Category Archives: U.S. 11th Circuit

Eleventh Circuit Reverses Two Cases on Sentencing Issues: United States v. Washington, No. 11-14177, and United States v. Hamilton, No. 12-10899

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If you handle Federal criminal defense cases or criminal appeals in the Eleventh Circuit, you’re well aware that the Government almost always wins in criminal appeals.  But today, I wanted to pass along two recent opinions where the Government lost on different sentencing issues.

In United States v. Washington, No. 11-14177, the Eleventh Circuit reversed a sentence because the Government failed to adduce any evidence that there were 250 or more victims as required by the section 2B1.1(b)(2)(C) enhancement of the Sentencing Guidelines.  Since the opinion is a mere 10 pages, you should take a moment to read it.  But if you don’t have time, here’s the Cliff’s Notes version: the best part of the slip opinion comes on page 9, where Judge Jordan, writing for the Court, declined the Government’s request to allow the Government the chance to prove, on remand, that there were 250 or more victims.  In so doing, Judge Jordan emphasized that despite the fact that the Government was aware that Washington specifically objected to the number of  victims charged, the Government made no effort whatsoever to prove up the number of victims.  See Washington, No. 11-14177, slip op., pg. 9.  Because the Government failed to meet its burden of proof on the contested sentencing issue, the Eleventh remanded the case to the District Court with directions for the District Court to resentence Washington to the 2-level enhancement based on his concession on appeal that the offense involved only 10 or more victims.

Next, in United States v. Hamilton, No. 12-10899, the Court reversed two District Court orders denying Hamilton’s Motions for Modification or Reduction of Sentence filed pursuant to 18 U.S.C. § 3582 (c)(2) because the District Court’s findings as to drug quantity were insufficient.  Although the opinion is a bit longer at 25 pages, it’s still a fairly quick read, as most of the opinion is devoted to a statement of the facts and procedural history.  The slip opinion’s analysis starts at page 16.  After quickly discussing the principles which govern section 3582(c)(2) motions and two of its prior decisions addressing drug quantity, the Court pointedly noted the flaws of the District Court’s previous orders, and explained the District Court’s task on remand.

Maybe it’s just me, but based on some of the opinions I’ve read over the last few months, it seems as though the Eleventh Circuit is becoming less of a rubber stamp for the Government.  Only time will tell, but I sure hope the trend continues.

Wins For the Little Guys in United States Supreme Court, Eleventh Circuit, and Florida Supreme Court

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The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants.  It’s like a hat trick for criminal defense and criminal appeals lawyers!

In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody.  Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA).  In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority.  See Millbrook, 11-20362, slip op., pg. 6.  Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability.  See id.

In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine).  On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative.  On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again.  In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand.  Too bad Hinds had to appeal twice to get the benefit of the FSA.

Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.

United States Supreme Court Accepts Cert On Case Out of Southern District of Florida: 12-464: Kaley v. United States

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If you’re a criminal defense attorney in South Florida, you’re well aware that everything is harder for you in Federal court.  Not only do your clients have a high likelihood of being detained pre-trial without bond,  but the Government might even move, pre-trial, to restrain assets which might otherwise be used to retain counsel.  In April, the Eleventh Circuit issued an opinion in United States v. Kaley which not only affirms the right of the Government to restrain  assets pre-trial, but also prohibits the defense from challenging the Government’s evidentiary support and legal theory to do so.  If you practice in the jurisdiction of the Eleventh Circuit, take a few minutes to read it.  And don’t forget to read the concurrence by Judge Edmondson, since it reads more like a dissent than a concurrence.  Overall, the opinion gives you a lot to think about in terms of the right to counsel, the right to counsel of choice, and allowing the defense a fair shot at challenging the Government’s use of power.

After reading the opinion, you might feel dejected.  After all, here’s yet another pro-Government opinion issued by the Eleventh Circuit.  But wait- there might be hope!  The United States accepted cert in the Kaley case on March 18, 2013, and issued the following Question Presented:

