Lester: Full Court Declines to Rehear Whether Johnson Retroactively Applies to the Mandatory Guidelines

In Lester v. United States (Apr. 29, 2019), the full court declined to rehear en banc whether Johnson retroactivley applies to the mandatory pre-Booker residual clause in the Guidelines.

Writing for himself, Judge William Pryor authored a lengthy opinion explaining why any ruling extending Johnson to the Guidelines would not be a substantive rule, and therefore would not have retroactive effect in cases on collateral review.  He emphasized that, unlike in the ACCA context, the defendant's sentence would remain within the statutory ranges authorized by Congress, and he could receive the same sentence today.   He also reasoned, in a lengthy discussion, that judicial decisions don't actually change the law but rather recognize what the law has always been.

Judge Martin, joined by Judges Rosenbaum and Jill Pryor, opined that the Eleventh Circuit's decision in In re Griffin was wrong, both that Johnson did not apply to the mandatory Guidelines and that any such ruling would not be retroactive.

Judge Rosenbaum, joined by Judges Martin and Jill Pryor, wrote separately in response to Judge Pryor's more theoretical comments that the Guidelines were never mandatory at all, and that judicial opinions don't actually change what the law always has been.  "He reasons that since the Supreme Court in Booker found that the mandatory Guidelines violated the Sixth Amendment, they 'were never really mandatory,' even though courts applied them that way for two decades.  Hmm.  I doubt the perhaps 1,000-plus inmates who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree. . . .  Under Pryor's reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment.  This heads-I-win-tails-you-lose logic cannot withstand scrutiny."

Delva: Upholding Identity-Theft and Tax Fraud Convictions and Sentences Over Various Challenges

In United States v. Delva, No. 16-12947 (Apr. 29, 2019) (Hull, Marcus, Grant), the Court affirmed the defendants' identity-theft and tax fraud convictions and sentences.

First, the Court upheld the denial of a suppression motion under the automobile exception because probable cause existed to search the defendant's automobile and, in any event, the evidence would have been inevitably discovered.

Second,  the Court found the evidence sufficient to support that the defendant knowingly participated in the criminal activities--including that the defendant knew that the PII belonged to real people, since the fraud was successfully using that information to obtain tax refunds.

Third, the Court found no abuse of discretion in permitting an experienced detective to testify as an expert about the meaning of jargon used in stolen identity refund fraud.

Fourth, the Court upheld the application of a 2-level enhancement under 2B1.1(b)(15)(B) for possession of a firearm in connection with the offenses.  Amidst all the defendants' fraud-related materials and money, they had a rifle leaning up against the wall in the same room and at the same time as they were conducting their fraudulent activities.  One of the defendants also admitted in a post-Miranda statement that firearms were kept in the house to protect them from being robbed.

Lastly, the Court found the defendant's 84-month guideline-range sentence to be substantially reasonable.

Pavlenko: No Standing to Appeal Dismissal of Indictment

In United States v. Pavlenko, No. 17-15047 (Apr. 22, 2019) (William Pryor, Newsom, Rosenthal), the Court held that the defendant lacked Article III standing to appeal the dismissal of an indictment.

The defendant entered a settlement agreement with the government whereby he would agree to return to Russian and abandon his LPR status in the United States and waive any right to return for ten years.  In exchange, the government agreed to dismissal all charges against him.  After the defendant boarded a flight to Russia, the government moved to dismiss, and the court granted the motion and dismissed the indictment in light of the settlement agreement.  On appeal, the defendant argued that the dismissal order deviated from the settlement agreement and imposed conditions on him to which he never agreed.  The Eleventh Circuit, however, concluded that the order did no more than dismiss the indictment against him.  Contrary to his argument, the court's order did not subject him to the continuing supervision.  Because the district court did no more than dismiss the indictment, and thus did not injure him, the defendant lacked standing to appeal the order.

Gordillo: High-Capacity Magazine Ten Feet Away from Locked Semi-Automatic Was in "Close Proximity" for 2K2.1

In United States v. Gordillo, No. 18-12095 (Apr. 17, 2019) (Marcus, Black, Walker), the Court upheld the defendant's sentence against a guideline challenge.

