Adams v. Austal: Panel Concludes that Plaintiffs Asserting a Hostile Workplace Claim Cannot Rely on Evidence of Harrassment of Which They Were Not Personally Aware

Adams v. Austal USA, No. 12-11507, from SDAl

 

Circuit Judge Pryor joined by Senior Circuit Judge Cox and District Judge Rosenthal (SDTx)

 

Summary: The plaintiffs sued the defendant for a racially hostile workplace. This case consolidated the claims of 26 different employees. The district court granted summary judgment in favor of the defendant in 13 of those claims; 13 proceeded to trial—only 2 of the trial claims were at issue in this appeal, and the jury found for the defendant on both of those claims.

First, the panel considered the grant of summary judgment. Of particular note, the panel determined that the district correctly limited its consideration of incidents of racial harassment to incidents of which the individual employees were aware.  A district court should not consider evidence of racial harassment of other employees that the plaintiff did not know about.

 

However, the district court went on to determine that seven of the thirteen employees had presented a genuine dispute of material fact regarding whether there was an objectively hostile working environment. These grants of summary judgment were accordingly vacated and remanded for the district court to consider whether the defendant was entitled to summary judgment on the ground that it was not directly or vicariously liable for the harassment.

Second, the panel addressed challenges to several rulings made by the district court during trial.  The district court did not err when it excluded evidence of harassment of which the employee was not personally aware and which was unrelated to their supervisors (this evidence would have been admissible in rebuttal, however, to prove the ineffectiveness of an antiharassment policy).

Under a Faragher defense, an employer can avoid liability for a hostile work environment by maintain an effective policy against harassment. The district court also did not err when it permitted the defendant to offer evidence of this policy.

The jury verdicts were accordingly affirmed, as were the rest of the summary judgments.

In re John Ruthell Henry: Divided Panel Rejects Condemned Murderer's Last-Minute Request to File a Habeas Petition Based on Hall v. Florida, Which Panel Concludes is Not Retroactively Applicable in Issue of Nationwide First Impression

In re John Ruthell Henry, No. 14-12623, from MDFla

 

Majority opinion by Circuit Judge Marcus, joined by Circuit Judge Pryor: In the third published execution appeal opinion issued the night of June 17, 2014, Judge Marcus denied the petitioner's request for relief (Judge Marcus was a member of the panels for all three opinions). 

 

This petitioner sought to stay his execution under the recently decided Supreme Court decision in Hall v. Florida, 134 S. Ct. 1986 (2014), claiming that he was mentally disabled and could not be executed.  The petitioner killed his estranged wife, kidnapped his wife’s son and then killed the five-year old child. 

The majority described Hall as standing for the proposition that a State cannot execute a person whose IQ test score falls within the test’s margin of error unless he has been able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.  Essentially, according to the panel, Hall allows an inmate who scores within the range of error on an IQ test (i.e. 70-75) to present additional evidence regarding difficulties in adaptive functioning.   The petitioner had scored a 78 on a test in 1986.

Based on this test score and Hall, he sought leave to file a second/successive petition for a writ of habeas corpus in the district court to further address his intellectual disability.  The majority concluded that he did not meet the second/successive petition standard because he did not argue actual innocence, and his claim was not based on a new rule of constitutional law made retroactive to cases on collateral review. (At this point the majority dropped a footnote to quibble with the dissent: the dissent argued there was no need to address retroactivity, but the panel stated that “we do not see how we can fairly avoid addressing the stringent statutory requirements erected by Congress” and  noted that they could find no circuit case where an appellate court avoided addressing the retroactivity requirement and simply decided whether the applicant put forward a sufficient showing of possible merit. The majority also made reference to the fact that the petition was not filed until June 14, even though the execution was taking place nearly 29 years after the murder).

 

With respect to the retroactivity analysis, a case announces a new rule if the result was not dictated by precedent existing when the defendant’s conviction became final.  The majority concluded that Hall did announce a new rule of constitutional law.  However, the majority also concluded that this new rule was not retroactive to cases on collateral review: the Supreme Court must have held that the new rule is retroactively applicable to cases on collateral review. In a footnote, the majority went on to explain that it would find a rule retroactive only if the Supreme Court has clearly dictated that it is. Thus, since the rule was not retroactive, the filing of a successive petition was not authorized.

Moreover, even if it was retroactive, an applicant must show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in his successive petition, and the petitioner had not made such a showing.  Since the only IQ score in this case showed the petitioner had an IQ of 78, he did not fall within the 70-75 IQ range or lower which is a prerequisite for invoking Hall.  The majority chastised the dissent for suggesting that a defendant should still be allowed to present evidence about deficiencies in adaptive functioning regardless of his IQ score.

The panel denied his application for leave to file a second petition, and denied his motion for a stay of execution.

Dissent: Circuit Judge Martin.

