Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, June 12, 2018

Cobena Duenas: Evidence was Sufficient to Support Knowledge of Counterfeit Currency

In United States v. Cobena Duenas, No. 17-10509 (June 11, 2018) (Marcus, Ed Carnes, Ebel), the Court affirmed the defendant's counterfeit currency convictions.

On appeal, the sole issue was whether there was sufficient evidence to establish that the defendant knew that the transaction involved counterfeit currency.  Viewing the evidence in the light most favorable to the government, the Court found the evidence sufficient.   The Court emphasized that the defendant had substantial contacts with the organizer of the transaction and thus had ample opportunity to discover the object of the transaction; the defendant knew that the transaction was unlawful in nature; the defendant was instrumental to the success of the transaction, since he was responsible for the exchange; and, under the "prudent smuggler" doctrine, a jury could infer that the organizer would not have entrusted the defendant to close a deal for over $600,000 in counterfeit currency without telling him the details.  The Court distinguished five of its earlier sufficiency cases upon which the defendant relied, emphasizing again that he played a critical role in the actual exchange (as opposed to being merely present), had substantial contact and conversations with the organizer of the transaction, and was vested with substantial trust by the organizer.  Because the defendant was not a mere bystander or peripheral player, the Court found that the evidence was sufficient.

Friday, June 08, 2018

McLean: Immigration Judges are "U.S. Judges" for purposes of Criminal Statute Prohibiting Interference with Federal Officials

In United States v. McLean, No. 17-10741 (June 8, 2018) (Jordan, Wilson, Higginbotham), the Court upheld the defendant's conviction for threatening to assault an immigration judge with the intent to interfere with that judge's performance of official duties.

The Court rejected the defendant's argument that an immigration judge was not a "United States judge" within the meaning of the statute of conviction.  Because the statute defined that term to include U.S. Magistrate Judges, that foreclosed the defendant's argument that it was limited to Article III judges.  And the Court rejected his additional argument that immigration judges did not qualify because they are appointed by the Attorney General and serve within the Executive branch, emphasizing that they function as "judicial officers."

Thursday, June 07, 2018

Man: Upholding Arms Export Conspiracy Conviction/Sentence Over Multiple Challenges

In United States v. Man, No. 16-15635 (June 6, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed a conviction and sentence for conspiracy to export defense articles without approval, in violation of the Arms Control Export Act. 

First, the Court found the evidence was sufficient to support the conviction.  Sufficient evidence established that she entered into an unlawful agreement with a co-conspirator, and so it did not matter that a third-party rejected their export proposals.  Sufficient evidence established that the defendant and her co-conspirator willfully violated the Act because, although the government was required to prove that the defendants knew their actions violated a known legal duty rather prove a mere awareness that their actions were generally unlawful, the government met that heightened mens rea standard in this case.  And because sufficient evidence showed showed that she was predisposed to commit the offense, the Court rejected the defendant's argument that she was entrapped.

Second, the Court found no abuse of discretion in admitting evidence of conspirators' communications.  A transcript of a conversation among her co-conspirators was admissible under the hearsay exception for statements offered against the defendant made by her co-conspirator during and in furtherance of the conspiracy.  Emails sent to the defendant by an unidentified third party were also admissible under that same hearsay exception.  And communications between the defendant her co-conspirator were intrinsic to the charged conspiracy and thus were not barred by Rule 404(b).

Third, the Court found that the defendant's sentence was procedurally and substantively reasonable.  As to the former, the Court concluded that the district court did not clearly err by declining to award her a minor role reduction under USSG 3B1.2(a), because she played an essential role in the conspiracy as the sole intermediary, by helping plan and organize the crime, she understood the scope and structure of the activity, she stood to benefit from its success, and her reliance on her mental status was governed by a different guideline and unpersuasive in any event given her persistent, deliberate, and sophisticated communications with the co-conspirators.  Her 50-month sentence was not substantively unreasonable because, contrary to the defendant's argument, the district court did not rely on an impermissible factor--i.e., her Chinese national origin--because the court was entitled to reference her allegiance to China, which was relevant to the offense.

Finally, the Court found found no plain Brady error by the government's failure to provide the defendant with an email sent by one of her co-conspirators to another, which the defendant argued could have been used to impeach one of them at trial.  The Court, however, found that she knew about the email yet failed to exercise reasonable diligence in procuring it before trial.  And she failed to establish a reasonable probability that it would have changed the verdict because, if anything, it would have helped the government establish the conspiracy.