Specifically, the defendant challenged his base offense level under 2K2.1 on the ground that his offense did not involve a semi-automatic firearm in "close proximity" to a high-capacity magazine.  The Court concluded that a high-capacity magazine in a bag was in "close proximity" to a locked firearm in a case ten feet away in the same room.  The Court interpreted "close proximity" to encompass both physical distance and accessibility.  Here, ten feet was close physical proximity, and the Court rejected the defendant's argument that the firearm was inaccessible just because it was locked in a separate container.

Corbett: Plain Error in Applying Ten-or-More Victims Enhancement Because Means of Identification Were Merely Sold, not Used

In United States v. Corbett, No. 18-13203 (Apr. 17, 2019) (William Pryor, Newsom, Vratil), the Court reviewed for plain error two unpreserved guideline enhancements.

Despite applying that standard of review, the Court found plain error as to the application of the ten-or-more victims enhancement in 2B1.1(b)(2)(A)(i).  Relying on its earlier precedent in Hall, the Court agreed with the defendant that the court had erred by treating as victims individuals whose means of identification had not been "used."  The Court reiterated that merely selling or transferring identifying information was not a "use" of such information under the Guideline.  The Court found that the error satisfied the remaining plain-error criteria under Molina-Martinez and Rosales-Mireles, even though the court varied downward from the (incorrect) range, and so it vacated the sentence and remanded.

The Court, however, found no plain error with regard to a ten-level loss enhancement under 2B1.1.  The Court "remind[ed] the defense bar of the importance of specific factual and legal argumentation at eveyr stage of sentencing proceedings.  A defendant should 'specifically and clearly object' to any facts in a presentece report that she does not intent to admit and that she wishes to require the government to prove by a preponderance of the evidence."

Johnson: 7-5 En Banc Court Upholds Seizure of Free-standing Round of Ammunition During a Terry Risk

In United States v. Paul Johnson, Jr., No. 16-15690 (Apr. 16, 2019), the en banc Court -- by a vote of 7 to 5 -- upheld the constitutionality of the seizure of a single round of ammunition from the defendant's pocket during a Terry frisk.

Writing for the majority, Judge William Pryor (joined by Judges Ed Carnes, Tjofalt, Marcus, Newsom, Branch, and Grant), held that the seizure was permissible under the totality of the particular facts and circumstances of the case because removing it was reasonably related to officer safety.  The Court empashzed that it was 4am, officers had received report of a burglary in a high-crime area, the defendant matched the description of the burglar, the scene was unsecure, and officers reasonably believed that a matching firearm was nearby.  It did not matter that the defendant was handcuffed, since "handcuffs do not always work."  Becaues the Court found its decision controlled by Terry, it rejected the defendant's arguments that Terry was contrary to the original meaning of the Fourth Amendment and should therefore be applied narrowly.

Judge Newsom concurred, opining that he would prefer to adopt a per se rule that an officer is always entitled to seize a bullet during a Terry frisk.

Judge Branch, joined by Judge Grant, concurred, clarifying that the totality of the circumstances approach applies only when determining whether to stop and frisk the person at the outset.  Similar to Judge Newsome, they believed that, if the officer conducting the frisk feels what he reasonably believes to be a weapon, then the officer may seize it under any and all circumstances.

Judge Jordan dissented, criticizing the majority (as well as the concurrences and the government) for failing to meaningfully address the defendant's originalist argument for limiting the reach of Terry.  He explained that, in an earlier opinion, Justice Scalia had determined that Terry was incompatible with the original meaning of the Fourth Amendment, and scholarship supports that view.  And although Terry is binding precedent, it authorized the seizure of "weapons" alone, and Judge Jordan believed that the majority was expanding Terry to permit the seizure of a stand-alone bullet.  His opinion accuses the majority of selectively applying originalism and exempting Terry from originalism even though other Fourth Amendment doctrines are informed by it.

Judge Rosenbaum dissented, interpreting the majority as necessarily and implicitly holding that ammunition may always be seized during a Terry frisk.  She expressly urged the majority to insert a single sentence disavowing that necessary implication of its ruling, but the majority refused.  She criticized that per se rule as a matter of procedure because the government disavowed that rule and the court did not direct the parties to brief it.