 

First, the dissent argued that it was imprudent to decide a complicated retroactivity issue when it was unnecessary to do so, primarily because the majority’s decision that the petitioner could not show a reasonable likelihood of succeeding on his petition foreclosed his claim.  The dissent also argued that Hall: (1) may not have even announced a new rule at all (which is a slightly ridiculous conclusion); (2) is retroactive on collateral review because the post-conviction context of the review tells us that the Supreme Court intended its holding to apply to all cases on collateral review; and (3) is retroactive because it is a substantive rule that expands the class of persons who are categorically ineligible for the death penalty.  

 

The dissent also argued that the majority should not have relied on findings of the psychologists who evaluated the petitioner for competency to be executed (although the majority insisted it did not do so).

Note: As an indication of how far to the left Judge Martin is, the Supreme Court denied the petitioner’s request for a stay of execution without any noted dissent.

Wellons v. Ga. Dep't of Corrections: In Second Wellons Case, Panel Denies Stay of Execution, But Judge Wilson Notes Concern with Georgia's Death Penalty Secrecy Law

Wellons v. Ga. Dep’t of Corrections, No. 14-12663-P, from NDGa

 

Majority Opinion: Per Curiam opinion joined by Circuit Judge Tjoflat and Circuit Judge Marcus:

 

This is the second of two published opinions concerning Mr. Wellons issued on June 17, 2014.  The petitioner was convicted of murdering and raping a 15-year old in 1993. He filed this 42 U.S.C. § 1983 action seeking a temporary restraining order and a declaration that Georgia’s refusal to disclose information concerning the origin of the lethal injection drugs and the qualifications of the execution team violated his constitutional rights.  He further challenged the Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36(d), which makes the manufacturer of lethal injection drugs a confidential state secret. 

First, the panel considered whether these claims were time-barred under the two year statute of limitations for Section 1983 claims in Georgia.  A method of execution claim accrues on the later of the date when a state review is complete or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.  The majority found that the possibility that neither the risk that the State would use adulterated pentobarbital, nor the adoption of the Lethal Injection Secrecy Act established a significant alteration in the method of execution.  Accordingly, the last substantial change in the execution protocol occurred in 2001, when Georgia switched from the electric chair to lethal injection, and the petitioner’s claims were time-barred.

Second, the panel rejected the claim that the Eighth Amendment entitled the petitioner to information about the nature or source of the drug to be used in his execution.  Speculation that the drug would lead to severe pain or suffering does not constitute evidence that the drug is sure or very likely to cause serious injury and needless suffering.

Third, the panel rejected challenges (under the First, Fifth, and Fourteenth Amendments) to the State’s refusal to provide him with information related to his execution, specifically the source of drugs and qualifications of persons performing the execution. The panel found that none of these amendments afforded the petitioner the broad right to know where, how, and by whom the lethal injection drugs would be manufactured.

 

The petitioner's request for a stay of execution was accordingly denied.

 

Concur in Judgement by Circuit Judge Wilson: Judge Wilson concurred in the judgment, but wrote separately to note what he described as the “disturbing circularity” problem created by Georgia’s secrecy law. He believed that without information about the drug used in the execution, it was impossible for the petitioner to meet his burden.  He also believed that “[u]nless judges have information about the specific nature of a method of execution, we cannot fulfill our constitutional role of determining whether a state’s method of execution violates the Eighth Amendment’s prohibition against cruel and unusual punishment before it becomes too late.”

 

Wellons v. Ga. Dep't of Corrections: In First of Two Published Opinions, Panel Denies Motion to Stay June 17, 2014 Execution Due to Irregularities in Clemency Proceeding

Wellons v. Ga. Dep’t of Corrections, No. 14-12681-P, from NDGa

 

Per curiam order joined by Circuit Judge Tjoflat, Circuit Judge Marcus, and Circuit Judge Wilson.

Summary: This is one of two published opinions concerning Mr. Wellons issued on June 17, 2014.  In this two-page opinion, the panel addressed his appeal from the district court’s order denying his motion to stay his pending execution (set for June 17, 2014). Specifically, he alleged that, as a result of the defendant’s actions, at least one corrections officer who was previously willing to provide a statement in support his clemency now refused to do so for fear of losing his job.

The panel noted that the Supreme Court has recognized a “very limited due process interest in clemency proceedings” but that the petitioner failed to show a substantial likelihood of success on his claim that he enjoys a due process or other constitutional right with respect to his petition for clemency.

 

Note: The Eighth Circuit recently addressed this issue en banc on the same day.  The opinion is here (although strangely not available on the Eighth Circuit's official site).  The opinion in that case was 7-4. 

Johnson v. Conner: Alabama Jailor Immunity Statute Not Retroatively Applicable

Johnson v. Conner, No. 12-15228, from MDAl

Senior District Judge Huck, joined by Chief Circuit Judge Carnes and Circuit Judge Wilson

Summary: The panel decided whether a new Alabama statute granting sovereign immunity to jailors, Ala. Code § 14-6-1, applied retroactively or prospectively.  The case arose in the context of an inmate’s suicide.  The plaintiff sued multiple corrections personnel as defendants, and the defendants moved to dismiss claiming that they were entitled to state law immunity under the new law.  In this case, the statute came into effect after the acts of which the plaintiff complained.

