Braddy: Upholding Denial of Suppression Motion Based on an Alabama Traffic Stop and Dog Sniff

In United States v. Braddy, No. 19-12823 (Aug. 31, 2021) (Rosenbaum, Lagoa, Ed Carnes), the Court affirmed the denial a motion to suppress.

First, the Court held that the officer had reasonable suspicion make the traffic stop after observing bicycles obstructing the car’s Florida license plate.  The defendant argued that Alabama traffic law did not apply to him as a non-resident Florida driver.  The Court held that, regardless of whether the defendant’s interpretation of Alabama law was correct, the officer’s interpretation by the officer was objectively reasonable.

Second, the Court held that the officer did not unlawfully prolong the traffic stop.  The officer’s questions about the driver’s travels plans and itinerary, as well as the address on his license and ownership of the vehicle, were ordinary inquiries related to the purpose of the stop.  A dog sniff of the car also did not unlawfully prolong the stop because the sniff was conducted while the officer was still waiting for a warrant check to come back before issuing a warning.

Third, the drug-sniffing dogs were sufficiently reliable to provide probable cause to search the car.  The district court did not clearly err by crediting the officers’ testimony about the dogs’ training and certification over the defense expert’s contrary testimony.  The officers testified that the dogs’ positive alert, although “very quick” and not “final,” was consistent with their training, and the district court credited that testimony.

Judge Rosenbaum concurred in part and dissented in part.  In her view, the officers’ observations were too subjective and were closer to a hunch, since the dog behavior was so quick and subtle (and not confirmed by her review of the video) that it could have easily been normal dog behavior.  She would not defer to the officers’ subjective interpretations of dog behavior, which would effectively insulate their conduct from Fourth Amendment scrutiny.

Korf: Upholding Denial of Injunction Prohibiting Use of Taint Team and Filter Protocol

In In re: Sealed Searched Warrant and Application for a Warrant by Telephone or Other Reliable Electronic Means (United States v. Korf et al.), No. 20-14223 (Aug. 30, 2021) (Martin, Rosenbaum, Luck) (per curiam), the Court upheld the denial of a motion to enjoin the use of a government filter team.

The government executed a search warrant at a suite of offices, and included in the materials seized were those from the office of an in-house attorney.  Relying on Rule 41(g), the clients intervened and sought an injunction prohibiting the government’s filter team—consisting of government attorneys and staff who were not involved in the investigation—from reviewing any potentially privileged documents without their consent or court approval.  On appeal, the Court first concluded that it had appellate jurisdiction because the intervenors sought only the return of their property, not invalidation of the seizure, and that was sufficiently independent of any forthcoming criminal judgment.  However, the Court found no abuse of discretion in denying the request for injunctive relief because the intervenors could not show a substantial likelihood that they would succeed on their claim that a government filter team per se violates their rights, or that the filter protocol in place here would violate their rights.  The filter protocol here allowed the intervenors to conduct an initial privilege review, and it required their permission or a court order before releasing any purportedly privileged documents to the investigation team.

Mitchell: It is Unconstitutional for Prison Officials to Open Legal Mail Outside Inmate's Presence

 In Mitchell v. Duvall County et al., No. 19-14505 (Aug. 26, 2021) (Branch, Grant, Tjoflat), the Court re-affirmed that it clearly violates the First Amendment for prison officials to open an inmate’s legal mail outside of his presence. 

Watkins: En Banc Court Holds Preponderance of Evidence, Not Reasonable Probability, Governs Inevitable Discovery Exception to Exclusionary Rule

In United States v. Watkins, No. 18-14336 (Aug. 20, 2021), the en banc Court—in a joint opinion by Judges Martin and Ed Carnes—granted the defendant’s rehearing petition and vacated the panel opinion without oral argument. 

The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of evidence, not a “reasonable probability.”  All prior Eleventh Circuit precedents to the contrary are overruled.  The Eleventh Circuit remanded the case back to the panel for further proceedings consistent with this new holding.

