Eleventh Circuit Court of Appeals - Published Opinions

Friday, January 24, 2020

Bane: Affirming Denial of Coram Nobis Challenge to Forfeiture Order Due to Procedural Default

In United States v. Bane, No. 18-10232 (Jan. 24, 2020) (William Pryor, Martin, Sutton (6th)), the Court affirmed the denial of a writ of coram nobis.

After their convictions became final, the defendants petitioned for a writ of coram nobis, challenging their forfeiture judgment in light of the Supreme Court’s ruling in Honeycutt.  Initially, the Court found that the defendants had standing because they were challenging the preliminary (not final) forfeiture order.  As to the merits, the Court assumed, without deciding, that coram nobis could be used to challenge a forfeiture order and that Honeycutt applied retroactively.  The Court affirmed, however, because the defendants procedurally defaulted their claim by not raising it on direct appeal.  The Court found that a Honeycutt error is not jurisdictional because the indictment charged a federal offense; even if the forfeiture allegations were insufficient, that went only to the sentence.   The Court also found that the cause and prejudice exception to procedural default did not apply: they failed to show cause because their claim was not sufficiently novel just because Honeycutt had not yet been decided; and they failed to show prejudice either, as one defendant was responsible for all the proceeds, and the government could have obtained the same property against the other defendant through restitution.

Judge Martin concurred in part and dissented in part, opining that the error was jurisdictional as to one defendant in light of the Supreme Court’s decisions in Welch and Montgomery v. Louisiana.  She reasoned that, as to the one defendant, the forfeiture amount exceeded the statutory limits.

Wednesday, January 15, 2020

Mancilla-Ibarra: Probable Cause Supported Arrest, and Safety Valve Did Not Apply Based on Failure to Disclose All Truthful Information

In United States v. Mancilla-Ibarra, No. 17-13663 (Jan. 15, 2020) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's drug conviction and sentence.

First, the Court upheld the denial of a suppression motion, finding that probable cause supported the defendant's arrest based on information provided by an informant.  The Court found that, under the totality of the circumstances of that case, the informant's tip was shown to be veritable, reliable, and corroborated.

Second, the Court upheld the refusal to apply a two-level reduction under the safety-valve provision in 2D1.1(b)(17).  At issue was whether the defendant satisfied the fifth criteria for truthfully disclosing all information about the offense.  To show that the defendant failed to do so, the government relied on testimony by an agent with only second-hand information who had no personal knowledge about the defendant's interview.  That equivocal and uncorroborated account was not sufficiently reliable.  However, the defendant bore the burden to prove that he disclosed all truthful information, and the record undermined his assertion that he made only two drug deliveries.

Thursday, January 09, 2020

Justos: Naturalization Form Containing Adjudicator's Notes Was Admissible and Did Not Violate Confrontation Clause

In United States v. Santos, No. 18-14529 (Jan. 9, 2020) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendant's convictions for naturalization fraud.

The Court rejected the defendant's argument that it was error for the court to admit a naturalization application form containing written notations made by the interviewing immigration officer who did not testify at trial.  The Court first found that the form was admissible non-hearsay as an adopted admission by an opposing party, because the applicant adopted the form by signing it at the end of the interview.  The Court also found that the form was admissible under the public records exception to hearsay because it was part of the A-file, immigration officers routinely complete the form during non-adversarial interviews with applicants, and the primary purpose of the form is to administrate the naturalization process, not criminal prosecution.  The Court also rejected the defendant's Confrontation Clause challenge because the application form was not testimonial.  It was a public record produced as a matter of administrative routine for the primary purpose of determination eligibility for naturalization, not for the purpose of criminal prosecution.

The Court also found no abuse of discretion by permitting the government to elicit testimony about the inculpatory portion of a post-Miranda statement but prohibiting the defendant from eliciting further testimony about the exculpatory portion.  The rule of completeness did not apply because the exculpatory part of the statement did not explain or clarify the inculpatory part of the statement.

Finally, the Court found that there was sufficient evidence to support his conviction for unlawfully procuring naturalization, finding that his false statements were knowingly made and material to procuring naturalization.   

Brown: Upholding Dismissal of Juror Based on Religious Beliefs

In United States v. Brown, 17-15470 (Jan. 9, 2020) (Rosenbaum, William Pryor, Conway), the Court affirmed the defendant's convictions.

The main issue was whether the district court abused its discretion by dismissing a juror who told other jurors that the Holy Spirit told him that the defendant was not guilty.  In a lengthy opinion, the Court concluded that there was no abuse of discretion because the district court made a finding that the juror meant that the Holy Spirit told him to acquit regardless of the evidence, not that the Holy Spirit would guide him in his review of the evidence.  The Court also rejected the defendant's arguments that the district court lacked a sufficient basis to inquire into the juror's statements, that the court's inquiry violated Rule 606(b), and that the court's dismissal violated the Religious Freedom Restoration Act, the juror's First Amendment rights, and the Sixth Amendment right to a unanimous verdict.