The issue was whether the statute applied retroactively.  Applying Alabama law, the panel concluded that it did not because there was no indication that the act expressly stated, or that the legislature otherwise intended, that the act would apply retroactively.

The district court’s order denying the defendant’s motion to dismiss was thus affirmed.

In re: Wellcare Health Plans: Company That Was an Unindicted Co-Conspirator and Which Admitted to Being a Co-Conspirator to Underlying Fraud Was Not a Victim Under CVRA and MVRA

In re: Wellcare Health Plans, No. 14-12422-B, from MDFla (Petition for Writ of Mandamus)

Per curiam order by Circuit Judge Hull and Circuit Judge Jordan.

Summary: The petitioner sought a writ of mandamus declaring it to be a victim under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, and the Mandatory Victims Restitution Act, 18 U.S.C. §3663A.  The petitioner had been charged in a criminal information charging it with conspiring through its former officers and employees to violate Florida healthcare programs.  The petitioner entered into a deferred prosecution agreement, whereby it agreed to stipulated facts stating that it knowingly and willfully conspired to execute a scheme and artifice to defraud Florida healthcare programs of $40 million dollars and agreed to pay $40 million in restitution and $40 million in civil forfeiture, as well as to fully cooperate with the ongoing government investigation.

A federal grand jury subsequently indicted the petitioner’s former CEO, CFO, and various vice presidents for healthcare fraud and making false statements.  The jury found several of these persons guilty of either healthcare fraud or making false statements.  Notably, the petitioner was named as an unindicted co-conspirator.

Subsequently, the petitioner sought restitution from three of the defendants who were found guilty of healthcare fraud.  When the district court denied the petitioner’s motion to be labeled a victim for purposes of restitution, the petitioner filed this petition for mandamus.

First, the panel concluded that a writ of mandamus under the CVRA was subject to review under general appellate mandamus principles, meaning that it was subject to only a clear abuse of discretion standard.
 

Second, the panel examined whether the district court abused its discretion.  The CVRA explicitly provides that a person accused of the crime may not obtain any form of relief as a victim, whether restitution or otherwise.  The panel concluded that the petitioner was not a victim under either the CVRA or the MVRA because it admitted that it was a co-conspirator in the underlying fraudulent conduct.

The panel accordingly found that the district court did not abuse its discretion and denied the petition for a writ of mandamus.

Note: Pursuant to 18 U.S.C. § 1771(d)(3), a court of appeals must take up and decide an application for a writ of mandamus within 72 hours after the petition has been filed.  Thus, there is a quick turnaround time for such petitions and they may be decided by a single circuit judge, although the Eleventh Circuit typically has a panel of two judges assigned.

Carlson v. United States: Panel Creates Circuit Split with Second and Eighth Circuits in Determining that the Government Must Prove that Civil Tax Fraud by Clear and Convincing Evidence

Carlson v. United States, No. 12-13736, from MDFla

Senior Circuit Judge Cox, Chief Circuit Judge Carnes and Circuit Judge Hull

Summary:  The plaintiff filed a declaratory action against the IRS to determine her liability for $148,000 in tax penalties assessed by the IRS for aiding and abetting an understatement of tax liability in violation of I.R.C. § 6701.  The plaintiff worked for Jackson Hewitt for approximately five years as a tax return preparer.  She prepared individual and corporate tax returns using a computer program.  The IRS eventually audited the Jackson Hewitt for which the plaintiff worked and determined that deductions could not be substantiated on approximately 40 of the 1200 returns on which she worked. She was assessed penalties, of which she paid 15% and then filed for a refund.  After the refund claim was denied, she filed this suit to determine her liability.

The government conceded 13 of the penalties at summary judgment, but the remaining 27 were tried to a jury.  On appeal, the plaintiff raised two issues.  

First, the plaintiff argued that the district court had erred by instructing the jury that the standard of proof was a preponderance of the evidence.  The panel concluded that the proper burden of proof was clear and convincing evidence, because the government must prove fraud in civil tax cases by such a standard.  This was required because § 6701 has a requirement of actual knowledge, meaning that the government must prove fraud, which in turn must be proved by clear and convincing evidence.

This conclusion differed from decisions reached by the Second and Eighth Circuits, which have held that the proper standard of proof is only a preponderance of the evidence and thus creates a circuit split.  Because many of the penalties were supported by only weak evidence, the panel concluded that this error was not harmless. 

Second, the plaintiff argued that the district court erred by denying her motion for judgment as a matter of law with respect to several penalties. Since the panel concluded that for each of the challenged penalties the government presented no evidence suggesting actual knowledge that the returns understated the correct tax, it concluded that no reasonable jury could find for the government on these penalties and accordingly reversed the district court’s denial of the motion for judgment as a matter of law.  Interestingly, the panel noted that an auditor’s finding that a return understated the correct tax did not show actual knowledge of inaccuracy because “[h]igh error rates are normal even among the IRS’s own tax preparers.”