12-464 KALEY V. UNITED STATES
DECISION BELOW: 677 F.3d 1316
CERT. GRANTED 3/18/2013
LOWER COURT CASE NUMBER: 10-15048
QUESTION PRESENTED:
Title 18 U.S.C. § 853(e) authorizes a district court, upon an ex parte motion of the United States, to restrain an indicted defendant’s assets that are subject to forfeiture upon conviction.  The statute does not provide for a post-restraint, pretrial adversarial hearing at which the indicted defendant may challenge the propriety of the restraints.
In United States v. Monsanto, 491 U.S. 600 (1989), this Court rejected a Fifth and Sixth Amendment challenge to the restraint of an indicted defendant’s assets needed to pay counsel of choice but, in a footnote, explicitly left open the question -by then already dividing the circuits -”whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.”  Id. at 615 n.10.
Since 1989, the circuit courts have continued to wrestle with the issue, producing a firmly entrenched split among the eleven circuits that have addressed it.  Acknowledging the widespread conflict, the Eleventh Circuit held that assets needed to retain counsel of choice may remain frozen through trial based solely on a restraining order obtained ex parte, despite a defendant’s timely demand for a hearing to challenge the viability of the charges and forfeiture counts that purportedly justify the pretrial restraint.  United States v. Kaley, 677 F.3d 1316 (11th Cir. April 26, 2013) (“Kaley II”), App. 1-31.
Thus, the question presented in this petition, which would resolve a split in the circuits,
is:
When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?

Florida Governor Rick Scott’s Mandatory Drug Testing of Welfare Applicants Shot Down by Eleventh Circuit

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Ok, so this is not a criminal appeal, but I wanted to take a moment to pass along an interesting opinion issued by the Eleventh Circuit.  In LeBron v. Florida Dept. of Children and Families, No. 11-15258, the Court rejected Rick Scott’s mandatory drug testing requirement for all TANF (Temporary Assistance for needy Families–ie, welfare) applicants.

Why is the opinion so interesting, you ask?  Well, some of you may recall that this case stems out of an early decision on the part of the newly-elected Governor to require mandatory drug testing of all welfare applicants.  When Lebron applied, he refused to submit to the mandatory drug testing, and filed a motion for preliminary injunction in the United States District Court seeking to ban enforcement of the drug testing on Fourth Amendment grounds.  The District Court entered the injunction, and after DCF (ie, the Governor) appealed, the Eleventh Circuit affirmed.  In rejecting Governor  Scott’s drug testing requirements, the Court pointedly noted that “[t]here is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment,” and that “none of the State’s asserted concerns will be ameliorated by drug testing.”  LeBron, slip op. pg. 19-20.  In short, the Court concluded, “[t]he simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy.”  LeBron, slip op. pg. 20.

For those of us who may be unhappy with the Governor, this opinion gave us something to applaud.  Now that Governor Scott is up for reelection in 2014, it will be interesting to see how much back-pedaling he does with respect to his unsuccessful policy decisions.  It’s already started.  According to news reports, he’s already announced plans to expand Medicaid, and he’s announced his desire to give teachers a pay raise.  It will be interesting to see what else he’ll do in hopes of being reelected.

Eleventh Circuit GRANTS Petition for Writ of Habeas Corpus in Ricky Adkins v. Warden, Holman CF, No. 11-12380,

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I had to do a double take when I read this sentence in the opening paragraph of the slip opinion in Ricky Adkins v. Warden, Holman CF, No. 11-12380: “Because we determine that Mr. Adkins is entitled to habeas relief based on his Batson claim, we do not decide his other claims.”  I’ll warn you now, the opinion is quite long, 53 pages, but that’s including Judge Tjoflat’s 18 page dissent.  The bulk of the opinion is devoted to a discussion of the prosecutor’s repeated striking of African American venire members in violation of Batson v. Kentucky, 476 U.S. 79 (1986).  If your a criminal defense attorney with a trial coming up soon, this may be a good time to brush up on Batson issues.

Since criminal defense and criminal appeals attorneys know that it’s so rare that the Eleventh ever grants habeas relief, you might wonder what was different about this case.  Well, for starters, the 3-judge panel consisted of Judges Barkett, Tjoflat, and Martin.  Luckily for Ricky Adkins, Judges Barkett and Martin were in the majority.  Second, there were some pretty compelling facts in the record that really favored Ricky Adkins, and which showed that the trial court failed to properly consider all the relevant circumstances, as required in the third step of the Batson analysis.   The Court noted the circumstances that the trial court failed to consider: (1) the strength of Mr. Adkins’s prima facie case of purposeful discrimination; (2) the fact that the prosecution explicitly noted the race of every black veniremember (and only black veniremembers) on the jury list the state relied on in jury selection; (3) the fact that specific proffered reasons provided by the prosecutor were incorrect and/or contradicted by the record; (4) the fact that the trial court relied upon, and did not subject to adversarial testing, an affidavit from the prosecutor that was submitted after the Batson hearing; and (5) the fact that the trial court relied upon facts not part of the record, such as the trial court’s personal experience with the prosecutor in unrelated matters.  See Adkins, slip op., pgs. 21-22.

