Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, August 20, 2019

Hawkins: Vacating Drug Convictions Due to Improper Expert Testimony by Case Agent

In United States v. Hawkins, No. 17-11560 (Aug. 20, 2019) (Antoon (M.D. Fla.), Newsom, Tjoflat), the Court affirmed in part but vacated several drug convictions.

First, the Court upheld the denial of a motion to suppress wiretap evidence, rejecting the argument that the wiretap applications did not meet the "necessity" requirement of Title III.  The accompanying affidavits described other investigative techniques already employed and that proved unsuccessful, and the good-faith exception applied in any event.  The Court also upheld the denial of a motion to suppress evidence seized during a traffic stop because there was a probable cause of a traffic violation, namely changing lanes on the interstate without using a turn signal.

Second, the Court rejected the defendant's argument that the evidence at trial on a conspiracy count diverged from the allegations in the indictment, resulting in a constructive amendment or variance.

However, the Court agreed with the defendants that the lead case agent—the government's primary witness at trial—went beyond the bounds of permissible expert testimony by repeatedly providing speculative interpretive commentary about the meaning of phone calls and text messages and by giving his opinions about what was occurring during and in between those communications.  Rather than interpreting drug codes or common practices, which an expert may do, he interpreted unambiguous language in conversations, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury, straying into speculation and unfettered, wholesale interpretation of the evidence.  The Court concluded that this met all of the requirements of plain-error review, emphasizing that the agent was paraded to the jury as an expert, often went beyond mere lay opinion testimony, and at times played the role of both expert and lay witness, and that the agent was the government's main witness who testified for more than half of the trial.

Monday, August 19, 2019

Stahlman: Affirming Enticement Conviction/Sentence Over Various Challenges

 In United States v. Stahlman, No. 17-14387 (August 19, 2019) (Hull, Jordan, Grant), the Court affirmed the defendants's conviction and sentence for enticing a minor to engage in sexual activity.

First, the Court upheld the exclusion of the defendant's expert testimony on the ground that admitting it would have violated Rule 704(b), which prohibits an expert from opining on the defendant's intent.  That expert would have directly testified that there was insufficient clinical and behavioral evidence that the defendant intended to have real sex with a minor rather than act out a fantasy involving adults.  The Court expressed no view on a whether a more limited, less direct version of expert testimony would have been admissible.

Second, the Court found no reversible error in permitting a special agent to offer lay opinion testimony regarding the age of a girl in a picture posted on Craigslist, what Craigslist is used for, whether the picture would have been "flagged," what the defendant meant in the ad, and the agent's interpretation of email communications between him and the defendant.  Although the court erroneously admitted that lay opinion as expert opinion, that error was harmless because much of his testimony, including which posts would be "flagged," would have been proper lay opinion testimony that was not based on specialized knowledge from his law-enforcement experience.  Moreover, even if some of the testimony required specialized knowledge that should have been disclosed and presented as expert testimony, that was harmless because the court would have admitted it as such even if the defense had file a motion to exclude it, and ample evidence supported the conviction.

Third, the Court rejected the defendant's argument that the evidence was insufficient to prove his intent, or that he took a substantial step toward carrying out that intent.   Although there was an innocent explanation for his conduct, the jury was free to reject it, particularly because the defendant testified at trial.

Fourth, the Court upheld a sentencing enhancement for obstruction based on perjurious testimony at trial.  The Court rejected the defendant's argument that the district court failed to make sufficient factual findings.

Finally, the Court found no reversible error in denying a motion for new trial based on a Brady and Rule 16 violation.  The Court found that, although the court used the wrong legal standard, even if the agent's prior disciplinary history was Brady material, it would not have affected the outcome of the trial had it been disclosed, so any error was harmless.

Wednesday, August 14, 2019

Brown: Upholding Police Brutality Convictions but Vacated Probation Sentences

In United States v. Brown et al., No. 18-10772, 10972 (Aug. 14, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' convictions but vacated their sentences.

First, the Court found that sufficient evidence supported a police officer's conviction for deprivation of rights under color of law when he beat and tased the passenger in a fleeing vehicle.  Ample evidence supported the jury's finding that the defendant willfully used excessive force under the facts and circumstances.  The Court also found no abuse of discretion in denying the defendant's motion for a new trial under Rule 33 based on a purportedly inconsistent verdict (his codefendants were acquitted) and an enhanced video of the incident that was neither "newly discovered" nor material.

Second, the Court found that sufficient evidence supported the supervising officer's conviction for obstruction of justice when he instructed his subordinates to change their reports to better reflect what happened after a video came to light, and then gave misleading answers to questions by the FBI.   The Court also found that, because he first proposed it, the defendant invited any error in connection with the pattern Allen charge, and the Court rejected his argument that the instruction was unuduly coercive.  And the Court found no abuse of discretion under Rule 606(b) when the court declined to interview a juror who alleged misconduct (e.g., that jurors were biased, bullied into voting guilty, discounted her opinion because she had "crush" on the defendant), or to compel the disclosure of the contents of a juror's post-trial conversation with a spouse of an AUSA about her experience as a juror.

Third, and on a cross-appeal by the government, the Court vacated the defendants' downward-variance sentences of probation.  To calculate the guidelines, the ultimate question was whether the officer used the taser with intent to cause bodily injury.  The district court found that he did not because there was evidence that the officer used it to gain compliance rather than to cause bodily injury.  However, it was possible that the officer intended both to gain compliance and cause bodily injury.  Because it was unclear whether the district court applied an incorrect legal standard to reach its factual conclusion, the Court vacated the sentences and remanded for re-sentencing.