Judge Jill Pryor (joined by Judges Wilson, Martin, and Jordan) dissented, opining that the seizure of the ammuntion was unlawful because no reasonable officer could have believed that the bullet posed a threat under the particular facts of the case.  Multiple officers had drawn their guns, handcuffed the defendant, and placed him on the ground; there were no reports or signs of a firearm; there were no other people present; and the defendant complied with all demands.  Like Judge Rosenbaum, she opined that the majority opinion effectively creates a categorical rule authorizing the seizure of a bullet under Terry.  And she opined that the majority opinion impermissibly permits Terry to be used for evidence gathering.

Vereen: Innocent Transitory Possession Defense Unavailable for Felon in Possession Offense

In United States v. Vereen, No. 17-11147 (Apr. 5, 2019) (Marcus, Newsom, Anderson), the Court affirmed the defendant's felon in possession conviction and ACCA sentence.

The defendant's main argument on appeal was that the court erred by refusing to instruct the jury on the "innocent transitory possession defense" (ITP).  The Court concluded that this defense was unavailable because 922(g) did not invite any kind of inquiry into the purpose or timespan of the defendant's possession.  That holding was in line with that reached by the overwhelming majority of the circuits, though the Court observed that the D.C. Circuit had reached a contrary conclusion where the firearm was obtained by innocent means, for no illicit purpose, and for a transitory period of time.  Applying plain error, the Court also rejected the defendant's argument that 922(g) was unconstitutionally vague because the Court had not previously determined whether an ITP defense was available.

As for the ACCA sentence, the Court found that the defendant's Florida aggravated battery convictions qualified under the elements clause under Turner.  And it held that the defendant's Florida battery conviction also qualified under the elements clause because it involved the intentional causation of bodily harm. 

Moss: Georgia Aggravated Assault is Not a Violent Felony Under the Elements Clause

In United States v. Moss, No. 17-10473 (Apr. 4, 2019) (Wilson, Branch, Anderson), the Court held that Georgia aggravated assault did not satisfy the elements clause of the ACCA because it could be committed recklessly.

The Court relied heavily on its prior decision in Palomino Garcia, which held that an Arizona assault offense with a reckless mens rea did not satisfy the elements clause in the Guidelines.  The Court rejected the government's reliance on Turner, which held that Florida aggravated assault qualified under the elements clause.  Looking only to the face of the Florida assault statute, the Court emphasized that Florida assault required an intentional mens rea, whereas Georgia assault did not.  The Court made no mention of Florida case law showing that aggravated assault could be committed recklessly, even though it looked to Georgia case law to establish that proposition in this case.

Cooks: Warrantless Search Supported by Emergency Aid Aspect of Exigent Circumstances Doctrine

In United States v. Cooks, No. 18-10080 (Apr. 3, 2019) (Newsom, Tjoflat, Gilman), the Court upheld the denial of the defendant's motion to suppress.

The Court found that the warrantless search of a crawlspace nailed down by a makeshift plywood door was justified by the "emergency-aid" aspect of the exigent circumstances doctrine.  There was an armed standoff with a gang member that had evolved into a hostage taking situation, and the officers heard drilling sounds coming from the house.  After the standoff ended, and although the officers did not know one way or another, the Court found that they could have reasonably believed that the secured crawlspace contained additional hostages.  And prying open that crawlspace was proportional to the exigency, because the area was large enough to hide a person, and the search took no longer than necessary to verify that nobody was there.

Judge Gilman dissented, opining that nothing suggested that the officers believed or had reason to believe that the defendant was hiding hostages in the crawlspace, let alone that additional people were inside the house.  He disagreed with the majority's reasoning that the officers could have reached that conclusion because they could not have definitively ruled it out.

Gandy: Florida Battery by Bodily-Harm Satisfies the Elements Clause, and Courts May Consider Arrest Reports Incorporated in a Plea Agreement

In United States v. Gandy, No. 17-15035 (Mar. 6, 2019) (William Pryor, Rosenbaum, Conway), the Court held that Florida battery of a jail detainee was a crime of violence under the elements clause in the Guidelines.

