Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, September 18, 2012

Holsey: Affirming denial of habeas relief where postconviction evidence was largely cumulative

In Holsey v. Warden, No. 09-14257 (Sept. 13, 2012), the Court (2-1) (Barkett, J., dissenting) denied habeas relief to a Georgia death row inmate convicted of a 1995 murder.

The Court rejected the argument that the Georgia Supreme Court unreasonably determined that the additional mitigating circumstances presented at post-conviction proceedings were “largely cumulative” of the evidence presented at trial. The Court found that at his initial trial, Holsey put mitigating evidence of his own “limited intelligence.” Although in collateral proceedings he later put on evidence of “borderline mental retardation,” most of the evidence in the proceedings was cumulative of earlier-presented evidence. Similarly, while Holsey presented more details of his abusive childhood at his collateral proceedings, the jury at the original sentencing “had heard about his troubled, abusive upbringing too.”

Thursday, September 13, 2012

Duboc: Treaty does not create rights for private persons

In U.S. v. Duboc, No. 11-15133 (Sept. 11, 2012), the Court affirmed the amendment of an existing criminal forfeiture order that ordered the forfeiture of two condos in Thailand in 2011, 12 years after the initial order of forfeiture.
The Court rejected Duboc’s argument that the government failed to prove that he used the proceeds of illegal activity to purchase the Thailand condos. Duboc argued that only 2.4% of the proceeds of his drug trafficking involved importation into the United States. The Court stated that even assuming this was accurate, it does not show that the Thailand condos were not purchased with the proceeds of the crimes of conviction.
The Court also rejected Duboc’s statute of limitations argument, ruling that because the properties were outside the United States, the limitations period had not begin to run. The Court also rejected Duboc’s laches argument, pointing out that the forfeiture statute allows amendment "at any time."
The Court also rejected the argument that the delay in the government’s enforcement of its rights against the Thai condos violated Due Process, noting that Duboc made no showing of prejudice. The Court also rejected Duboc’s attempt to rely on the Mutual Legal Assistance Treaty between Thailand and the United States, holding that this treaty, which involved mutual assistance in law enforcement, did not create rights for private persons.

Wednesday, September 12, 2012

Dortch: No plain error in constructive amendment

In U.S. v. Dortch, No. 10-14772 (Sept. 11, 2012), the Court affirmed convictions for unlawful possession of firearms by a convicted felon, possession of marijuana with intent to distribute, and use of a firearm during a drug-trafficking offense.
During the trial, the district court did not allow the government to introduce evidence of some of Dortch’s prior convictions, because they were too old or too prejudicial. However, for deliberations, the jury was given an unredacted copy of the indictment, which listed the prior offenses. The Court held that the error was harmless, because Dortch stipulated that he was a convicted felon, and the evidence supporting the convictions was "overwhelming." In addition, the district court instructed the jury that the indictment was not evidence.
On plain error review, the Court rejected the argument that the district court committed reversible error because it constructively amended the indictment when it instructed the jury that it could convict Dortch of firearm possession without specifying that it must find that he possessed the specific firearms identified in the indictment. The Court noted that there was no Supreme Court or Eleventh Circuit precedent holding that a constructive amendment occurs when a district court instructs the jury that it may convict for possession of any firearm. The Court therefore found that it "need not address whether a constructive amendment amounts to per se reversible error when the defendant fails to object at trial, because even if we assume the district court erred, the error was not plain."

Finally, the Court rejected the argument that the district court abused its discretion when it excluded evidence that Dortch was acquitted of state charges relating to the same drug transactions at issue. "Judgments of acquittal are hearsay."

Monday, September 10, 2012

Johnson: Passenger must direct risk to be enhanced for driver's recklessness

In U.S. v. Johnson, No. 11-13621 (Sept. 10, 2012), the Court reversed and remanded for resentencing a sentence enhancement under U.S.S.G. 3C1.2, which provides for a two-level enhancement if the defendant "recklessly created a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer."
The defendants participated in the armed robbery of a CVS pharmacy in Atlanta. Police arrived during the robbery. Two defendants hopped into a stolen 1995 Honda, one the driver, the other the passenger. They fled police, ignoring traffic signals, and causing other cars to make evasive maneuvers to avoid being hit. Police backed off pursuit because of safety concerns. Both defendants were ultimately apprehended and convicted.
The Court held that the district court erred in imposing the § 3C1.2 enhancement on the passenger of Honda based on a mere finding that the risk created by the driver was "reasonably foreseeable" to the passenger. The Court noted that a district court must find that a defendant "actively caused or procured the reckless behavior at issue."
The Court rejected the government’s argument that one could infer a plan of escape from the premeditation of the robbery. "It is likely that [the two defendants] did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way."
The Court noted the government’s argument that the passenger must have been aware of the need to "ram a police car to escape" from the fact that police were on the scene when he got in the getaway car. But the district court did not rely on this fact in its § 3C1.2 determination.
The Court rejected the government’s argument that the fact that Johnson fled on foot once the car crashed into a pole shows that he sought to escape during the high-speed chase. The Court noted that the flight on foot did not indicate whether the passenger played any active supporting role in the reckless car-flight.
The Court remanded and instructed for the district to "reopen the record" and "turn its eye to the robbery scene" when the defendants exited the CVS store, considering where the police and their cars were situated.

Franklin: Exigent circumstances justifies search

In U.S. v. Franklin, No. 11-10555 (Sept. 7, 2012), the Court held that because of exigent circumstances, law enforcement did not violate a person’s Fourth Amendment rights when they entered his home without a warrant and seized rifles and sawed off shotguns.
After responding to a request from a Florida Probation Officer to assist him at Franklin’s home, a deputy sheriff went to the back of the house and saw several firearms in plain view through a rear window. There was another person in the house. Franklin ultimately emerged from the house to surrender. The police entered the house where they seized the rifles and shotguns.
The Court held that the law enforcement agents could reasonably have believed that the person inside the home could remove the rifles and shotguns before a search warrant could be obtained. Therefore, there was no Fourth Amendment violation.