Monday, June 04, 2018

Ponton: Castro's Notice-and Warning Requirement Applies to Petitions Pre-Dating Castro

In Ponton v. Sec'y, Fla. Dep't of Corrs., No. 16-10683 (June 4, 2018) (Ed Carnes, Marcus, Ross), the Court held that the district court erroneously dismissed a state prisoner's 2254 habeas petition as an unauthorized "second or successive" petition.

Although the district court denied on the merits an earlier pro se petition back in 1988, the Court concluded that this denial did not trigger the statutory bar on unauthorized second or successive petitions.  That was because there was no indication that the district court notified the petitioner that it would re-characterize the pleading as a habeas petition and gave him an opportunity to withdraw it, as required by the Supreme Court's decision in Castro.  Although Castro was not decided until 2003, the Court concluded that Castro's notice-and-warning requirement applied to petitions filed before that decision was issued.  And, although the petitioner here filed a number of other federal pleadings, they were all dismissed without prejudice or as unauthorized second or successive petitions, and thus also did not trigger the bar on second or successive petitions.

Campbell: No Reasonable Expectation of Privacy in a Home Used as the Base of Drug Trafficking Operation

In Campbell v. United States, No. 15-13261 (June 4, 2018) (Ed Carnes, Hull, Julie Carnes) (per curiam), the Court affirmed the denial of a 2255 motion alleging ineffective assistance of pre-trial counsel in connection with a motion to suppress.

The Court first concluded that counsel's performance was not deficient in investigating and litigating the suppression motion.  The specific facts of the case showed that counsel met with the client on multiple occasions to discuss strategy, complied with the client's request to file a motion, and competently argued the facts and the law on Fourth Amendment standing.  Although counsel might have investigated more thoroughly the client's connection to the residence, and although he did not call the client and other people as witnesses at the hearing, counsel could have reasonably believed that he had enough information to establish standing, and the Court does not second guess strategic decisions about which witnesses to call.

The Court also concluded that the movant failed to establish prejudice because he could not establish a meritorious Fourth Amendment claim, since he lacked a reasonable expectation of privacy in the residence as a house guest.  That was so because he was using the residence for a commercial purpose -- as the base of a marijuana trafficking operation -- and was using it for that purpose when he was arrested.  That he also hung out and kept personal possessions there was not sufficient to transform his business relationship with the house into a social one. 

Friday, June 01, 2018

Obando: A Flag Painted on the Side of a Vessel Does not "Fly" for Purposes of the MDLEA

In United States v. Obando, et al., No. 17-11202 (June 1, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed the defendants' Title 46 convictions.

On appeal, the main issue was whether a flag painted on the side of a vessel was "flying" for purposes of making a claim of nationality under the MDLEA.  The Court concluded that it was not.  It relied on the "ordinary meaning" of the term "fly," and found that this meaning made sense in the maritime context, citing maritime treatises and protocols.  The Court also found that other flag-related statutes supported that "flying" was a particular method of displaying a flag, and the MDLEA used that word instead of "displaying."  The Court rejected the defendants' reliance on: a Coast Guard form; idioms; statements from its earlier opinions; a district court decision supporting their functionalist interpretation; the argument that a textual approach would lead to absurd results; international law; and the rule of lenity.

The Court also rejected the defendants' alternative jurisdictional arguments.  First, it rejected the argument that a crew member made a verbal claim of registry, as that argument was contrary to a factual stipulation that no such claim was made.  Second, it rejected their argument that, by contacting Ecuador, the government was estopped from asserting the absence of any claim of registry.  Third, it rejected their argument that the coast guard acted in bad faith by knowingly contacting the wrong country.

Judge Black concurred in full, but noted that there was an additional ground for affirmance: there was no claim of nationality attributable to the vessel's master.  So even if the painted flag could otherwise support a claim of registry, it was insufficient without some claim by the master; the vessel could not speak for itself.

Thursday, May 24, 2018

Scott: Second or Successive Brady Claims are Always Subject to the Gatekeeping Criteria

In Scott v. United States, Nos. 15-11377, 16-11950 (May 23, 2018) (Rosenbaum, Jill Pryor, Bartle), the Court held that second-or-successive Brady claims are always subject to the gatekeeping criteria in 2255(h), even if the petitioner could not have reasonably discovered the basis of the claim sooner, and there is a reasonable probability that timely disclosure would have resulted in an acquittal.

