Vail-Bailon: Florida Felony Battery is Categorically a Crime of Violence Under the Elements Clause

In United States v. Vail-Bailon, No. 15-10351 (Aug. 25, 2017) (Ed Carnes, Tjoflat, Hull, Marcus, William Pryor, Julie Carnes), the en banc Court -- in a closely divided 6-5 opinion -- held that Florida felony battery categorically qualifies as a crime of violence under the elements clause.

The majority found that Florida felony battery categorically met the definition of "physical force" in Curtis Johnson.  The Court concluded that, because Florida felony battery requires the causation of great bodily harm, it was necessarily "capable" of causing pain or injury.  It therefore necessarily required physical force under Curtis Johnson.  In so concluding, the Court rejected the argument that "physical force" under Curtis Johnson required force "likely" to cause pain or injury.  And the Court rejected that argument that Florida felony battery could possibly be committed by only a slight touching.  Under this reasoning, it would appear that Florida aggravated battery would also qualify under the elements clause.  Notably, however, the Court did not decide whether the Florida battery statute was divisible, since it found that felony battery was categorically a crime of violence, even when committed by a touching.  This may leave open the possibility of challenging simple battery, battery on a law-enforcement officer, and any other simple-battery offenses that do not require the causation of great bodily harm.  The Court also found that its conclusion complied with Leocal because felony battery required an intentional touching.

Judge Wilson, joined by Judges Martin, Jordan, Rosenbaum, and Jill Pryor, dissented.  He argued that Curtis Johnson's definition of "physical force" required a certain "degree of force," not a "capability" of causing pain or injury. He emphasized that even the slightest touching has the capability of causing pain or injury, and Curtis Johnson already held that such conduct did not satisfy the elements clause.  And he concluded that Florida felony battery could indeed be committed by a mere touching, the exact same degree of force required to commit simple battery.  The only difference with felony battery is that the mere touching unintentionally happens to cause great bodily harm; but he found that this result element was irrelevant because it does not change the degree of force necessary to commit the offense.

Judge Rosenbaum, joined in part by Judges Martin and Jordan, issued a separate dissent, adding some arguments bolstering Judge Wilson's dissent.  In addition, and writing only for herself, she argued that the unintentional causation of bodily harm element of the felony battery statute also did not satisfy the "use" prong of the elements clause under Leocal, Castleman, and Voisine, because, although it required an intentional act, it did not require an intent to injure or engage in an act that has a substantial likelihood of injuring another.

White: Full Court Declines to Rehear En Banc Whether Alabama Cocaine Trafficking is a "Serious Drug Offense" Under ACCA

In United States v. White, No. 14-14044 (Aug. 24, 2017), the full Court voted not to rehear en banc a case presenting the question whether Alabama cocaine trafficking was a "serious drug offense" under the Armed Career Criminal Act.

Judge Martin, joined by Judge Jill Pryor, dissented from the denial of rehearing.  In a lengthy opinion, she argued that "mere possession" offenses do not qualify as a serious drug offense for two reasons.  "First, it forces federal judges to make empirical determinations that are beyond our institutional competence.  And second, it directly contradicts the Supreme Court's interpretation of the ACCA in Taylor, because it causes federal judges in this circuit to rely on widely varying state labels and policy judgments when they impose ACCA sentences.  The result is that the exact same conduct can support ACCA sentences that are more (or possibly less) harsh based solely on the state where the conduct occurred."

Tejas: "Special Rule" in Commentary Presuming Number of Victims for Mail Theft Inapplicable Where Evidence is to the Contrary

In United States v. Tejas, No. 16-16336 (Aug. 23, 2017) (Martin, Rosenbaum, Anderson) (per curiam), the Court affirmed in part and reversed in part the defendant's 366-day sentence following a conviction for mail theft.