The district court’s judgment was accordingly reversed in part with respect to the denial of the motion for judgment as a matter of law, and vacated and remanded in part for a new trial using the proper standard of proof.

Apologies for My Hiatus

The Eleventh Circuit was extremely busy last week.  Indeed, on one day (Wednesday) they issued a total of nine published opinions, which is nearly more than they had issued in the previous month! I am trying to catch up, but summaries for the next few days will be somewhat untimely.

United States v. Folk: Panel Upholds Seizure of Hunting Weapons in Search for Drugs

United States v. Folk, No. 12-15126, from SDFla

Circuit Judge Tjoflat, Circuit Judge Wilson, and District Judge Proctor (N.D. Al)

Summary: The defendant, a previously convicted felon, was convicted of possessing a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced pursuant to 18 U.S.C. § 924(e) (which provides a mandatory minimum sentence of 15 years for a person convicted of an offense under § 922 who has three prior convictions for a violent felony or serious drug offense) to 180 months imprisonment.

First, the defendant challenged the denial of a motion to suppress evidence seized during a search of his home pursuant to a warrant.  He asserted that the seizure was not authorized under the scope of the warrant or the plain view doctrine.  The warrant did not specifically authorize the seizure of firearms and there was nothing inherently illegal about the firearms to warrant their seizure under the plain view doctrine.

The panel first addressed the argument regarding the scope of the warrant, noting that typically firearms are so connected to the sale of narcotics that their seizure is implicitly authorized by a warrant to search for narcotics. Here, the panel intimated some concern, however, because the weapons seized were for hunting, and the officers executing the warrant indicated that they did not have any suspicion that these weapons were actually used in drug transactions.

Nevertheless, the panel rejected the challenge to the seizure because it found that the weapons could be seized under the plain view doctrine. The weapons were lawfully observed during the protective sweep and during the search for narcotics pursuant to the warrant.  And, the facts available to the officers executing the warrant indicated that it was reasonable to believe that the weapons were contraband since they were in the possession of a convicted felon.

 

Second, the defendant argued that the preemptory strike of a black juror violated Batson v. Kentucky, 476 U.S. 79 (1986). The panel found that the striking of two out of three black veniremembers did not demonstrate a pattern of discrimination, particularly because the defendant conceded that there were clear reasons for striking one of them. Further, the prosecution offered a nondiscriminatory and sincere reason for striking the black juror, namely that the prosecutor had trouble hearing the juror’s answers and that the juror had a friend who was on multiple years’ probation for a drug offense.

Third, and lastly, the panel rejected the defendant’s sufficiency of the evidence challenge to his conviction.

The defendant’s convictions were affirmed.

Eleventh Circuit Nominations Moving Forward

Judge Julie Carnes and Jill A. Pryor are moving ahead to a vote in the Senate Judiciary Committee. Both are expected to pass and would then need to be confirmed by the full senate.  I will provide updates when a date is set.

You can see this press release from Senator Chuck Grassley indicating that the confirmations are moving forward.

United States v. Feliciano: In Revised Opinion, Judge Martin is Forced to Remove Negative Comments About U.S. Attorney

United States v. Feliciano, No. 12-15341, from MDFla

Circuit Judge Martin, joined by Circuit Judge Pryor, and Senior District Judge Gold (SDFla)

Summary: This opinion is very interesting because it sheds a small crack of light on some of the inner workings of the Eleventh Circuit, and especially on the personalities of some of its judges.

 

This panel opinion grants a petition for rehearing and vacates a prior panel opinion.  The result does not change, but, as the panel itself notes, “[w]e have modified certain language from our previous opinion in this case,” specifically related to comments about prosecutorial misconduct.

To briefly summarize the revised opinion, the defendant was convicted of attempted bank robbery, using a firearm during those robberies, and being a felon in possession of a firearm.  The panel rejected a challenge to the sufficiency of the evidence.  It then held that the district court did not abuse its discretion in denying the defendant’s request for an expert examination and MRI (even though it was hard to fathom) because the defendant sought not only the costs for a medical expert, but also transportation and escort from prison to the expert’s facility.

Next, it rejected the defendant’s evidentiary challenge to a phone call between the defendant and his brother that the government played to impeach the brother. The defendant argued that the recording should have been addressed when the brother was on the stand, but the panel concluded he had waived any error.  Furthermore, Eleventh Circuit precedent allows a recorded impeaching statement to be introduced after a witness testifies—there is no particular time or sequence required for Rule 613(b)’s foundation requirement.

The panel also rejected any cumulative error claims premised on prosecutorial misconduct.  The defendant specifically complained about the government’s references to testimony given about his medical condition and the fact that the government dismissed the testimony because there was no recent MRI—which is exactly what the defendant had asked the district court to permit him to have.

