its admissibility? Do you have to fully explore everything you want on cross instead of hoping for recross?

Eleventh Circuit Opinions:

Right to hearing? No!
Motion needs ample detail,
Have questions? Too bad!

Don’t ask how long it took me to write that haiku, but let’s dive into the details, since details is what the Eleventh Circuit demands. A foreign law enforcement agency (FLEA) obtained a guy named Spearman’s IP address (the search in question) and gave it to the FBI, leading to 99 problems for Spearman (well, actually just one count of engaging in a child exploitation enterprise). The district court denied a motion to suppress without holding an evidentiary hearing and Spearman appealed. He first argued that although the Fourth Amendment doesn’t apply to searches by foreign entities on foreign soil, the FBI engaged in a joint venture with the FLEA worthy of Fourth Amendment scrutiny. But the panel, in US v. Spearman, held that the original motion failed to present sufficient detail to show a partnership between the FBI and the FLEA, despite evidence the FBI was already investigating Spearman’s website, and the FLEA used the FBI’s “offensive code” to get the IP address. Spearman next argued that use of the “offensive code” transmitted to Spearman’s computer in Alabama constituted a search by a foreign entity on United States soil, and merits Fourth Amendment scrutiny always. Since this argument was not presented below the standard of review was plain error. The panel held that Spearman did meet that high standard but implies that under a different standard (for example, if he had preserved the question below), it might have held in Spearman’s favor. In dissent, Judge Kidd pointed out the absurdity of requiring a defendant to have a fully fleshed out claim before having the opportunity to probe further at a hearing. But said the majority: Too bad! [By Olivia Murray].

A man facing his first federal trial was convicted of distributing a controlled substance, per 21 U.S.C. § 841(b)(1)(C), and sentenced to life in prison because the death of another “result[ed] from” that distribution. On appeal, he argued that the evidence was insufficient to prove the death-results element. Under the Supreme Court’s rule in Burrage v. US, 571 U.S. 204 (2014), the government must prove “but-for causation,” which applies to “harm that would not have occurred absent the conduct at issue.” This case shows how hard it is to win on sufficiency grounds in overdose-death prosecutions. In US v. Defilippis, the government produced no direct evidence that Defilippis’s drugs killed the decedent. No witness saw the transaction. No DNA. The quinine found in the drugs wasn’t even confirmed present in the decedent’s blood at a reportable level. But circumstantial evidence carried the day anyway: similar foil packaging, nearly identical chemical profiles between the drugs found on Defilippis and those found near the body, and testimony eliminating other likely sources. The panel held that a rational jury could find but-for causation from that constellation alone. For defense practitioners, Burrage remains your foundation — but this opinion signals that chemical similarity between a dealer’s supply and a decedent’s drugs can be enough, even without a confirmed biological link. [By Millie Dunn].

Timing is everything. And so is consistency! Former HHS Agent Crespo was convicted at trial of conspiracy to commit witness tampering, witness tampering, and conspiracy to obstruct justice. His roommate worked with a doctor to get prescriptions for oxycodone and then resell the pills. Crespo meddled in the investigation and did a little witness tampering. His lawyers moved to continue the trial multiple times, but not the pretrial motions deadline. So, Crespo’s motion to suppress the wiretap evidence was denied as untimely, which left him with plain-error review on appeal. Plus, the lawyers didn’t enter the wiretap application into the record. The lawyers also did not review and object to the translation of a transcript before trial and lost that objection, too. They did not object to a voicemail every time it was introduced or used. The lawyers sought to recross a government witness but were denied because the redirect stayed within the bounds of their cross. On appeal, in US v. Crespo, the panel affirmed the convictions finding either no error or no harm on all issues raised. One last note: The panel held that there is no right to a good faith instruction on obstruction and witness tampering charges. [By Nicole Kaplan].

Quiz Answers:

1. TBD, this is an issue of first impression that the panel didn’t really decide anyway! Keep those Fourth Amendment objections coming.

2. True, the evidence is sufficient where the defendant’s and decedent’s stashes had similar foil packaging, nearly identical chemical profiles, and testimony eliminating other likely sources.

3. Yes, yes, yes, and yes. On a pretrial motion to suppress, details matter a great deal. Speak up early and often.