Munksgard: Sufficient Evidence Existed of FDIC-Insured Status

In United States v. Munksgard, No. 16-17654 (Jan. 30, 2019) (Tjoflat, Marcus, Newsom), the Court affirmed the defendant's bank fraud and aggravated identity theft convictions.

As to the bank fraud conviction, the defendant argued that there was insufficient evidence because the government failed to prove that he knew that the bank was FDIC-insured at the time he submitted fraudulent loan applications.   The Court recounted its history of annoyance at the government in previous cases for doing a poor job at proving a bank's insured status.  The Court emphasized that contemporaneous evidence of insurance was best, that prior and subsequent insurance was second best, but that prior or subsequent insurance can be adequate.  In this case, the government submitted sufficient, though hardly overwhelming, evidence because it introduced a certificate of FDIC insurance at the time the bank was chartered, the bank vice president testified that the bank was subsequently insured at the time of trial, and his testimony indicated that the insurance had not lapsed at the relevant time.

As to the aggravated ID theft conviction, the Court concluded that, when the defendant signed another person's name to the fraudulent contract submitted in support of the loan application, he "used" a "means of identification" within the meaning of 1028A.  Emphasizing the plain statutory language and context, the Court rejected the defendant's argument that, because he only signed another person's name without attempting to impersonate that person or harming him, he did not "use" that identification.

Judge Tjoflat dissented.  In a lengthy opinion, he explained that he would have vacated the bank fraud conviction for insufficient evidence of FDIC-insurance status.  He concluded: "The majority goes to great lengths to bail the government out.  Nothing in our precedent compels this, and the Constitution doesn't allow it."

Brewster: Habeas Relief Warranted Where Court Exerted Coercive Pressure on Holdout Juror and Counsel Failed to Object

In Brewster v. Att'y Gen, Ala., No. 16-16350 (Jan. 22, 2019) (Ed Carnes, Branch, Fay), the Court reversed the denial of a state-prisoner habeas petition alleging ineffective assistance of counsel.

Over the period of two days of deliberation, the jury repeatedly told the court that they were deadlocked, sending six notes to that effect.  Although federal courts are prohibited from inquiring about the breakdown, the Alabama jury here disclosed how they were divided three times: first 9-3 in favor of conviction, then 11-1 in favor of conviction, and then that one juror was continuing to hold out.  The court gave a formal Allen charge, two additional admonitions to continue deliberating, and then another long instruction emphasizing that the jurors had taken an oath to follow the law and that they must take that oath seriously.  Then, when informed that the holdout juror was doing crossword puzzles, the judge ordered all reading materials removed from the jury room.  Shortly thereafter, the jury returned a guilty verdict.

Applying de novo review (rather than the normal AEDPA deference), the Court found that, under those circumstances, trial counsel was ineffective for failing to once object or move for a mistrial.  There was no rational or strategic basis for refusing to do so.  Quoting Macbeth: "It doesn't take the 'pricking of my thumbs' to know that 'something wickd this way comes' for a defendant when a jury goes from 9 to 3 for conviction to 11 to 1 for conviction and the lone holdout faces the coercive circumstances that this one did."  Or, put another way: "It doesn't take a Clarence Darrow to realize that if a jury has gone from 9 to 3 in favor of conviction to 11 to 1 for it, and is complaining about the lone holdout's behavior and her refusal to go along with the others, that jury is not headed toward an acquittal."  And, the Court concluded, that deficient performance was prejudicial because, due to the court's coercion exerted on the holdout juror, the defendant was legally entitled to a mistrial under both state and federal law.  A lthough "the holdout juror was not threatened with branding or exsanguination, and the jury was not hauled around in a court," which "would have passed muster in seventeenth-century England," it did not not in "twenty-first century Alabama."

Campbell: Officer Unlawfully Prolonged Traffic Stop but the Good Faith Exception Applied

In United States v. Campbell, No. 16-10128 (Jan. 8, 2019) (Tjoflat, Martin, Murphy (E.D. Mich.)), the Court affirmed the denial of a motion to suppress.

The Court first concluded that the highway patrolman had reasonable suspicion to stop a motorist based on a rapidly blinking turn signal.  The Court relied on Georgia law, which not only required that the turn signal clearly indicate an intention to change lanes but that it be in good working condition.  Because a rapdily blinking signal indicated that something was not in good working condition, it gave the officer reasonable suspicion to believe that the car was in violation of the traffic code.

However, the Court found that the officer unlawfully prolonged the stop by asking questions unrelated to the stop.  Relying on the Supreme Court's 2015 decision in Rodriguez v. United States, the Court found that an officer unlawfully prolongs a stop where, without reasonable suspicion, he diverts from the stop's purpose and adds time to the stop in order to investigate other crimes.   That standard, the Court found, abrogated the Eleventh Circuit's earlier precedents, which had employed a general reasonableness standard.  Applying the correct standard, the Court concluded that the officer in this case unlawfully prolonged the stop -- not by asking about the driver's travel plans (which was related to the reason for the stop), but by asking whether he had contraband in the car, which added 25 seconds to the stop.

The Court nonetheless affirmed by applying the good-faith exception to the exclusionary rule, because the officer's conduct was permissible under Eleventh Circuit precedent at the time of the stop.  Although the government did not raise the good faith exception on appeal, the parties addressed the issue in the district court, waiver was a prudential doctrine, and ignoring the exception here would be a miscarriage of justice by suppressing the truth for no reason other than to teach the government's counsel a lesson.

Judge Martin concurred in part and dissented in part, disagreeing with the majority's decision to apply the good faith exception despite the government's failure to raise it.  She would "not put this Court in the business of resusciating arguments the government was made aware of, then clearly abandoned.  In my experience, this Court rarely extends the same courtesy to the criminal defendants and pro se litigants who come before us."

Solomon: Successive 2255 Challenging 924(c) Conviction Based on Johnson Fails to Satisfy Gatekeeping Criteria

In Solomon v. United States, No. 17-14830 (Jan. 8, 2019) (William Pryor, Grant, Hull) (per curiam), the Court affirmed the denial of a successive 2255 motion to vacate a 924(c) conviction in light of Johnson.

The Court held that, in light of its en banc decision in Ovalles II and its subsequent decision in In re Garrett, the successive 2255 motion did not satisfy the gatekeeping requirements of 2255(h).  Because neither Johnson nor Dimaya invalidated the residual clause in 924(c)(3)(B), there was no rule of constitutional law supporting the claim.  Moreover, any challenge to the district court's use of the categorical approach (as opposed to a fact-based approach) would also not satisfy 2255(h), because that claim would be statutory rather than constitutional in nature.