The panel did credit and accept the defendant’s argument that the evidence was insufficient to support a conviction for using and brandishing a firearm in the commission of a robbery, and that conviction was vacated. The panel noted that it was concerned about the government’s decision to prosecute this charge because the evidence showed that the only gun the defendant owned was sold prior to the robbery, stating that “[w]e expect more from United States prosecutors.”

Accordingly, the panel affirmed all of the defendant’s convictions other than his conviction for using and brandishing a firearm in the commission of a robbery which was reversed.

The interesting stuff: The original panel opinion was different in one very important respect and in one minor respect.  With respect to the prosecutorial misconduct charge based on statements about the lack of a recent MRI, the panel stated only that the defendant conceded at oral argument that this was not unfair since the district court did not abuse its discretion in denying expert services, and that the statement did not prejudice the defendant.

The original panel opinion was far more critical of the prosecution on this point stating that:

[W]e cannot say that this statement during closing prejudiced Mr. Feliciano’s substantial rights. At the same time we are troubled by what the government did here.  The government knew before it made its closing argument that Mr. Feliciano had requested expert assistance in receiving a recent MRI.  The government was also aware that the court had denied Mr. Feliciano’s private request for a new MRI, but still attacked him before the jury for not having one.  This conduct does not meet the standard we expect of United States prosecutors.  Cf. Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation is to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”).

This paragraph drew a special concurrence by Judge Pryor, stating that the prosecutor should not have been faulted for asking perfectly legitimate questions and asserting that the majority failed to explain why the conduct at issue fell short of what is expected of federal prosecutors.

All of this language, as well as Judge Pryor's concurrence, is gone in the new opinion.  So Judge Pryor's position won the day. Why? Probably because one or more judges (in addition to Judge Pryor) felt that the language in the majority opinion was improper and, when the opinion was circulated prior to the issuance of the mandate, asked that this language be removed.  This is not the first time that Judge Martin has provoked strong negative reactions from her colleagues.  It should also be noted that she is a former federal prosecutor herself.

The other minor change to the opinion was related to a change in the language characterizing the district court’s decision to deny the expert MRI from stating that “the District Court needlessly stood in the way of his obtaining evidence for his expert” to “it is hard to fathom why the District Court denied Mr. Feliciano’s request to get an MRI he was willing to pay for” (it’s unclear to me though that Mr. Feliciano was willing to pay for the MRI, since he was requesting funds to do just that?!). Perhaps this language was removed because other judges felt it to be needlessly insulting to the district court? 

United States v. Davis: In Important Decision, Panel Holds that Warrantless Collection and Use of Cell Phone Location Data Violates the Fourth Amendment

United States v. Davis, No. 12-12928, from SDFla

Senior Circuit Judge Sentelle (D.C. Cir.) joined by Circuit Judge Martin and Senior Circuit Judge Dubina.

Summary:  The defendant was convicted of Hobbs Act robbery, conspiracy, and knowing possession of a firearm in furtherance of a crime of violence and was sentenced to approximately 162 years in prison. The defendant appealed challenging the admission of cell phone location information in violation of the Fourth Amendment, prosecutorial misconduct, evidentiary sufficiency, and his sentence. 

First, with respect to the Fourth Amendment issue, the defendant  argued that the prosecution should not have been permitted to introduce records obtained from cell phone providers which evidenced that he had placed and received phone calls in close proximity to the sites of many of the robberies.

The panel began its discussion of this section by noting that this was an issue of first impression in this circuit which had not been definitively decided in other circuits either.  The evidence sought to be admitted consisted of records obtained from cell phone service providers under the Stored Communications Act, which allows the government to obtain these cell phone records from subscriber services when the government has either a warrant or a court order.  The court order does not require a showing of probable cause.

The evidence obtained consisted of cell site location information which includes a record of calls made by the cell phone owner and shows which cell tower carried the call to or from the customer, which will normally be the cell tower closest to the customer. This allows the extrapolation of the location of the cell user at the time of the call.

The panel began by reviewing opinions from other courts.  In In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010), the Third Circuit vacated a magistrate judge’s order declining to order a service provider to furnish information by court order and instead directing the government to seek a warrant to obtain the information (although the Third Circuit did indicate that in appropriate circumstances a magistrate might require a warrant showing probable cause).  Meanwhile, the Fifth Circuit in In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir. 2013), reversed a district court order denying the government’s request for an order furnishing cell phone records, while holding that the compelled production of records on statutory grounds was not per se unconstitutional.  Nevertheless, the panel declined to engage with the reasoning of these cases because the context was different and because one was decided before Jones.

The panel next turned to a discussion of Jones and two competing views of the Fourth Amendment.  The older theory is that the Fourth Amendment protects property rights (the trespass theory).  The newer theory is that the Fourth Amendment guarantees the privacy rights of the people without respect to whether the alleged search constituted a trespass against property rights.