Although the parties agreed that Florida battery has two alternative elements -- "touching or striking" and "intentional causation of bodily harm" -- the Court reserved judgment on whether "touching or striking" was divisible.  That is so because it concluded that the defendant's conviction was for "intentional causation of harm," and that form of Florida battery necessarily required the use, attempted use, or threatened use of force.  To arrive at that conclusion, the Court relied on an arrest report.  Although arrest reports are not Shepard documents and ordinarily may not be considered, the Court relied on it here because the report was incorporated by reference into a plea agreement, which was a Shepard document.   And the Court concluded that the defendant agreed to the arrest report as the factual basis of his plea, without qualification. 

Judge Rosenbaum dissented, opining that the Shepard documents did not allow the Court to conclude that the defendant was "necessarily" convicted of bodily-harm battery.  On her view, the factual basis for the plea would have satisfied both the touching/striking and bodily-harm elements, and so the court could not conclude that his offense necessarily was for the latter.  And, on her view, the arrest report only supplied the arresting officer's legal conclusion that the defendant committed bodily-harm battery; it did not necessarily show that this was the type of battery for which he was ultimately prosecuted and convicted. 

Padgett: Pro se Filing Stating Intent to File Collateral IAC Attack was not a Notice of Appeal

In United States v. Padgett, No. 16-16144 (Mar. 6, 2019) (Branch, Wilson, Vinson), the Court dismissed the defendant's appeal for lack of jurisdiction.

The defendant was subject to an appeal waiver and a 2255 waiver, with an exception for claims of ineffective assistance of counsel.  At and after sentencing, the defendant confirmed that he had waived his right to appeal.  Immediately after sentencing, the defendant filed a pro se filing in the district court, notifying the court of her intent to file a collateral attack based on effective assistance of counsel.  The district court docketed that filing as a notice of appeal.  In the Eleventh Circuit, the government moved to dismiss the appeal for failure to file a notice of appeal.  The Eleventh Circuit agreed.  Although it recognized that pro se pleadings are liberally construed, it concluded that the defendant was aware of her appellate waiver, and thus did not intend to file a notice of appeal but rather a collateral attack based on ineffective assistance (a claim typically brought collaterally, not on direct appeal).  Nor was the pro se filing the functional equivalent of a notice of appeal, as it failed to reference an appeal or an appellate court.  That the district court docketed the filing as a notice of appeal was not determinative. 

Judge Wilson dissented, opining that he would liberally construe the pro se filing as a notice of appeal, as the district court construed it as such, and it was properly filed in the district court within the 14-day period to appeal.

Gibbs: Brief Roadside Detention at Gunpoint Was a Lawful Traffic Stop

In United States v. Gibbs, No. 17-12474 (Mar. 6, 2019) (Marcus, Dubina, Goldberg), the Court upheld the denial of a motion to suppress.

Officers observed a vehicle drive into oncoming traffic and illegally park in the middle of the street.  Officers approached the vehicle, with its engine still running, and effectively blocked in (and thus detained) two individuals who had just exited the car.  As the officers approached, with their guns drawn, the defendant blurted out that he possessed a firearm.  The Court first determined that the officers had a lawful basis to detain both men, as the situation arose out of a lawful traffic stop.  The officers were justified in briefly detaining the defendant, even though he was not the driver, because based on their location in between cars, the officers could not have detained the driver without also detaining the defendant, and one of the officers did not know at the time which individual was the driver.  Emphasizing the very brief detention and the dangers associated with traffic stops, the Court determined that the detention was not unreasonable under the particular facts and circumstances of the case.  Finally, the Court determined that the officers did not convert the lawful stop into an unlawful one merely by drawing their weapons; rather, the lawfulness of the encounter turned on the validity of the stop, which was lawful.

Amodeo: Criminal Defendant Lacked Article III Standing to Appeal Order Partially Vacating Final Forfeiture Order

In United States v. Amodeo, No. 15-12643 (Feb. 21, 2019) (William Pryor, Rosenbaum, Moore), the Court held that a criminal defendant lacked Article III standing to appeal the partial vacatur of a final forfeiture order entered in his case.

