Tag Archives: eleventh 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.

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.

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

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You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional.  See Evans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012).  Well, now what can Evans do?

Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court.  If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.

A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment.  See Fed. R. App. P. 40.  The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.

If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment.   Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues.  If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.  The Rules of the United States Supreme Court may be viewed here.

Put simply, seeking discretionary review in the United States Supreme Court is a long shot.  For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.

And now the next round of waiting begins . . .

Evans v. Sec’y, Dept. of Corrections, No. 11-14498: Eleventh Circuit Holds Florida’s Death Penalty Statute Constitutional

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Florida’s criminal defense and criminal appeals attorneys who follow death penalty jurisprudence may be interested to know that the Eleventh Circuit has finally issued an opinion in Evans v. Sec’y, Dept. of Corrections, No. 11-14498, a case where the United States District Court for the Southern District of Florida found that Florida’s death penalty statute violated Ring v. Arizona,  536 U.S. 584 (2002).  Not surprisingly, the Eleventh Circuit disagreed with the District Court, and reversed the grant of habeas relief on such basis.

In support of its holding that Florida’s death penalty statute does not violate Ring, the Court first noted that the United States Supreme Court has repeatedly held that Florida’s judge-based sentencing system does not violate either the 6th or 8th Amendments.  See Evans, slip op. at pgs. 11-16 (citing Proffitt v. Florida, 428 U.S. 242 (1976); Spaziano v. Florida, 468 U.S. 447 (1984); Hildwin v. Florida, 490 U.S. 638 (1989); and, Porter v. McCollum, 558 U.S. 30, —, 130 S.Ct. 447, 453 (2009).

Second, the Court reasoned that the Florida death penalty statute differs from the Arizona death penalty statute at issue in Ring because a Florida jury renders an advisory verdict addressing the existence of aggravating circumstances, and because, inter alia, the sentencing judge must give the jury’s sentencing verdict “great weight” pursuant to Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975).  In discussing the differences between the Florida and Arizona death penalty statutes, the Eleventh Circuit also noted that in Ring and several other opinions, the United States Supreme Court has hinted that Florida’s death penalty scheme might pass constitutional muster.  Evans, slip op. at pgs. 17-25 (citing Walton v. Arizona, 497 U.S. 639 (1990); Jones v. United States, 526 U.S. 227, 250–51 (1999); and Hildwin, 490 U.S. 638).

Finally, the Eleventh Circuit noted that although some United States Supreme Court jurisprudence may cast doubt on the constitutionality of Florida’s death penalty scheme, only the United States Supreme Court has the authority overrule its own decisions.  See Evans, slip op., at pgs. 26-27 (collecting cases).  In short, because Hildwin, 490 U.S. 638, is directly on point, and has never been overruled, the Eleventh Circuit stated that it is obligated to follow Hildwin.  See Evans, slip op., pg. 30 (citing Hildwin, 490 U.S. at 640–41) (considering the procedures prescribed by Fla. Stat. § 921.141 (Supp. 1988) and holding that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.”)

Shelton v. Sec’y, Dept. of Corrections, No. 11-13515: What Next?

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In my last post, I discussed the Eleventh Circuit’s reversal of the District Court’s grant of habeas relief in Shelton v. Sec’y, Dept. of Corrections, No. 11-13515, and how the Court managed to avoid directly addressing the constitutionality issue.  Well, for those of you who are thinking that the next step will be filing a petition for writ of certiorari with the United States Supreme Court, you may want to read this article that I read this morning.  It certainly gives you a lot to think about . . .