Eleventh Circuit Court of Appeals - Published Opinions

Thursday, August 25, 2016

Phillips: Civil writ of bodily attachment is valid warrant under Fourth Amendment

In U.S. v. Phillips, No. 14-14660 (Aug. 23, 2016), the Court held that, under the Fourth Amendment, the police can validly arrest a person based on a civil writ of bodily attachment for unpaid child support. The Court noted that the Fourth Amendment requires a warrant to be “particular, sworn, and supported by probable cause.” The Florida writ in Phillips’ case met these requirements because it issued only after a person was found liable by a preponderance of the evidence for civil contempt for failure to pay child support. The Court rejected the argument that the warrant must be based on a crime, as opposed to a civil offense, pointing out that bench warrants based on civil contempt have been held not to present a problem under the Fourth Amendment. The Court also noted that even if material witness warrants might not satisfy the Fourth Amendment, this would not affect the decision because writs of bodily attachment, like bench warrants, are based on a “violation of law” – here, civil contempt. Turning to sentencing, the Court held that Phillips had waived his challenge to his 15-year sentence as an armed career criminal, because his plea agreement stated that he understood that the district court “must” impose a sentence of no less than 15 years, and at sentencing he affirmatively asked the district court to sentence him to 15 years.

Friday, August 12, 2016

Clay: Affirming health care fraud convictions

In U.S. v. Clay, No. 14-12373 (Aug. 11, 2016), in a 124-page opinion, the Court affirmed convictions of defendants convicted, after a three-month trial, of filing false Medicaid expense reports. After a length recitation of the facts, the Court rejected challenges to the sufficiency of the evidence. The Court found “abundant” evidence of false expenses, noting that the firm’s own forensic accountant testified that reported expense amounts were false. The Court found that Florida’s “80/20” law, and implementing contracts, mandated that 80% of the premium paid to a health plan must be expended for health care services, and could not count as administrative expenses or overhead. The defendants submitted false reports to avoid these mandated requirements, and knew their reports were false. The Court also affirmed the convictions for making false statements to federal agents. The Court also rejected a challenge to jury instructions. The defendants argued that the jury instruction regarding their “deliberate indifference to the truth” lowered the standard to recklessness, instead of an intent to defraud. The Court found that the instruction linked “deliberate indifference” to “intent to defraud.” Further, the trial proceeded under a theory of actual knowledge rather than deliberate indifference. The Court also rejected the defendants’ challenge to the district court’s ruling that their compensation could be admitted in evidence. The Court noted that the district court instructed the jury that the defendants’ wealth had nothing to do with their guilty, but was admitted only to show their “financial motive” to commit the charged frauds. The Court also rejected a challenge to the admissibility of a restated financial statement, generated while the company was under investigation.

Thursday, August 11, 2016

Parker: Baptiste bars SOS grant for applicant whose application was previously denied

In In re: Leslie Parker, No. 16-13814-J (Aug. 10, 2016), the Court reversed its earlier grant of an application to file a second or successive § 2255 motion. A member of the panel which had earlier granted Parker’s application learned of a conflict requiring recusal. As a result, the Court had to decide the request anew. Since its earlier grant, the Court had decided In re Baptiste, which held that it must dismiss an application from a prisoner, like Parker, whose prior request had previously been denied. The Court therefore now denied Parker’s application. [Rosenbaum and Jill Pryor, concurred but stood by their view that Baptiste “is incorrect as a matter of law.”].

Wednesday, August 03, 2016

Devon Chance: Granting SOS to 924(c)/Hobbs Act conspiracy applicant

In In re: Devon Chance, No. 16-13918-J (Aug. 8, 2016) (Tjoflat, Wilson, Jill Pryor), the Court granted an application for leave to file a second or successive § 2255 motion to an applicant who was convicted under 18 U.S.C. § 924(c). The Court noted that the predicate offense for the § 924(c) offense was conspiracy to violate the Hobbs Act. As in In re Pinder, the law is “unsettled” as to whether this companion conviction was valid, post-Johnson. The Court recognized that Chance received concurrent sentences on substantive Hobbs Act robbery offenses, offenses that are still valid § 924(c) predicates post-Johnson. However, the sentences were not “fully concurrent” because the $100 fines on each count were cumulative. Chance therefore had at least a pecuniary interest in the review of his sentence. Further, as in In re Davis, the terms of incarceration were not dictated by a mandatory minimum. For these reasons, the concurrent sentence doctrine that the Court applied in In re Williams did not apply here. The Court then addressed the Court’s recent statement in In re Jasper Moore that “the district court cannot grant relief in a § 2255 proceeding unless the movant . . . proves that he was sentenced using the residual clause.” Though recognizing that its own discussion of Moore was dicta, the Court stated that this statement in Moore was dicta, because it was necessary to the decision to grant an SOS application. The Court added that the statement in Moore was “quite wrong.” First, the statement implied that a district court deciding a § 2255 motion “can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record.” But cases like Descamps and Mathis are binding. If the district court determined that Hobbs Act conspiracy does not qualify under the elements clause, in light of Descamps and Mathis, then that would be conclusive proof that the defendant was wrongfully sentenced under the residual clause – regardless of whether the district court “uttered the magic words ‘residual clause.’” Second, eligibility under § 2255 should be based solely on “a chance remark.” Quoting Rivers v. Roadway Express, Inc., the Court noted that a judicial construction of a statute is an authoritative statement of what the statute meant “before as well as after the decision of the case giving rise to that construction.”

