Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, November 17, 2015

Kilgore: Hall IQ holding does not apply retroactively

In Kilgore v. Sec., Fla. Dep’t of Corr., No. 13-11825 (Nov. 16, 2015), the Court affirmed the denial of habeas relief to a Florida death-row inmate who claimed that he was intellectually disabled and therefore ineligible for the death penalty for his 1989 murder. In Atkins v. Virginia (2002), the Supreme Court held that the execution of the intellectually disabled violates the Eighth Amendment. In Hall v. Florida (2014), the Supreme Court held that an individual with an IQ test score between 70 and 75 or lower may present additional evidence of difficulties in adaptive functioning. Kilgore had IQ socres of 74, 75 and 76. The Florida Supreme Court affirmed his execution because the Florida IQ cutoff, pre-Hall, was 70. Kilgore claimed that he should have gotten the benefit of Hall, retroactively. The Court rejected this argument, finding that it squarely held in In re Henry that Hall merely created new procedures for ensuring that states follow the rule enunciated in Atkins. The Court rejected the argument that the actual holding of In re Henry was limited to its finding that Henry’s IQ was 78, which put Henry outside the protection of Hall. This was an alternative holding, and both alternative holdings are binding precedent.

Tuesday, November 10, 2015

Azmat: Affirming convictions of physican who prescribed drugs for "pill mill"

In U.S. v. Azmat, No. 14-13703 (Nov. 10, 2015), the Court affirmed convictions for unlawful dispensation of controlled substances, and conspiracy to money launder, of a physician who wrote prescriptions for Oxycodone to “patients” of a “pill mill.” The Court rejected Azmat’s argument that writing prescriptions did not qualify as “dispensing” drugs, citing contrary precedent, and the language of the drug trafficking statute. The Court also rejected Azmat’s challenge to the sufficiency of the evidence. As to the drug trafficking counts, the Court noted that “the patients looked like addicts or ‘zombies.’” As to the money laundering count, which charged the use of the proceeds from unlawfully dispensing controlled substances to promote the pill mill’s illegal activities, the Court noted that the patients paid for the drugs in cash, and the defendants used this cash to operate the illegal “clinic.” The Court also rejected Azmat’s Daubert challenge to the testimony of a government expert that Azmat’s prescribed controlled substances were “not medically legitimate.” The Court noted that the doctor’s expert testimony relied on published sources generally accepted by the medical community in defining the applicable standard of care. Turning to sentencing, the Court found no error in the district court’s calculation of drug quantity, which held Azmat accountable for all of the drugs he prescribed, noting the expert testimony that he did no prescribe any of the pills for a legitimate medical purpose. Finally, the Court rejected Azmat’s claim that his sentence created an unwarranted disparity in relation to the shorter sentences imposed on his accomplices, pointing out that the accomplices pled guilty, and that he was convicted of more crimes.

Tuesday, November 03, 2015

Toll: Accountant opinion testimony proper

In U.S. v. Toll, No. 13-14540 (Nov. 3, 2015), the Court affirmed fraud convictions arising out of a scheme to use a separate set of accounting statements to inflate a company’s value. The Court rejected the argument that the district court abused its discretion in allowing the company’s controller, who testified for the government, about whether he believed, when he created them, that the financial statements complied with accounting principles. Toll argued that the controller was not qualified as an expert witness. Even if some of the testimony was opinion testimony, it was admissible because it was based on the controller’s personal experience. The Court also rejected the challenge to the sufficiency of the evidence. The Court found that there was evidence that Toll knew that an accomplice was misrepresenting the financial strength of the company, and knew the other facts that were the basis for his multiple convictions.

Thursday, October 29, 2015

Chafin: Fowler has overruled Veal

In U.S. v. Chafin, No. 14-10160 (Oct. 28, 2015), the Court affirmed a conviction of a Georgia sheriff, based on checks he drew from the prison commissary account to buy lottery tickets, for federal program embezzlement in violation of 18 U.S.C. § 666, but reversed a conviction for obstructing justice by hindering the communication of information about a potential federal offense to federal officials in violation of 18 U.S.C. § 1512(b)(3). The Court rejected the argument that there was insufficient evidence that Brooks County, Georgia received more than $10,000 in federal funds, an element of § 666. The Court interpreted the statute to exclude “bona fide salary” type payments by the federal government to an entity in the usual course of business. But the federal payments to Brooks County were not salary payments, but covered operating costs associated with the witness-advocate position in the sheriff’s office. Turning to the obstruction of justice conviction, the Court noted that in Fowler v. U.S. (2011), the Supreme Court held that the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer. Reviewing for plain error, the Court found that Fowler overruled prior Circuit precedent, U.S. v. Veal. Consequently, the district court’s use of this prior Veal standard was reversible error. Had the district court applied the Fowler standard, the trial would have ended in an acquittal.