Judge Conway concurred but wrote separately to emphasize that the majority opinion did not mean that a juror could not use religious beliefs to seek guidance when applying the law to the evidence in the case.  Rather, the Court held only that the district court did not abuse its discretion by finding that the juror was not following the court's direction to consider the evidence.

Judge Pryor issued a 60-page dissent, criticizing the majority for mischaracterizing the juror's comments and for making it too easy to disqualify jurors who hold religious beliefs.

Monday, January 06, 2020

Oliver: Georgia's Terrorist Threats Offense Is Not a Violent Felony Under the ACCA

In United States v. Oliver, No. 17-15565 (Jan. 6, 2020) (Wilson, Jill Pryor, Tallman (9th)), the Court held that a Georgia offense for making terroristic threats is not a violent felony under the ACCA's elements clause.

The Court concluded that the Georgia statute was indivisible under Mathis because the statute, state case law, pattern jury instruction, and record of conviction did not make clear whether the alternatives were means or elements.  Therefore, the Court resolved the inquiry in favor of indivisibility.  And the Court concluded that the statute was categorically overbroad because it could be committed by threatening or burning property, which did not have as an element the threatened use of force against a person.

Judge Tallman dissented.  He agreed that threatening to burn a building did not satisfy the elements clause, but he opined that the statute was divisible based on its structure, state court decisions reflecting charging practices, and the indictment in the defendant's case (which was not in the record but was quoted by the government and PSI).  And he opined that threatening to commit a crime of violence with the purpose of terrorizing another, the section under which the defendant was charged, satisfied the elements clause because it necessarily required a threat against a person.

Friday, January 03, 2020

Hill: Exclusionary Rule Inapplicable in Revocation Proceedings

In United States v. Hill, No. 19-10647 (William Pryor, Jill Pryor, Marcus) (per curiam), the Court held--without oral argument--that the exclusionary rule does not apply in supervised release revocation proceedings.

In so holding, the Court joined six other circuits that have reached that conclusion.  The Court relied primarily on a Supreme Court decision declining to extend the exclusionary rule to state parole revocation proceedings.  The defendant failed to present any argument on appeal for why that decision did not apply equally to the supervised release context.  

Monday, December 23, 2019

Bankston: Selling Body Armor Is Not a "Use" of Body Armor Under USSG 3B1.5

In United States v. Bankston, No. 18-14812 (Grant, Martin, Newsom), the Court vacated the defendant's sentence based on the miscalculation of his guideline range.

Specifically, the Court accepted the defendant's argument, raised for the first time on appeal, that the district court erroneously applied an enhancement for the "use" of body armor under USSG 3B1.5.  The commentary explained that use of body armor required either active employment to protect the person from gunfire, or use as a means of bartering.  The defendant, however, did no more than sell body armor for money, which was different than bartering, as bartering meant trading goods without the use of money.  Finding the language of the commentary clear, the Court rejected the government's reliance on legislative history and purpose.  And having found that the district court committed an error that was plain, there was not dispute that the remaining plain-error prongs were satisfied.

Friday, December 20, 2019

Vineyard: Tennessee Sexual Battery is Covered Sex Offender Under SORNA

In United States v. Vineyard, No. 18-11690 (Dec. 20, 2019) (Julie Carnes, Marcus, Kelly (10th)), the Court upheld the denial of a motion to dismiss a conviction for failure to register under SORNA.

The Court rejected the defendant's argument that his prior Tennessee conviction for sexual battery was not a covered "sex offense" under SORNA, which (as relevant here) required "sexual contact" as an element.  First, the Court held that the categorical approach (rather than a circumstance-specific approach) applied.  Second, the Court held that, based on dictionary definitions and common understanding, "sexual contact" under SORNA meant a touching or meeting of body surfaces where the touching or meeting is related to or for the purpose of sexual gratification.  The Tennessee offense required such contact, and the defendant did not argue otherwise.  Third, the Court rejected the defendant's argument that "sexual contact" under SORNA instead incorporated a broader meaning from an unrelated federal statute.  Finally, even if the Court used that broader meaning, it concluded that the Tennessee offense satisfied it.  The Court rejected as "border[ing] on the absurd" the defendant's argument that the Tennessee offense was overbroad because it required contact with the "primary genital area" rather than just the genitals.  And the Court rejected the defendant's argument that Tennessee case law permitted the contact to be with the lower back or abdomen.