The panel traced the newer theory to Olmstead v. United States, 277 U.S. 438 (1928), which held that wire-tapping did not constitute a search within the meaning of the Fourth Amendment.  This view was overturned in Katz v. United States, 389 U.S. 347 (1967), which relied upon a privacy theory to hold that interception of a conversation in the absence of a physical trespass was unconstitutional, since the Fourth Amendment extended to the recording of oral statements overheard without any technical trespass.

Turning to Jones itself, the panel noted that Jones involved the legality of introducing information from a GPS tracking device that had been attached to a car without a warrant (the warrant had authorized installation during a period of ten days, and the device was installed on the eleventh day).  All nine members of the Court agreed that the introduction of this evidence violated the Fourth Amendment, although their rationales differed.  A five member majority resolved the case under the older trespass analysis finding that because the agents committed a trespass when they installed the device, there was no need to determine whether any reasonable expectation of privacy had been violated. The four-Justice concurrence written by Justice Alito resolved the case under the privacy analysis, finding that a reasonable expectation of privacy was violated by the long-term monitoring of vehicle movements.

Based on language in both opinions, the panel concluded that the privacy theory applied to the search and seizure of electronic information in the absence of a trespass.

The panel then concluded that the warrantless gathering of cell site location data violated the defendant’s reasonable expectation of privacy.  First, the panel noted that a single point of cell phone location data was more private than multiple points of location information provided by a GPS attached to a car, because a car is visible to the public, but a person can assume that their movements to various locations are relatively private even if not conducted in a public way. The panel reasoned that because a cell phone can accompany its owner anywhere, even when the owner’s whereabouts are not public, even one point of cell site location data can be within a reasonable expectation of privacy and that cell site data is therefore more like communications data (i.e. telephone conversation) than like GPS information. 

The panel rejected the argument that because the cell site location data was not “precise” in terms of the location it disclosed, it was not private information. The panel stated that while it would perhaps be possible that information could be sufficiently imprecise to be outside the zone of a reasonable expectation of privacy, that was not the case here.  The panel concluded that a person has a reasonable privacy interest in being near a variety of locations.

The panel also gave short shift to the argument that the cell phone owner abandoned a reasonable expectation of privacy in his cell site location when he placed a call.  The panel distinguished Smith v. Maryland, 442 U.S. 735 (1979), which authorized the use of a pen register to record numbers dialed from a defendant’s telephone, because the cell site location data—unlike a phone number—was not voluntarily turned over to third parties and because most persons would not know that their cell phone provider was collecting location data.

Based on all of this reasoning, the panel concluded that a Fourth Amendment violation occurred when the cell site location data was introduced.  However, the panel concluded that the good faith exception to the exclusionary rule applied.

 

Second, the defendant challenged several “questionable” statements made by the prosecutor in his closing argument, specifically statements that there was blood in the getaway car and statements that improperly bolstered the government’s witnesses.  The panel found only the bolstering troubling—specifically the statement that the government witness had told the prosecutor the same story 100 times since his confession.  The panel found that the comments did not have any prejudicial effect. 

Third, he raised challenges to his sentence enhancements, specifically an enhancement for brandishing a weapon.  United States v. Alleyne, 133 S. Ct. 2151 (2013), requires that every fact which increases a mandatory minimum sentence must be submitted to the jury.  Since the “brandishing” enhancement was not submitted to the jury, it could not be used at sentencing to enhance the mandatory minimum.  Under a plain error analysis, the panel concluded that the error in this case affected the defendant’s substantial rights because the jury found only that the defendant possessed a firearm, only one witness testified that a gun was pointed at her, and there was no evidence that the defendant was the one who did so.

Fourth, the panel rejected a proportionality challenge to his 162 year sentence and his challenge to the sufficiency of the evidence.  In rejecting the latter challenge, the panel applied Rosemond v. United States, 134 S. Ct. 1240 (2014), which held that a defendant may be convicted of aiding or abetting the offense of using or carrying a firearm during a crime of violence if it proves that the defendant actively participated in the underlying violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.

The defendant’s conviction and most of his sentence were affirmed, although the portion of his sentence attributable to the brandishing enhancement was vacated.

Note: The panel here applied to the plain error analysis to the Alleyne “brandishing” claim because it was not raised below.  However, earlier in the week, an opinion authored by Judge Hull held that plain error review always applies to after-the-fact claims of Alleyne error, even when the error is preserved.

Note: This case might be a candidate for en banc review.  The Fourth Amendment analysis laid out is somewhat shaky, and there is only one active Eleventh Circuit judge who joined this opinion (given the importance of this issue, I find it somewhat surprising that the opinion was assigned to a visiting senior circuit judge!).

United States v. Cubero: Panel Rejects Double-Counting Challenge to Guidelines Enhancements for Distribution of Child Pornography While Stating that February 2013 Sentencing Commission Report Does Not Render Non-Production Child Pornography Guidelines Invalid

United States v. Cubero, No. 12-16337, from SDFla

Circuit Judge Hull joined by Senior Circuit Judge Cox and Senior Circuit Judge Farris (9^th Cir.)