Friday, October 23, 2015

Espinosa: Unsuccessful motion for belated appeal does not toll one-year limitations period

In Espinosa v. Sec., Dep’t of Corrections, No. 14-10581 (Oct. 23, 2015), the Court held that the filing of an unsuccessful state petition for belated appeal of the denial of post-conviction relief does not toll the one-year statute of limitations for filing a federal habeas petition. The Court recognized caselaw that held that the filing of a petition for belated appeal that is granted by a state appellate court tolls the one-year limitations period. But here, the state appellate court denied the motion for a belated appeal, which put Espinosa in a “materially different” procedural posture.

Wednesday, October 21, 2015

Hernandez: Double Jeopardy doesn't preclude both forfeiture and restitution

In U.S. v. Hernandez, No. 15-11202 (Oct. 19, 2015), on a government appeal, the Court reversed the district court’s denial of the government’s civil forfeiture motion. The district court had denied forfeiture on the ground that it had also ordered Hernandez to pay restitution. But the Court noted that the district court not offset the amount of forfeiture by the amount of restitution, because both forfeiture and restitution were statutorily mandated. The Court rejected Hernandez’ argument that Double Jeopardy precluded ordering duplicative restitution and forfeiture. The Court noted that restitution is intended to make victims whole, while forfeiture is intended to punish a defendant by transferring his ill-gotten gains to the Department of Justice. In addition, restitution here was to the Social Security Administration, an entity separate from the Department of Justice.

Tuesday, October 13, 2015

Diveroli: Ovewhelming evidence defeats claim of ineffective plea advice

In Diveroli v. U.S., No. 14-11576 (Oct. 9, 2015), the Court rejected a § 2255 claim of a defendant convicted of fraud, who claimed that his attorney miscalculated his potential sentencing exposure and thereby caused him to plead guilty when instead he would have gone to trial. Diveroli claimed that his attorney told him that his sentencing exposure was 168-210 months, based on a loss amount up to $30 million, when in fact the exposure was 63-70 months under a correct loss amount, and that he would have proceeded to trial had it not been for the incorrect advice. The Court first dismissed the § 2255 appeal by Diveroli’s corporation, pointing out that § 2255 relief is limited to a prisoner in custody, and a corporation cannot be held in custody. Turning to Diverolis’ claim, the Court found that overwhelming evidence established that Diveroli was guilty of making false statements to conceal the Chinese origin of weapons he was selling to the United States Army. His defense was “patently frivolous.” Therefore, “Diveroli could not establish that it would have been rational to reject [the] plea agreement given its favorable terms and his near-certain conviction.”

Brantley: Misprison conviction affirmed

In U.S. v. Brantley, No. 13-12776 (Oct. 9, 2015), the Court affirmed the conviction of a defendant convicted of misprision of a felony, based on having concealed her boyfriend’s crime of being a felon in possession of a firearm (in an incident in which her boyfriend, Morris, shot and killed two police officers). The Court rejected Brantley’s claim that she was selectively prosecuted. A claim of selective prosecution requires a showing that it was motivated by a discriminatory purpose, and that similarly-situated individuals were not prosecuted. The Court rejected Brantley’s reliance on the fact that another person who hosted Morris was not prosecuted, pointing that two were aware of the crime at different times, and Brantley’s affirmative steps to conceal the crime through text messages and phone calls. The Court also noted the prosecution’s discretion to prosecute Brantley, pointing out that her prosecution “publicized the fact that those who conceal evidence about the capital murder of a police officer will be prosecuted.” The Court rejected the argument that her Fifth Amendment right to remain silent was violated by her prosecution, because she was free to remain silent about her own offense of fleeing the scene of a crime. The Court pointed out that Brantley was prosecuted for “affirmative acts of concealment,” not mere silence, acts such as hiding in a car and calling and texting Morris in order to conceal his crime. The Court rejected Brantley’s challenge to the sufficiency of the evidence, pointing out that she concealed the car that linked Morris to the unlawful possession of the murder weapon. The Court rejected Brantley’s challenge to the insufficiency of the jury’s special findings, pointing out that a general verdict of guilt sufficed.