Gonzalez: SR Sentences May be Reduced Under Section 404 of First Step Act

In United States v. Gonzalez, No. 19-14381 (Aug. 19, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

Joining two other circuits, and accepting the government’s concession, the Court held that a sentence imposed upon revocation of supervised release can be reduced where the underlying offense is a “covered offense.”  However, the Court affirmed the denial of the motion because the district court’s alternative discretionary denial was supported by the record and 3553(a) factors.  The Court declined to follow a Seventh Circuit decision (and arguably Fourth and Sixth Circuit decisions) categorically requiring the district court to calculate and consider the defendant’s new guideline range before exercising discretion under Section 404(b).

Judge Tjoflat concurred because he was bound by precedent, but he believed that, because the text of Section 404 includes no standard guiding the district court’s discretion, the court of appeals cannot review discretionary denials at all.

Coats: Aiding/Abetting Georgia Burglary Is Generic Burglary Under the ACCA

In United States v. Coats, No. 18-13113 (Aug. 12, 2021) (Martin, Newsom, Julie Carnes), the Court, in a 75-page opinion, affirmed the defendant’s felon in possession conviction and affirmed his ACCA sentence.

As to the conviction, the Court found no plain error under Rehaif.  Although the district court committed error that was plain by accepting his guilty plea without advising him of the mens rea element, he could not establish prejudice, as required by the Supreme Court’s recent decision in Gary, because he made no attempt to show that he would have proceeded to trial but for the Rehaif error, and he had numerous prior felony convictions.

As to the sentence, the Court held that the defendant’s 2003 Georgia burglary conviction qualified under the ACCA’s enumerated clause.  In an extensive discussion, the Court rejected the defendant’s argument that Georgia’s “party to a crime” statute, which included aiding and abetting liability, rendered his offender non-generic.  Georgia law required an accomplice to burglary to take affirmative action and to intend to facilitate the crime, as required by the generic standard for aiding and abetting articulated by the Supreme Court in Rosemond.

Finally, the district court did not err by declining to grant acceptance of responsibility because, despite pleading guilty, the defendant obstructed justice.  The record did not clearly establish that this was an extraordinary case where a reduction was warranted notwithstanding the obstruction, especially given that the obstructive act was a violent assault of a key witness.  It was not enough that the obstruction preceded the indictment.

Akwuba: With One Exception, Upholding Pill Mill Convictions Over Various Trial Challenges

In United States v. Akwuba, No. 19-12230 (Aug. 11, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed, with one exception, the defendant’s convictions for distributing controlled substances and health care fraud as part of a pill mill operation.

First, with one exception, the evidence was sufficient to support her convictions for distribution of controlled substances, conspiracy to distribute controlled substances and to commit health care fraud, and substantive health care fraud.  With regard to one count of substantive health care fraud, the government conceded, and the Court agreed, that the evidence was insufficient because an insurance company not named in the indictment was billed for the prescriptions for that count.

Second, the Court rejected the defendant’s argument that a jury instruction on a disputed factual question effectively directed a partial verdict of guilty.  The instruction did not relate to an element of the offense or any factual question that the jury was required to decide.  And although a closer question, the instruction also did not violate the right to present a defense because, while the judge erroneously told the jury that the parties had stipulated to something they did not, it did not prevent the defendant from presenting her theory of defense to the jury.

Finally, there was no reversible error on three evidentiary rulings.  First, the district court did not reversibly err by preventing the defendant from eliciting testimony that a prescription pad had been stolen, as defense counsel ultimately withdrew that line of questioning.  Second, the district court did not err by limiting a line of cross examination on the government’s expert witness because it did not pertain to the defendant, and there was nothing more to impeach the expert with.  Third, experts did not expressly state opinions regarding the defendant’s mental state, and the likely-irrelevant admission of some testimony about the experts’ personal practices did not rise to the level of plain error.

Harris: Upholding Drug/Firearm Convictions for Corrupt Cops In Face of Multiple Challenges

In United States v. Harris, No. 19-13692 (Aug. 9, 2021) (Jill Pryor, Newsom, Marcus), the Court affirmed the defendants’ drug and firearm convictions stemming from a reverse sting police corruption investigation.