The Court reluctantly determined that this outcome was dictated by its prior precedent, which reached that same conclusion in the state-prisoner context of 2254.  However, in a lengthy analysis, the Court opined that this prior precedent was incorrect, conflicted with Supreme Court precedent and the Suspension Clause, and improperly rewarded the government for its unfair prosecution, thereby undermining the justice system.  In the Court's view, an actionable Brady claim that a diligent petitioner could not have reasonably been expected to discover should not be considered "second or successive," and thus should not be subject to the stringent gatekeeping criteria.  The panel urged the full Court to convene en banc in order to reconsider its prior precedent to the contrary.  The Court also concluded that counsel was not ineffective for failing to investigate further after taking the government at its word that it had produced all Brady material; the Court, however, did not foreclose the possibility of ineffective assistance of counsel where obvious red flags call the government's assurance into question.

Wednesday, May 23, 2018

Touset: No Reasonable Suspicion Required for Forensic Electronic Searches at the Border, Splitting with Two Other Circuits

In United States v. Touset, No. 17-11561 (May 23, 2018) (William Pryor, Julie Carnes, Corrigan), the Court held that reasonable suspicion is not required for a forensic search of an electronic device at the border, and, alternatively, reasonable suspicion existed.

The Court saw "no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property."  The Court refused to afford electronic devices "special treatment" just "because so many people now own them or because they can store vast quantities of records or effects," as border agents continued to bear the responsibility of preventing the importation of contraband regardless of advances in technology.  Only highly intrusive border searches of a person's body required suspicion, and that reasoning did not apply to electronic devices.  The Court acknowledged that the Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of electronic devices at the border, but the Court was "unpersuaded" by them.  The Court's recent decision in Vergara made clear that the Supreme Court's decision in Riley does not apply to border searches.  And it failed to see why a traveler's privacy should be given greater weight than the interest in protecting territorial sovereignty, as the Fourth and Ninth Circuits have suggested.  The Court suggested that doing so would "create special protection" for child pornography offenses.  The Court also suggested that it was up to Congress to create additional protections beyond what the Fourth Amendment required, and judicial restraint was especially important in this context.

Alternatively, the Court concluded that there was reasonable suspicion based on three separate payments to an account associated with a Philippine phone number, which was associated with an email account containing an image of child pornography.  Although those payments occurred over a year earlier, the Court joined other circuits rejecting staleness challenges in the child pornography context, where deleted filed can remain on electronic devices.

Judge Corrigan concurred, but declined to join the core holding because the government argued that no reasonable suspicion was required for the first time on appeal, and it was unnecessary to reach that issue given the existence of reasonable suspicion.

Mitrovic: Upholding Fraudulent Naturalization Conviction of Former Serbian Prison Guard

In United States v. Mitrovic, No. 16-16162 (May 23, 2018) (Corrigan (M.D. Fla.), William Pryor, Julie Carnes), the Court affirmed the defendant's conviction for unlawful procurement of naturalization.

At trial, the central dispute was whether the defendant served as a guard at a prison camp in Serbia where ethnic cleansing occurred in the 1990s, or whether he was instead forcibly conscripted into forced labor.  On appeal, he argued that the district court violated his right to a complete defense under Chambers v. Mississippi by refusing to admit hearsay statements of recalcitrant witnesses.  They were prisoners at the camp for a time period longer than defense witnesses who testified at trial, and they had initially stated that they had not seen him working as a guard, but later refused to be deposed because they were Muslims and did not want to be perceived as helping a Serb.

First, the Court ruled that application of the hearsay rules were neither arbitrary nor disproportionate, and did not violate the defendant's right to present a complete defense or infringe upon a weighty interest of the accused.  Rather, it only prevented him from increasing the quantity of witnesses who would tell the jury what other witnesses had already said.  The Court continued that, even if the correct application of the rules of evidence could violate Chambers, the hearsay statements here were different than the evidence in Chambers: they were merely helpful, not exculpatory; they were made 20 years after the events; they were not as compelling; and the declarants were not available for cross examination.  Only one of the factors slightly weighed in the defendant's favor -- i.e., the statements were possibly made against a social interest, which was an exception to hearsay in several states.  Thus, the Court concluded that Chambers was distinguishable.

Second, the Court rejected the defendant's argument that the district court erred by refusing to take judicial notice of the Geneva Convention to show that Bosnia would not have submitted documentation that it conscripted him into forced labor.  The Court assumed without deciding that the Geneva Convention could be judicially noticed, but found that the district court did not err by concluding that its probative value was substantially outweighed by the possibility of confusing the jury under Rule 403.  It was unclear whether the Geneva Convention applied, the jury would not know how to apply it, the defendant was still able to argue that he was conscripted into forced labor, and the Convention would not establish that a particular document was false.