The defendant first argued that the court erroneously enhanced his sentence under U.S.S.G. 2B1.1(b)(2)(A)(i) based on the number of victims.  The Court agreed.  Although there was "special rule" in the commentary presuming that a mail theft offense involves at least 10 victims where, as here, the offense involved a postal delivery vehicle, the Court found that applying that rule in this particular case would conflict with, and was therefore trumped by, the plain language of the text of the Guideline, which focused on the actual number of victims.  That was so because the evidence in that case made clear that there were, at most, only two victims--the postal employee and the intended recipient of the stolen package.

The Court rejected the defendant's remaining sentencing arguments.  It found that the court properly applied the enhancement for theft "from the person of another" under 2B1.1(b)(3), because the defendant pushed the postal employee aside to obtain a package that was still within arms' reach of the employee.  The Court found that the court properly applied an enhancement under 3A1.2 for targeting a government officer or employee, which requires that the defendant be motivated by the employee's status, because the case was sufficiently analogous to an earlier case involving the robbery of a postal employee where he demanded money orders.  Finally, the Court found that the court properly refused to apply the two-level reduction for acceptance of responsibility because, although the defendant was acquitted of robbery and assault, the court found by a preponderance of the evidence that he did push the postal employee, and the defendant affirmatively insisted that he had not.

Blake: District Court Had Authority Under All Writs Act to Order Apple to Bypass iPad Security Features

In United States v. Blake, No. 15-13395 (Aug. 21, 2017) (Ed Carnes, Fay, Parker), the Court upheld the defendants' child sex trafficking-related convictions and sentences.

First, the defendants argued that the district court should have severed child sex trafficking charges from sex trafficking by coercion charges.  The Court upheld the court's failure to do so, finding that a significant part of the latter charges were also relevant to the former charges, and there was not sufficient prejudice because both crimes were inflammatory.

Second, the defendants argued that that district court's order requiring Apple to help bypass an iPad's security features exceeded the court's authority under the All Writs Act.  The Court initially found that the defendants had both Article III standing (because the evidence gathered was used to convict them) and Fourth Amendment standing (because they had an expectation of privacy in the iPad).  The Court also assumed without deciding that suppression would be the proper remedy, and that they had prudential standing to raise a third party's (Apple) rights.  The Court, however, concluded that the order did not exceed the court's authority under the All Writs Act, applying the multi-factor test from the Supreme Court's 1977 decision in United States v. N.Y. Telephone Company.

Third, the Court rejected a challenge to warrants used to search emails and a Facebook account.  The Court found that the search warrants were supported by probable cause, and that the email warrants satisfied the particularity requirement. The Court, however, expressed serious doubt that the Facebook warrants satisfied the particularity requirement, because they unnecessarily encompassed every kind of activity on the account. But the Court ultimately did not decide the issue.  Because the issue was a close one, the Court concluded that the good-faith exception to the exclusionary rule applied.

Fourth, a defendant argued that one of the victims should not have been permitted to testify about her difficult childhood.  The Court rejected argument, finding it both relevant under Rule 401, because it made the fact that she ran away from home to prostitute herself more probable.  And there was no unfair prejudice requiring exclusion under Rule 403.

Fifth, a defendant argued that the evidence was insufficient that she trafficked one of the victims, because she did not have a sufficient opportunity to observe that the victim was a minor.  The Court rejected that argument, finding that they had five or six interactions, and one of those interactions was considerable.

Sixth, the Court rejected the defendants' sentencing arguments.  One defendant argued that he should not have received the enhancement in U.S.S.G. 2G1.3(b)(2)(B) for unduly influencing a minor to engage in prohibited sexual conduct, because the minors contacted him, not the other way around.  The Court rejected that argument because the commentary provided for a presumption of undue influence where the defendant is more than ten years older than the victim, and the defendant did not overcome that presumption. The Court also rejected the defendants' impermissible double-counting argument under U.S.S.G. 2G1.3(a)(2) and 2G1.3(b)(4), finding that they were punished only once for the fact that sexual conduct did in fact occur. Lastly, the Court rejected the defendant's substantive reasonableness arguments, as they both received downward variances.