Now that Adkins’ petition has been granted, what’s the relief?  The State of Alabama gets to retry him!

Up next, the Eleventh Circuit slaps down Florida Governor Rick Scott’s controversial drug testing plan for welfare recipients . . .You can read the article from the Sun Sentinel here.

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

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I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

A Hollow Victory in Lozman v. City of Riviera Beach, Timeliness of Habeas Claims, and Disqualification of Judges Who Are Facebook Friends with Prosecutors

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It’s already mid-week, but I wanted to pass along a few things that might interest you.  Remember the guy Fane Lozman who was fighting the City of Riveira Beach over marina fees owed for his houseboat?  Well, the United States Supreme Court issued an opinion in his case, Lozman v. City of Riviera Beach, No. 11-626.  The Supreme Court reversed the Eleventh Circuit, making Lozman the victor.  Too bad the City already destroyed his houseboat.

The Eleventh Circuit recently issued an en banc opinion in Michael Duane Zack v. Kenneth Tucker, No. 09-12717, wherein the Court held that the AEPDA statute of limitations applies claim-by-claim, rather than to the petition as a whole.  If you handle a lot of habeas cases, the opinion is worth a quick read.  My least favorite part of the opinion?  Judge Carnes’ concurrence, where he ridicules the position taken at oral argument by one of the attorneys as absurd.  Ouch.

Finally, attorneys throughout the State of Florida, civil and criminal alike, might want to monitor the case of Pierre Domville v. State, 4D12-556, where the Fourth District Court of Appeal has certified a question of great public importance to the Florida Supreme Court:  “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”  An article in the Palm Beach Post can be read here.

Eleventh Circuit Issues En Banc Opinion in Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920

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The United States Court of Appeals for the Eleventh Circuit has recently released an en banc decision in the habeas appeal of Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920.  As far as Eleventh Circuit opinions go, it’s rather long at 72 pages, but considering that it’s an en banc opinion, the 72 pages seems unexpectedly short.  As one familiar with the Eleventh Circuit might expect, the majority opinion affirmed the denial of Evans’ petition for habeas corpus relief.  In so doing, the Court focused its analysis on the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), and held that even though Evans’ trial counsel performed only a minimal investigation into mitigating evidence for the penalty phase of the trial, and presented no mitigating evidence to the jury, Evans was not prejudiced because the evidence of mitigation which counsel could have presented was more harmful than helpful.  See Evans v. Sec’y, Dept. of Corrections, Slip op., pgs. 3-37.

Whether you handle criminal defense, habeas petitions, death penalty work, or federal appeals, this opinion might be worth your time to review.  Not only does Judge Jordan’s concurrence contain a good discussion of the standards of review applicable to habeas proceedings, but Judges Wilson and Martin author great dissents.  Judge Wilson’s dissent focuses on the Court’s decision to render the en banc decision at all.  If you handle federal appeals before the Eleventh Circuit, Judge Wilson’s dissent might be valuable the next time you have to draft an opposition to a motion for en banc consideration.  See Evans, Slip op. pgs. 46-49.  Judge Martin’s dissent contains a thought-provoking discussion of the role of defense counsel in death penalty cases.  In short, Judge Martin agrees with the majority that the mitigating evidence that counsel could have presented to the jury would have portrayed Evans in a bad light.  However, Judge Martin notes that the jury was already familiar with Evans’ character flaws, anyway.  And, most importantly, Judge Martin observes: isn’t it the job of death penalty counsel to investigate and present whatever mitigating evidence can be found?  See Evans, Slip op., pgs. 50-72.

Rozier v. United States, No. 11-13557: Eleventh Circuit Denies Habeas Relief Notwithstanding Government Concession

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Florida’s criminal defense and criminal appeals attorneys who are familiar with the Eleventh Circuit’s reluctance to grant habeas relief will not be surprised to learn that, unfortunately, even if the Government concedes that relief should be granted, their clients may STILL not win on appeal.  The opinion of Rozier v. United States, No. 11-13557, is just the latest example.  At a mere 23 pages, which is quite short by Eleventh Circuit standards, the opinion is a great read because you can practically see the majority and the dissent pointing their fingers at eachother.   Unfortunately for Mr. Rozier, the end result of the opinion is that he has to serve time far beyond what his sentence would have been without the erroneous career offender enhancement.  See Rozier, slip op., pg. 14 (Hill, J., dissenting).