Friday, July 29, 2016

Nejad: No habeas relief for Georgia inmate who claimed he was not told about his right to testify

In Ali Nejad v. Warden, No. 15-14856 (July 27, 2016), the Court denied habeas relief to a Georgia inmate who claimed that his trial lawyers in his Georgia state rape trial were ineffective in failing to advise him that he could testify in his own defense despite counsel’s advice to the contrary. The Court noted that the transcript of the trial did not indicate that the trial judge informed Nejad of his right to testify. Nonetheless, noting that there were gaps in the transcript, and crediting the prosecutor’s testimony that she definitely remembered that Nejad was informed by the judge of his right to testify because it was her first rape trial and she was getting ready to cross-examine the defendant and was relieved when he answered the judge that he would not testify, the Court deferred to the State trial court’s determination, in the face of conflicting testimony, that Nejad knew he could testify regardless of the advice of his attorneys.

Thursday, July 28, 2016

Jones: Denying SOS based on Baptiste

In In re Kiwanis Jones, No. 16-14053-J (July 27, 2016), the Court denied an application to file a second or successive § 2255 motion, because the defendant had previously filed a “nearly identical Johnson-based” application that had been denied. Based on Baptiste, the Court was bound to dismiss the latest application, because it raised the same claim that was previously rejected. [Judges Rosenbaum and Jill Pryor, concurring, stated that Baptiste was wrongly decided.]

Wednesday, July 27, 2016

Bradford: Denial of SOS application is jurisdictional

In In re Brad Bradley Bradford, No. 16-14512-J (July 27, 2016), after the Eleventh Circuit denied a post-Johnson application for leave to file a second or successive § 2255 motion, Bradford filed another application, presenting the same claim. The Court held that it lacked jurisdiction to consider an application “premised exclusively on a claim that was presented in a prior application.” The Court recognized that it might have previously ruled on applications presented a second time. But these cases did not address the jurisdictional bar, and were therefore not binding on the jurisdictional issue. Citing Anderson and Baptiste, the Court held that a dismissal of a successive application is “with prejudice.” The Court noted the caselaw that holds that when it denies a successive application, the district court lacks jurisdiction to consider the § 2255 motion. The Court denied Bradford’s application. The Court stated that the grant of certiorari in Beckles was not a basis for granting a successive application, or holding a case in abeyance. The Court stated: “If the Supreme Court decides in Beckles, or some other decision, that the residual clause of § 4B1.2(a)(2) of the career offender provisions of the guidelines is unconstitutional, Bradford will have a new claim under § 2255(h)(2) for which he can then file an application to file a second or successive § 2255 motion. It will not be a Johnson/Welch claim, but a Beckles claim.” The Court therefore denied Bradford’s request that his application be held in abeyance pending Beckles.

Moore: SOS application granted when it was "unclear" whether sentence rested on residual clause

In In re Jasper Moore, No. 16-13993-J (July 27, 2016), the Court granted an application for leave to file a second or successive § 2255 motion because it was “unclear” whether at his sentencing the district court had relied on the residual clause of ACCA. The Court noted that this was merely because Moore had made a prima facie showing; in the district court, he would bear the burden of proving that his sentence was unlawful. A movant cannot meet this burden “unless he proves that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence.” [Query: Would one way a movant be able to meet his burden be by showing that his prior conviction does not qualify under the elements or enumerated clauses, and that his sentence must therefore rest on the now-unconstitutional residual clause?]

Sams: SOS denied for 924(c) offender with predicate 2113(a) bank robbery

In In re Sams, No. 16-14515-J (July 26, 2016), the Court denied an application for leave to file a second or successive § 2255 motion for an applicant who challenged his conviction under 18 U.S.C. § 924(c). The predicate offense for Sams’ 924(c) conviction was a bank robbery “by force and violence, or by intimidation,” in violation of 18 U.S.C. § 2113(a). The Court held that a bank robbery “by intimidation” qualifies as a crime of violence, because it involves the threat to use physical force. The Court also rejected Sams’ challenge to his career offender Guideline designation. The Court pointed out that even if Johnson were to apply, retroactively, to the career offender guideline, this would not benefit Sams, because he had two prior convictions that qualified under the elements clause.

Birge: Affirming imposition of "vulnerable victim" enhancement

In U.S. v. Birge, No. 15-15042 (July 26, 2016), the Court affirmed the imposition of a “vulnerable victim” sentence enhancement, pursuant to U.S.S.G. § 3A1.1(b)(1), for a chief clerk of a Georgia probate court who used access to bank accounts through probate court to conservatorships of minors and incapacitated adults to write herself checks. Birge argued that the “vulnerable victim” enhancement should apply, because Eleventh Circuit caselaw indicated that the guideline applied to persons who “target” a vulnerable victim, and there was no evidence that she had done so. The Court pointed out that while an older version of the Guideline had used the word “target,” it was amended to now read that it applies to a person who knew or should have known that the victim was vulnerable. The Court found that its prior discussion of “target” was dicta, because none of them involved a defendant who was not eligible for the enhancement unless he targeted victims. Here, because Birge knew or should have known that the victims of her scheme were vulnerable, the enhancement applied.