Mathurin: No 8th Amendment Violation for 685-Month Sentence Imposed on a Juvenile

In United States v. Mathurin, No. 14-12239 (Aug. 18, 2017) (Julie Carnes, Wilson, Hall), the Court affirmed the defendant's conviction and 685-month sentence for multiple armed robbery and carjacking crimes committed while a juvenile.

As to the conviction, the Court first rejected the defendant's various suppression challenges, finding that: 1) there was probable cause to support the defendant's arrest; 2) because the defendant was advised that no promises or negotiations would be made in a meeting, statements made during that meeting were not made in the course of plea negotiations and thus were not inadmissible under Rule 410; 3) inculpatory statements made by the defendant after his arrest were voluntary, even though there was a delay in notifying his mother of his arrest, the waiver form he signed did not indicate he had a right to attorney prior to questioning, and he was questioned alone after he was appointed an attorney; and 4) there was no basis to suppress eyewitness identifications because there was no evidence to show that the procedure was unduly suggestive.

Second, the Court found that the district court properly dismissed the defendant's original indictment without prejudice under the Speedy Trial Act, because the defendant's offenses were extremely serious, the government did not intentionally delay the filing of the indictment, and the defendant would suffer only minimal prejudice from the delay.

Third, the Court found that the second indictment was not barred by the statute of limitations.  By statute, where an indictment is dismissed after the statute of limitations expires, the government may return a new indictment within six months of the dismissal.  Here, the second indictment was filed ten days after the dismissal.

Fourth, the Court found no reversible evidentiary error by allowing the prosecution to fully recount the robberies, including the involvement of a firearm, even though the defendant was acquitted of accompanying 924(c) counts during an earlier trial.  The Double Jeopardy Clause did not prohibit probative evidence that is otherwise admissible simply because it is related to criminal conduct for which the defendant has been acquitted.  The Court also found that there was no reversible prosecutorial misconduct at closing.

As to the sentence, the Court rejected the argument that the defendant's 685-month sentence violated the Eight Amendment under Graham v. Florida.  In a lengthy analysis, the Court assumed that Graham did apply to a term-of-years sentence exceeding one's life span, but then concluded that, factoring in good time credit, the defendant had an actuarial life expectancy that would precede his possible release date, even using the lower life-expectancy for African American males.  Thus, there was a possibility of release before expiration of his sentence.

The Court also rejected the defendant's argument that the sentence was vindictive, imposed as punishment for successfully appealing his initial conviction (for which he received a 492 month sentence), in violation of North Carolina v. Pearce.  The Court emphasized that the re-sentencing occurred before a different judge, and therefore Pearce's presumption of vindictiveness did not apply, and the defendant could not show actual vindictiveness.

Judge Wilson issued a one-sentence concurring opinion: "I concur in the result."

Oskamac: Upholding Government's Non-Disclosure of FISA-Related Materials

In United States v. Oskamac, No. 14-15205 (Aug. 18, 2017) (Hull, Marcus, Martin), the Court affirmed the defendant's terrorist-related convictions and 480-month sentence for attempting to use weapons of mass destruction against U.S. persons or property and possessing an unregistered firearm.

The defendant raised four arguments on appeal.  First, and primarily, he argued that the court erred by denying him access to certain FISA materials -- namely FISA applications, supporting documents, DOJ certifications, and resulting FISA Court orders -- in order to determine whether the searches and surveillance was legal.  After outlining the relevant statutory provisions, as well as the deferential "minimal scrutiny" standard of review for FISA certifications, the Court rejected the defendant's argument, which primarily sought access to the certifications.  The Court, like the district court, conducted an in camera and ex parte review of the undisclosed FISA materials and evidence, and concluded that all of the legal requirements were satisfied.  The Court concluded that the district court did not abuse its discretion by not disclosing those materials and evidence to the defense.