Judge Hill’s dissent is an absolute pleasure to read.  Rather than sum up the 9 page dissent for you, I thought I should just quote a particularly eloquent portion:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.  We have repeatedly held that procedural rules deprive us of the ability to correct an enhancement that we all agree is error because it was not authorized by law when imposed.  To the petitioner, who is serving five, ten or even fifteen years more than he would be in the absence of the error, we say, “Sorry.  We know your enhancement was error, but there is nothing we can do.  Our hands are tied by procedural rules.  We cannot fix this.”

We do this in the name of “finality.”  We say we are protecting the integrity of the Great Writ; we cannot go about correcting old mistakes or no conviction or sentence will ever be final.

Of course, finality is desirable.  There was a time when there appeared to be no finality in our habeas procedures.  The rules we adopted to introduce some finality into the habeas process were long overdue.

But finality must not be our highest goal.  The Great Writ is enshrined in our Constitution because we believe that no one may be deprived of life, liberty, or property by the government in violation of law.  If a petitioner can show that he is illegally incarcerated, he is entitled to release.  Fairness requires it.  Justice is the ultimate goal in the grant of the Writ.

But we have increasingly come to define what is “just” by what our procedural rules permit.  Recently, the State of Alabama, a panel of this court, and two justices of the Supreme Court agreed that an Alabama prisoner could be put to death as the result of his lawyers – who abandoned his case – having missed a filing deadline. Our court held that we would not – could not – consider the merits of his claim due to this procedural default.  I agree with the member of this panel who dissented in the Alabama case, writing that in certain cases procedure must “yield to the imperative of correcting a fundamentally unjust [sentence].”  Seven members of the Supreme Court agreed with that view, reversing our court.  See Maples v. Thomas, 132 S. Ct. 912 (2012).

In Maples, there was no certainty that there had been error in the conviction or sentence.  In Rozier’s case, however, there is certainty.  We know that the enhancement of his sentence was error.

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.”  On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution.  As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

Clearly justice is not the intended beneficiary of these procedural safeguards.  On the contrary, the safeguards are designed to protect finality.  If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional.  In any event, I cannot join in this elevation of form over substance; of finality over fairness.

Due process is the defining virtue of our system of criminal justice.  But we should ask ourselves why.  Is it because it achieves finality?  Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant.  The goal is a correct result – not simply the provision of process.  To be sure, we do not guarantee a correct result.  But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.

This is especially true where the petitioner is in federal custody, not state custody.  We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism.  Neither of these considerations is due the erroneously sentenced federal prisoner.  It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law.  I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin.  At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

I respectfully dissent.

United States Supreme Court to Decide Circuit Split In Case Involving Application of Plain Error Standard in Criminal Appeals:Henderson v. United States, No. 11-9307

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Although the Court’s calendar is quiet for this Thanksgiving week, Florida’s criminal appeals attorneys might like to know that after Thanksgiving, the United States Supreme Court will be holding oral argument in a case involving the application of plain error standard in criminal cases where the law changes while the case is on appeal.  In Henderson v. United States, No. 11-9307, the question presented is:

Rule 52(b) of the Federal Rules of Criminal Procedure permits an appellate court to
correct a trial court’s “plain error” despite the lack of an objection in the trial
court.  In Johnson v. United States, 520 U.S. 461 (1997), this Court held that, when
the governing law on an issue is settled against the defendant at the time of trial
but then changes in the defendant’s favor by the time of appeal, “it is enough that
an error be ‘plain’ at the time of appellate consideration.”  Id. at 468.  Johnson did
not address the timing of plain-error review when the governing law on an issue is
unsettled at trial but clarified in the defendant’s favor while his appeal is pending.
The courts of appeals have split 5 to 3 on the question that Johnson left open. That
question, which this case squarely presents, is:
When the governing law is unsettled at the time of trial but settled in the
defendant’s favor by the time of appeal, should an appellate court reviewing for
“plain error” apply Johnson’s time-of-appeal standard, as the First, Second, Sixth,
Tenth, and Eleventh Circuits do, or should the appellate court apply the Ninth
Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have
adopted?

Happy Thanksgiving!