The preliminary forfeiture order extinguished all of the defendant's interests in the property (here, two shell companies).  After no third parties claimed ownership, the court entered a final order forfeiting the companies to the government.  Subsequently, the defendant's victims brought a lawsuit and named the two companies as defendants.  The government had no interest in defending those companies in the lawsuit, and so it moved to partially vacate the final forfeiture order to divest itself of any ownership in the companies.  The district court granted that request.  The defendant then sought to appeal that order, but the Eleventh Circuit found that it did not aggrieve him in any way.  It reasoned that the preliminary forfeiture order had extinguished his interest in the companies, and the partial vacatur of the final forfeiture order did not revive any ownership interest of his.  Because he had no ownership interest in the companies, and thus no potential liability in the lawsuit, he lacked Article III standing to bring the appeal.

Judge Rosenbaum concurred in the judgment.  She agreed that the defendant lacked standing, but disagreed that Article III standard must always be determined first when more than one non-merits issue could dispose of a case.

Pickett: 2255 Movant Failed to Satisfy Burden of Proof Under Beeman Based on Legal Landscape at Time of Sentencing

In United States v. Pickett, No. 17-13476 (Feb. 20, 2019) (Marcus, Dubina, Goldberg), the Court vacated the district court's grant of a 2255 motion based on Johnson and remanded for reconsideration in light of Beeman.

The Court remanded because Beeman was issued after the district court's order, and so the district court did not have an opportunity to apply Beeman's new standard.  Before reaching that conclusion, however, the Court determined that, in light of the current record and legal landscape, the movant did not meet his burden to show that the sentencing court more likely than not relied on the residual clause alone.  Although the Court acknowledged that the Florida battery convictions at issue obviously satisfied the residual clause in February 2007 -- and the district court's 2255 order included a comment reflecting that understanding -- it was unclear whether the sentencing court also relied on the elements clause.  That was so even though there were unpublished opinions saying that the battery convictions did not categorically satisfy the elements clause, and a contrary statement in a published opinion was only dicta.  Thus, even though the sentencing court would have easily determined that the convictions qualified under the residual clause, obviating any need to consider the elements clause, it was not clear what the sentencing court might have actually thought (if anything) about the elements clause.  Because the Court did not know what genuinely happened in that regard, the movant could not meet his burden of proof under Beeman to show that the court more likely than not relied on the residual clause alone, and the Court remanded for the district court to make that determination in the first instance.

Harris: Upholding Hobbs Act Extortion Conviction of Former Prison Guard

In United States v. Harris, No. 18-12418 (Feb. 19, 2018) (William Pryor, Rosenbaum, Conway), the Court affirmed the defendant's conviction for Hobbs Act extortion.

First, the Court concluded that the evidence was sufficient to support the extortion conviction of the defendant, a former prison guard who discovered and then appropriated for himself a phone scam in which inmates were posing as government agents and tricking victims into paying fake fines in the form of prepaid debit-card numbers.  The defendant argued that the government failed to prove that he obtained the debit card numbers with the "consent" of the inmates, a required element of extortion, because the inmates had no choice but to turn over the numbers.  After an historical overview of the crime of extortion, the Court explained that "consent" in that context did not require such a degree of voluntariness; rather, a victim consents so long as he retains some degree of choice, even if it is a Hobson's choice.  Here, sufficient evidence showed that the inmates consented to the defendant taking their numbers without reporting him so as to avoid implicating themselves in the scam or possessing contraband.  The Court also found sufficient evidence that the defendant wrongfully used fear, one of the alternative means of extortion.

Second, the Court found that the district court did not violate the defendant's right to present a complete defense by limiting his closing argument.  Specifically, the court preventing him from arguing that, although he might have committed theft, he did not commit extortion.  The court, however, did permit him to argue that, while he may have been guilty of some crime, he was not guilty of extortion.  The court did not abuse its discretion by precluding the defendant from arguing that the government should have charged him with theft, as that risk confusing the jury.  And if the jury did not believe he committed extortion, it would have acquitted him.