Second, the Court also rejected the defendant's related argument that denying him access to the FISA materials violated the Confrontation Clause.  Although the defendant did not raise the argument below, and devoted minimal space to it on appeal, the Court exercised its discretion to address and reject it.  In doing so, it found that the defendant received wide latitude to confront and cross examine witnesses, and his Confrontation Clause rights were not violated by his inability to look for potentially favorable evidence in pretrial discovery.  "The ability to cross-examine witnesses does not include the power to require the pretrial disclosure of all information that might be potentially useful in contradicting unfavorable testimony."

Third, the defendant argued that the prosecutor's misstatement during closing -- that the jury should not consider a lack of evidence (such as FBI reports and surveillance logs) -- prejudiced him and denied him due process.  The court rejected that argument because, although the prosecutor's statement was incorrect, the court mitigated the prejudice by curatively instructing the jury that reasonable doubt may arise from a lack of evidence.  And the Court found that the misstatement was both isolated and likely accidental.

Fourth, the defendant argued that the government engaged in sentencing factor manipulation because the government introduced machine guns and explosives to him.  After emphasizing the difficulty of establishing such manipulation, the Court found that the defendant, not the government, introduced the subject of weapons of mass destruction.  Alternatively, the Court rejected that argument under plain error review, since the defendant below had argued "sentencing entrapment" rather than "sentencing factor manipulation."

Judge Martin concurred in the judgment.  She agreed with the outcome, but briefly observed that the majority's standard on the FISA issue exceeded the facts of the case, which was limited to a challenge to the certifications.  She also noted that, because the defendant had abandoned his confrontation clause argument, she would not have addressed it.

Rehaif: No Mens Rea Required as to Status Element of 922(g)

In United States v. Rehaif, No. 16-15860 (Aug. 17, 2017) (Dubina, Ed Carnes, William Pryor), the Court affirmed the defendant's conviction for possessing a firearm and ammunition while being unlawfully in the United States, in violation of 18 U.S.C. 922(g)(5)(A) and 924(a)(2).

On appeal, the defendant first argued that the government was required to prove not only that he knowingly possessed the firearm/ammunition, but also that he knew he was unlawfully in the United States.  In rejecting that argument, the Court relied heavily on 922(g)(1) precedents -- including an 11th circuit case from 1997 -- holding that the government does not need to prove that the defendant knew of his felon status.  Notably, it rejected the contrary conclusion reached in a concurring opinion by then-Judge Gorsuch.  The Court opined that there was no reason to treat felon status under 922(g)(1) differently than unlawful-presence status under 922(g)(5).  It therefore broadly held that "there is no mens rea requirement with respect to the status element of 922(g)."  The Court nonetheless noted that, although not alleged in that case,"there could be a mistake of fact defense."

Next, the defendant argued that he was "unlawfully" presented in the United States only when he was so adjudicated by an immigration officer.  As a matter of statutory construction, the court rejected that argument, finding that he was unlawfully in the United States the moment he violated the terms and conditions of his visa.  In that case, the defendant had remained in the United States under an F-1 non-immigrant student visa after he was no longer enrolled as a full-time student.

Martin: Denial of Motion Seeking Judicial Recommendation for BOP Placement Is Not an Appealable Order

In United States v. Martin, No. 16-17353 (August 15, 2017) (Wilson, Jordan, Rosenbaum) (per curiam), the Court held that an order denying a defendant's motion for a non-binding, judicial recommendation to BOP for placement in a residential re-entry center was not a final appealable order under 28 U.S.C. 1291.  In so holding, the Court followed the unanimous view of six other circuits.

