Bates: Non-Insanity Psychiatric Evidence Rarely Admissible in General-Intent Prosecutions

In United States v. Bates, No. 18-12533 (May 26, 2020) (Huck, Branch, Marcus), the Court affirmed the defendant’s federal assault, drug, and gun convictions.

First, the Court held, in accordance with five other circuits, that federal assault under 18 U.S.C. 111(b) is a “crime of violence” under the elements clause in 924(c)(3)(A).   The Court reasoned that a forcible assault that either involves the use of a deadly weapon or that results in bodily injury qualifies.

Second, the Court found not abuse of discretion in the district court’s exclusion of three types of evidence.  First, the Court found no abuse of discretion in excluding non-insanity psychiatric evidence of the defendant’s mental state at the time he shot an officer.  The Court clarified that such evidence is only rarely admissible to negate mens rea in general intent prosecutions, such as in self-defense cases where the government was required to prove a heightened (and thus more specific) mens rea.  Here, however, the government sought to rebut the defendant’s self-defense claim by showing that he knew the victim was a federal officer, and the psychiatric testimony was irrelevant to that issue but rather impermissibly sought to establish an affirmative defense based on mental incapacity.  Second ,the Court found no abuse of discretion in excluding hospital records showing that the defendant had been the victim of gunshot wounds many years earlier, and there was no evidence explaining how that related to the offense.  Finally, the Court found that the defendant’s statement to an officer was not an “excited utterance” because it was made well after he was in an excited state.

Third, the Court found sufficient evidence that the defendant was not acting in self defendant and knew that he was shooting at officers.  Therefore, the evidence was sufficient to uphold his assault and 924(c) convictions.

Fourth, as to the sentence, the Court held: that Georgia convictions for possession with intent to distribute marijuana qualified under the ACCA and career offender Guideline; that the defendant was not entitled to a reduction for acceptance of responsibility by pleadings guilty two of the five counts; and that his low-end 360-month sentence was not substantively unreasonable.

Finally, the Court held that the defendant’s Rehaif challenge to his indictment was not jurisdictional in nature, and was therefore waived by pleading guilty.  And, as to the voluntariness of the plea, the defendant could not meet plain error to show that, but for his guilty plea, he would have proceeded to trial because he expressed no confusion that he was a seven-time convicted felon.

Benjamin: Upholding Fentanyl Convictions Over Various Challenges

In United States v. Benjamin, No. 18-13091 (May 8, 2020) (Marcus, Ed Carnes, Luck), the Court affirmed the defendant’s convictions for distributing fentanyl.

First, the Court found sufficient evidence that the fentanyl was the but-for cause of the victim’s death, triggering the sentencing enhancement in 841(b).

Second, the defendant argued that the DEA did not criminalize furanyl fentanyl until after he was charged, depriving the court of jurisdiction.  The Eleventh Circuit concluded that his claim was not actually a jurisdictional challenge, but rather a challenge to the sufficiency of the evidence.  And the Court rejected that argument because he distributed a controlled substance analogue.

Third, the defendant argued, for the first time on appeal, that the district court erred by failing to instruct the jury that he had to know that furanyl fentanyl was a controlled substance analogue.  The Court rejected that argument, because the district court instructed the jury on both knowing and willful distribution.  And the jury could find scienter by finding that the defendant knew the identity of the substance he possessed, even if he did not know it was a controlled substance analogue.

Fourth, the Court found that the defendant gave voluntary consent for officers to search his luggage at the airport.  There was no coercion, and the defendant understood his right to refuse.  Although an officer falsely suggested that TSA had found ammunition in his luggage, that ruse did not vitiate the consent because it was limited and came after the consent was given.

Fifth, the Court found no abuse of discretion when the district court declined to investigate juror misconduct.  After the jury returned its verdict, a clerk discovered a list of “30 Dos and Don’ts of Jury Deliberations” in the jury room.  However, there was no evidence that the jury considered extraneous information.  The list was not inherently prejudicial, it did pertain to this particular case, and it was not more likely to lead to a conviction.

Hollis: Upholding Denial of IAC Claim for Failing to Object to Prior Alabama and Georgia Offenses as ACCA and CO Predicates

In Hollis v. United States, No. 19-11323 (May 6, 2020) (William Pryor, Branch, Luck) (per curiam), the Court, without oral argument, affirmed the denial of a pro se 2255 based on ineffective assistance.

The movant argued that his lawyer was ineffective for failing to object to the use of his prior Alabama and Georgia drugs convictions as “serious drug offenses” under the ACCA and “controlled substance offenses” under the career offender Guideline.  The Court ruled that the lawyer was not deficient because those convictions categorically qualify as predicates offenses.

McLellan: Upholding Gun Convictions Over Multiple Challenges

In United States v. McLellan, No. 18-13289 (May 6, 2020) (Boggs (CA6), Ed Carnes, Rosenbaum), the Court affirmed the defendant’s gun convictions and sentences.

First, the Court concluded that an officer did not provide an improper expert opinion when testifying that, based on his experience, there is a relationship between guns and drugs, as this did not require any scientific or specialized knowledge.   The Court also concluded that there was no Rule 403 violation when an officer testified that less than a gram of meth was “sellable” because  the defendant disputed that he knowingly possessed the gun, he argued that it was for personal use, and other items associating with selling drugs were found.

Second, the Court declined to address the defendant’s ACCA challenge because the district court said it would have imposed the same 15-year sentence anyway—by running the 10-year minimum for one count consecutive with a 5-year sentence for a second gun count.  And that ultimate sentence was not substantively unreasonable.