Caniff: Private Text Messages Seeking Sexually Explicit Photos from a Minor Constitutes "Making" a "Notice" under 2251(d)

In United States v. Caniff, No. 17-12410 (Feb. 15, 2019) (Ebel (10th), Marcus, Newsom), the Court affirmed the defendant's child sex convictions.

First, and primarily, the Court held that, as a matter of statutory construction, requesting that a minor send sexually explicit photos can support a conviction for "making" a "notice" seeking child pornography, in violation of 2251(d)(1)(A).   The Court rejected the defendant's argument that a "notice" must be sent to the general public or at least a group of people.  Because a public component was not required, the defendant's private text messages with the minor sufficed.

Second, the Court found sufficient evidence that the defendant believed that the victim was a minor.  The victim told the defendant several times that she was 13, was not old enough to drive, and was sexually inexperienced. 

Third, the Court found no abuse of discretion in permitting an officer to testify about the contents of the defendant's cell phone.  The Court rejected the defendant's argument that the officer opined on the ultimate issue, in violation of Rule 704(b), because the officer was not testifying as an expert witness, and lay witnesses may draw on their professional experiences.  In addition, the officer did not expressly opine on the defendant's mental state about the age of the victim, only whether he generally found evidence of illegal activity on the phone.  And any error was harmless in any event because it was the defense, not the government, who first asked the detective the question.

Judge Newsom concurred in part and dissented in part. After discussing his favorite movie and opining that the defendant's conduct was "devlish," he reluctantly opined that the majority's reading of 2251(d) was incorrect and did not reach the defendant's conduct.  As a matter of common language, sending a request via text message was not "making" a "notice."  He found that the word "notice," as used in that particular statutory context, would not be understood by the average American to cover a private text message.  And he rejected the majority's purposive approach, as the defendant's conduct was covered by other statutes.

Valois: Upholding Title 46 Convictions and Sentences over Numerous Challenges

In United States v. Valois, et al., No. 17-13535 (Feb. 12, 2019) (Hull, Jordan, Grant), the Court affirmed the defendant's MDLEA convictions over numerous challenges.

First, the Court rejected the defendants' constitutional challenges to the MDLEA as foreclosed by circuit precedent.  Specifically, it rejected their arguments that Congress lacked authority to define and punish felonies on the high seas where there is no connection to the U.S.; that due process prohibited the prosecution of foreign nationals without a nexus to the U.S.; that the MDLEA violates the Fifth and Sixth Amendments by removing jurisdictional facts from the province of the jury; and admission of the Secretary of State certificate to establish jurisdiction violates the Confrontation Clause.

Second, the Court found no abuse of discretion in the denial of the defendants' motion for a mistrial based on the prosecutor's reference in closing arguments to a separate drug seizure.  The reference was not evidence and so did not violate Rule 404(b), and it was the defendant who interjected the prior seizure.  The prosecutor understandably sought to refute the defendant's reliance on that prior seizure.  And the defendants had not shown that the comment was prejudicial given the court's curative instruction to the jury.

Third, the Court rejected the defendants' argument that their Sixth Amendment rights were violated because their attorneys represented defendants involved in the separate drug seizure, and thus had a conflict of interest.  At the time counsel was appointed, there was no known connection between the two seizures; because a connection first arose during the trial, the court was not required to hold a conflict-waiver hearing before the trial began, and the court did hold such a hearing before sentencing.  Moreover, the defendants did not show that their attorneys had any actual conflict because they in fact tried to shift the blame on to the defendants involved in the other seizure.  The Court noted that, in the future, when two boat cases with cocaine are interdicted close in time and geography, and two indictments are filed on the same day, the magistrate judge should consider appointing separate counsel for each defendant because a conflict could have arisen had a defendant one on boat testified against a defendant on the other boat.

Fourth, and relying on prior precedent, the Court held that the defendants were statutorily ineligible for safety-valve relief, and this ineligibility did not violate equal protection.  The Court also suggested, without formally deciding, that the safety valve did not violate the right against self-incrimination by requiring defendants to provide the government with all the information they had, relying on circuit precedent rejecting a similar challenge to the acceptance of responsibility guideline.

Lastly, the Court upheld the denial of a minor-role reduction. 

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."