Caraballo: District Courts Have Jurisdiction to Consider Successive 3582(c)(2) Motion Where Initial Motion Denied

In United States v. Caraballo-Martinez, No. 16-11772 (August 4, 2017) (Hull, Marcus, Clevenger), the Court affirmed the denial of the defendant's motion for a sentencing reduction under 18 U.S.C. 3582(c)(2).  The primary question on appeal was a threshold one: whether the district court had jurisdiction to entertain Caraballo's successive 3582(c)(2) motion.  Although he was eligible for a sentencing reduction based on Amendment 599, the district court had denied his initial 3582(c)(2) motion under the 3553(a) factors.  Caraballo then filed a renewed 3582(c)(2) motion based on the same Guideline.  On appeal, the Court held that, where the district court denies -- as opposed to grants -- the initial 3582(c)(2) motion and thus does not impose a different sentence, the court retains jurisdiction to consider a successive 3582(c)(2) motion based on the same Guideline.  The Court declined to address, and thus left open, whether there were non-jurisdictional prohibitions on such successive motions.  The Court nonetheless affirmed the denial of Caraballo's successive 3582(c)(2) motion, finding that the district court had sufficiently considered and weighed the 3553(a) factors.

Kevin Newsom

Yesterday the Senate confirmed Kevin Newsom of Alabama as the newest member of the Eleventh Circuit by a vote of 66-31.  His biography remains available at the link below.

https://www.bradley.com/people/n/newsom-kevin-c

Williams: Affirming MDLEA Convictions Where No Drugs Found

In United States v. Williams, et al., No. 15-15460 (August 1, 2017) (Jill Pryor, Jordan, Proctor), the Court affirmed the defendants' MDLEA drug convictions and one defendant's failure to heave to conviction, but found insufficient evidence to support the remaining defendants' convictions for aiding and abetting the failure to heave to.

The Court rejected the defendants' three evidentiary arguments.  First, it rejected the argument that the district court improperly admitted expert testimony regarding IoScan results reflecting traces of cocaine on the vessel.  The Court rejected the argument that, although the witness was an expert in operating IoScan machines, he was not an expert in interpreting its results; and it rejected the argument that the expert's testimony should have been excluded under Daubert or Rule 403 because it could not definitively answer every question about the presence of cocaine on the vessel.

Second, the Court rejected the argument that the district court improperly allowed Coast Guard officers to provide lay opinion testimony that objects jettisoned from the vessel resembled cocaine bales found in prior drug interdictions.  That observation was properly admitted as lay, rather than expert, testimony because it was based on the objects' appearance and size using an infrared system, and did not require scientific or technical knowledge.  The Court rejected the defendants' argument, based on Jayyousi, that opinions offered by law enforcement officers do not automatically become expert opinions simply because they involve knowledge that pre-existed the instant investigation.

Third, the Court rejected the argument that the district court improperly admitted a "zarpe," a Colombian document including the names of the defendants and their ports of call, as unauthenticated and containing hearsay.  The government introduced evidence that the zarpe was authentic under Rule 901.  And it did not contain hearsay because it was offered to demonstrate that it was a ruse, not accurate.

The Court found sufficient evidence to support the defendants' drug conspiracy convictions, despite the fact that no cocaine was found on the vessel or in the sea.  The Court relied on the following facts: they were traveling at night in rough waters on a known drug trafficking route; the vessel was traveling in the opposite direction of where the captain initially said it was going; there was no fishing equipment on the vessel, which was registered as a fishing vessel; the crew members were observed throwing objects overboard; the officers found gasoline, a known masking agent; and the vessel behaved erratically.  The Court found sufficient evidence that the contraband was in fact cocaine based on officers' testimony about prior cocaine interdictions in that same area, the size/shape of the bales thrown over, and the IoScan results.

The Court affirmed defendant Williams' conviction for failing to heave to, because he was the master of the vessel, which sped up and made erratic movements after hailed by the Coast Guard.  The Court, however, reversed the remaining defendants' convictions for aiding and abetting that violation, because there was no evidence that they intended to aid and abet Williams' failure to heave to; the fact that they jettisoned the packages was insufficient.