Summary: The defendant appealed his sentence of 151 months (and a life-term of supervised release) after pleading guilty to one count of distribution of child pornography and two counts of possession of child pornography, arguing that his sentence was procedurally and substantively unreasonable.

The defendant admitted that he used a peer to peer file sharing network on his home computer to download and view child pornography and placed some of his child pornography into a shared folder on his computer that allowed other people to access the files.

The defendant challenged the reasonableness of his sentence under the Guidelines, which is evaluated under a two-step process: (1) did the district commit any significant procedural error?; and (2) is the sentence substantively unreasonable under the totality of the circumstances? 

First, the defendant raised a double-counting challenge.  18 U.S.C. § 2252(a)(2) criminalizes the knowing receipt or distribution of any visual depiction of child pornography or the knowing reproduction of any such visual depiction for distribution.  The Guidelines provide a base offense level of 22 for this offense and also call for a two level increase if the defendant distributed child pornography.  The defendant argued that the two level increase added for distribution was double-counting, because distribution was an essential element of the underlying offense.

The panel rejected this argument because a violation of 18 U.S.C. § 2252(a)(2) may occur where the defendant knowingly distributes child pornography and where the defendant knowingly receives or reproduces child pornography.  Thus, distribution is not an essential element of the offense and is not required to violate 18 U.S.C. § 2252(a)(2). The Sentencing Commission acted within its authority by differentiating between the potential harm caused by receipt and by distribution by providing a two-level increase for distribution.

Second, the defendant argued he was entitled to a two-level decrease because his conduct was limited to the receipt or solicitation of child pornography and/or he did not intend to traffic in or distribute such material.  This argument was rejected in short order, since the defendant had pled guilty to knowingly distributing child pornography.

Third, the panel rejected a smorgasbord of general challenges to the procedural reasonableness of the sentence.

Fourth, the defendant raised a substantive reasonableness challenge to his sentence and supervised release term. The panel noted that the 151 month sentence was at the bottom of the guidelines range and well-below the statutory maximum, which were two indicators of reasonableness. 

Fifth, and lastly, the panel spent eight pages discussing a February 27, 2013 report issued by the U.S. Sentencing Commission regarding federal child pornography offenses (the panel chose to address the report because the defendant had made it a “centerpiece” of his appeal).  The report concluded that the current non-production guidelines warranted revision because the enhancements did not account for an offender’s use of modern technology and are thus outdated and disproportionate, the Guidelines failed to account fully for some offenders’ involvement in child pornography communities, and the Guidelines produce overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application.  The report further questions the appropriateness of the current Guidelines for non-production cases where the offender used peer-to-peer file sharing and the Internet to receive and distribute pornography.  The report agrees with the DOJ’s recommendation that Congress must enact legislation providing the Commission with express authority to amend the current guidelines provisions because the non-production  child pornography guidelines were promulgated pursuant to specific congressional directives.

The panel agreed with the government that the Commission’s report did not render the non-production child pornography Guidelines invalid. The panel specifically noted that the absence of empirical evidence is not an independent ground that compels the invalidation of a guideline (cf. Kimbrough v. United States, 552 U.S. 85 (2007), which held that a lack of empirical evidence supporting a guideline was one factor a court could consider in exercising discretion to depart from the guidelines).

The defendant’s sentence was accordingly affirmed.

Unpublished Opinion Bartley v. Florida Intracity Patrol: Rude Reversal for New Federal District Judge

Unpublished Opinion Report

This blog rarely covers unpublished opinions, but the opinion in Bartley v. Florida Intracity Patrol, Inc., is notable for several reasons.  First of all, it is a 22 page unpublished opinion, which discusses the facts and law in some detail (based on the writing style, I would bet that the unsigned per curiam opinion was probably drafted by Judge Carnes’ chambers). 

 

Second, it directly takes the district court’s reasoning to task.  Often, in a polite reversal opinion, the panel does not even mention (or at least does not directly quote) the district court’s reasoning. 

This is not one of those opinions.  There are extensive quotes from the district court’s opinion.  (See slip opinion at 12-13, 20).  There is also explicit and strong disagreement with the district court’s conclusions.  (See slip opinion at 20 (“Each of the [district] court’s underlying premises, stated or unstated, is wrong.”); see also id. (noting that district court “wholly ignored” facts, “erroneously surmised,” and “mistakenly assumed”).) 

 

The main problem was that the district court had concluded that a plaintiff could make out a claim for an unlawful detention even where the plaintiff conceded that the detention was lawful! The panel also found that the district court erred in responding to a jury question without first notifying the parties and giving them an opportunity to be hard.   

Suffice it to say that the panel was not pleased with how the district court decided this case and let Judge Honeywell (a recent appointee of President Obama) know about it.