First, there was sufficient evidence to support the defendants’ convictions based on the evidence at trial.

Second, while there was sufficient defense evidence of inducement to permit an entrapment defense to go to the jury, there was nonetheless sufficient evidence that the defendant was predisposed to take part in the conspiracy.  In addition, the defendant challenge the court’s response to the jury’s question about whether the definition of entrapment applied to each count or if it was a single determination.  The court responded that the jury should consider each crime and the evidence relating to each separately.  That was not an abuse of discretion because the evidence of predisposition was not the same for each count.

Third, the defendant was not entitled to a duress instruction because he did not show that he had no reasonable opportunity to escape or inform the police.

Fourth, the district court did not abuse by dismissing the indictment sua sponte based on prosecutorial misconduct because the prosecutor did not knowingly used perjured testimony or fail to correct material false testimony.  The Court found no misconduct at all.

Fifth, with regard to the defendants’ Batson challenge, they failed to make a prima facie case of discrimination.  The defendants argued only that the stricken jury was African American, and they did not believe there was any reason to disqualify him other than race.  Those arguments alone, however, were insufficient to raise an inference of racial discrimination.  The government only struck one African American out of the seven peremptory challenges, it made no objection to the other three African Americans on the panel, and the final jury included two African American jurors.  In any event, there was no error in the district court’s ultimate determination that the defendants failed to establish that the government’s race-neutral reason was pretextual.

Sixth, the prosecutor did not improperly shift the burden of proof or commit misconduct at closing.

Finally, the district court did not commit plain error by failing to sua sponte advise the jury that a read-back of trial testimony was available because there was no precedential decision so holding.  Nor did the defendant show any prejudice from the failure.

Cordero: Upholding Various Challenges to Supervised Release Term and Conditions

In United States v. Cordero, No. 18-10837 (Aug. 4, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant’s motion to modify and terminate his supervised release.

First, the district court did not abuse its discretion by entering a sealed order requiring the defendant to disclose information related to the work he performed and by requiring him to disclose his sex offender status to potential clients.  The Court rejected his argument that the order effectively modified his supervision and imposed a new restriction without granting him an evidentiary hearing or making necessary findings.  The district court was merely enforcing a previously-imposed condition of his supervision.  To the extent the defendant sought to challenge the original condition, he failed to appeal it after it was imposed, and any such challenge was barred by a valid appeal waiver.

Second, the district court did not abuse its discretion by denying the motion to modify the conditions of supervised release to eliminate a restriction on internet access.  Although the district court did not explicitly address the 3553(a) factors, the record as a whole supported the conclusion that the district court considered them.  And those factors supported the continued existence of the restriction.  In addition, while the defendant argued that the internet restriction was now unconstitutional in light of the Supreme Court’s decision in Packingham, the Court joined three other circuits in concluding that a defendant cannot challenge the legality or constitutionality of his supervised release conditions through a motion for modification under 3582(e)(2); that argument must instead be raised on direct appeal or in a 2255 motion.  In any event, the Court noted that its recent decision in Bobal foreclosed the defendant’s constitutional challenge.

Finally, the district court did not abuse its discretion in denying the motion for early termination because the record as a whole supported the conclusion that the district court considered the 3553(a) factors.

Carter: One version of Georgia aggravated assault is not an ACCA violent felony post-Borden

In United States v. Carter, No. 17-15495 (Aug. 3, 2021) (Black, Marcus, Restani), the Court vacated the defendant’s ACCA sentence based on a prior conviction for Georgia aggravated assault with a deadly weapon.

Based on the Shepard documents, the Court was required to assume that the defendant was convicted of a version of Georgia aggravated assault that could be committed with a mens rea of recklessness—specifically, committing an act which places another in reasonable apprehension of immediately receiving a violent injury.  Because that offense could be committed recklessly, the Court had previously held in Moss that it was not a violent felony.  And the Court had reaffirmed Moss after the Supreme Court’s decision in Borden confirmed that reckless crimes do not satisfy the ACCA’s elements clause.