Third, and finally, the Court rejected the defendant’s Rehaif challenge.  Under recent circuit precedent, the indictment’s failure to allege knowledge of status was not jurisdictional; and, under plain error review, the defendant could not show his substantial rights were affected because he had multiple prior felonies for which he served many years in prison.  Thus, there was substantial evidence that the defendant knew he was a felon.  For the same reason, the Court found no reversible error with respect to his guilty plea on a second gun count, as there was no evidence he would have gone to trial had he been properly advised.

Welch:Pre-1997 Florida Robberies Are "Violent Felonies"

In Welch v. United States, No. 14-15733 (May 6, 2020) (Rosenbaum, Tjoflat, Pauley (SDNY)), the Court affirmed the denial of a 2255 motion based on Johnson.

The Court concluded that the movant’s convictions remained “violent felonies” under the ACCA’s elements clause.  The movant argued that his pre-1997 Florida robbery did not satisfy the elements clause because it could be committed by snatching, and the Court’s decision in his direct appeal supported that argument.  The Court disagreed, finding the earlier discussion in his direct appeal to be dicta, and that subsequent circuit precedent in Fritts made clear that all Florida robberies qualified.   The Court also reiterated that Florida felony battery satisfied the elements clause under its en banc decision in Vail-Bailon.

Judge Rosenbam concurred, acknowledging that binding precedent required the result.  However, she wrote separately to argue that Fritts was wrongly decided because, in determining the least culpable act criminalized, it failed to look to the actual state of the law in Florida before 1997 in certain DCAs.

Evans: Emergency Aid Exception Applied Because Officers Could Mistake Dog Whimpering for a Distressed Person

In United States v. Evans, No. 17-15323 (May 6, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s conviction and sentence.

The Court upheld the denial of a motion to suppress based on the emergency-aid exception to the warrant requirement.  The main issue was whether it was reasonable for officers to believe that a dog whimpering inside the home could have been mistaken for a person in distress.   Under the totality of the circumstances, the Court concluded that they could, since the officers responded to a 911 call reporting gunshots , the responding officers were informed that the defendant had threatened to kill himself, and the defendant was not cooperative.   The officers were not required to believe the defendant’s girlfriend, who told her the whimpering was from a dog.

As for the sentence, the Court first rejected the argument that an unloaded firearm could not trigger the enhancement in 2K2.1 for possession of a semi-automatic firearm that is capable of accepting a large capacity magazine.  Second, although the defendant argued that there was no evidence he possessed a firearm with an obliterated serial number, the district court was entitled to rely at sentencing on an officer’s contrary testimony and the firearm itself.

Swain: Staying Pending Appeal Preliminary Injunction of Metro West Related to COVID-19

In Swain v. Junior, No. 20-11622 (May 5, 2020) (per curiam) (Wilson, William Pryor, Branch), the Court stayed pending appeal a preliminary injunction directing Metro West to employ various safety measures to protect against spread of the virus and imposing various reporting requirements.

The Court concluded that Metro West is likely to prevail on appeal because the district court committed legal errors in analyzing the plaintiffs’ Eight Amendment deliberate indifferent claim, and little evidence showed that the jail was deliberately indifferent.  The Court also concluded that Metro West would suffer irreparable harm because the injunction deprives it of the discretion necessary to allocate resources to fight the pandemic as it sees fit.  As for the balance of harm and the public interest, the Court acknowledged that the virus posed risks to everyone including inmates, but they did not show irreparable harm that they would suffer without the injunction.  Finally, the Court also observed that the district court likely erred by refusing to address municipal liability and the PLRA’s exhaustion requirement.

Judge Wilson dissented, opining that he saw no abuse of discretion.

Andrews: Upholding Denial of 2241 Challenging BOP Interpretation of Commutation

In Andrews v. Warden, No. 19-2443 (May 5, 2020) (William Pryor, Jill Pryor, Luck), the Court affirmed the denial of a federal prisoner’s 2241 habeas petition.

The defendant challenged the BOP’s re-calculation of his release date after President Obama commuted the “total sentence of imprisonment” that he was “now serving.”  The defendant argued that this commutation also extended to an earlier term of imprisonment that he had completed, not just the term of imprisonment he was currently serving (which included a sentence for violating supervised release of the earlier sentence).  The Eleventh Circuit disagreed.  After a lengthy discussion on the President’s pardon power and other related matters, the Court found that the plain language of the commutation foreclosed the defendant’s argument, and that the BOP’s interpretation of it was entitled to deference.

Judge Jill Pryor concurred only in the result.

Russell: Vacating 922(g)(5) Conviction Based on Rehaif

In United States v .Russell, No. 18-11202 (May 4, 2020) (Wilson, Branch, Restani), the Court vacated the defendant’s 922(g)(5) conviction after trial based on Rehaif.

At trial, the district court excluded as irrelevant the defendant’s immigration file.  That file showed that, although he overstayed his visitor status, a U.S. citizen filed a petition to classify him as her spouse (which was granted), and he sought to adjust his status based thereon.  The first petition was subsequently withdrawn, but it is unclear whether the defendant knew that when he was arrested.  Applying plain error on appeal, the Eleventh Circuit concluded that Rehaif rendered the exclusion of his immigration file an error that was plain.  It also concluded that the defendant had shown that, but for the error, the outcome of the trial would have been different.  The Court reached that conclusion because the defendant had consistently challenged his immigration status throughout the district court proceedings, and the jury did not hear any evidence showing that he believed he was illegally present.  The Court also found that, because this error deprived him of a defense, the fourth prong of plain error was satisfied as well.

Judge Branch dissented, opining that the entire record showed that he knew he was illegally present.  She emphasized that he knowingly overstayed his visa, and he knew that he was already married elsewhere, so he knew that he could not be validly re-classified  as the spouse of a U.S. citizen.