Wetherbee v. The Southern Company: In Issue of First Impression, Panel Holds that Section 12112(d)(3)(C) of the ADA Requires a Plaintiff to Prove He is Disable

Wetherbee v. The Southern Company, No. 13-10305, from NDGa

Circuit Judge Wilson joined by Senior District Judge Bucklew (MDFla) and Senior District Judge Lazarra (MDFla)

Summary:  The district court granted summary judgment to the defendant on his Americans with Disability Act (ADA) discrimination claim under 42 U.S.C. § 12112(d)(3)(C) (which provides that an ADA violation occurs if medical evaluation information is used in violation of some other provision of the ADA).  The plaintiff was extended a job offer contingent upon satisfactory completion of a medical evaluation.  During the evaluation, he informed the defendant that he suffered from bipolar disorder and, despite his healthcare provider’s recommendation, was not being treated by a psychiatrist. The defendant determined that the plaintiff could be hired only if he was restricted from working on safety-sensitive systems and equipment, and because the position required that he work on such systems and equipment his job offer was rescinded.  The district court granted summary judgment to the defendant based on the ADA’s business necessity affirmative defense, finding that the restriction which led the defendant to rescind the job offer was job-related and consistent with business necessity. 

The issue of first impression discussed in this appeal was whether § 12112(d)(3)(C) requires a plaintiff to prove he is disabled.  Agreeing with the Seventh and Tenth Circuits, the panel concluded that a plaintiff must prove that he is disabled (i.e. that he is a qualified individual with a disability) in order to show that any restriction imposed violated the ADA.  The panel accordingly found that because Plaintiff was not disabled, there was no discrimination and the plaintiff’s § 12112(d)(3)(C) claim failed as a matter of law.

The district court’s grant of summary judgment was accordingly affirmed.

Note: This case was previously before the Eleventh Circuit in 2011 when a panel affirmed the district court’s grant of summary judgment to the defendant under § 12112(a) of the ADA, but remanded the case to allow the district court to address the plaintiff’s claim under § 12112(d)(3)(C). 

Breslow v. Wells Fargo Bank: Published Panel Opinion Addressing Supposed Issue of First Impression Under the TCPA Vacated Because the Issue--the Meaning of the Term 'Called Party'--Had Already Been Decided by a Prior Panel

Breslow v. Wells Fargo Bank, No. 12-14564, from SDFla

Per curiam opinion joined by Circuit Judge Tjoflat, Circuit Judge Wilson, and District Judge Proctor (ND Al)

Summary: The panel vacated the original 19-page opinion issued on June 5, 2014, which was authored by Circuit Judge Tjoflat, and substituted a new five-page opinion in its place.  The plaintiff alleged that Wells Fargo made multiple calls using an autodial system to her cell phone number.  The Telephone Consumer Protection Act of 1991 (TCPA) makes it unlawful to make a call using an autodial system to a cellular telephone without the prior express consent of the called party.  Wells Fargo did not have the plaintiff's consent to use an autodial system. 

Wells Fargo argued that a former customer had provided the cell phone number on an account application and that because this former customer was the called party and had consented to such a call, the TCPA did not apply.  The district court concluded that the plaintiff, rather than the former customer, was the called party.  Wells Fargo then filed an interlocutory appeal, which was granted to determine the proper meaning of the term called party. 

In the revised panel opinion, the panel noted that in Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir. 2014), which was not mentioned in the first opinion, a previous panel had concluded that a called party means the subscriber to the cell phone service.  Since the former customer was not the subscriber to the cell phone service, Wells Fargo’s argument was rejected. 

The district court’s grant of partial summary judgment to the plaintiff was accordingly affirmed.

Note: The original opinion had a much fuller discussion of the issue and concluded that “called party” meant the subscriber to the cell phone service or user of the cell phone called.  The panel concluded that the plain meaning of the term was ambiguous and consulted the legislative history to reach this result.  The opinion also considered a previous Seventh Circuit opinion on the same issue as persuasive. 

 

The Osorio opinion (decided by a panel of Senior Circuit Judge Anderson, Senior Circuit Judge Gilman (6th Cir., author), and District Judge Johnson (NDAl), also found the Seventh Circuit’s opinion persuasive and determined that the called party did not mean intended recipient. 

 

In my view, Judge Tjoflat’s original vacated opinion was a more complete and concise discussion of the called party issue, but it is now consigned to the dustbin of vacated opinions because neither the parties nor the court noticed the Osorio decision!

United States v. King: Alleyne Requires that "Brandishing" a Firearm Must Be Alleged in the Indictment, but Panel Nonetheless Upholds 1,062 Month Sentence Because Harmless Error Analysis Applies

United States v. King, No. 12-16268, from SDFla

Per curiam opinion joined by Circuit Judge Hull, Senior Circuit Judge Black, and Senior Circuit Judge Farris (9^th Cir.)

Summary:  The defendant appealed his convictions for conspiracy to interfere with interstate commerce and interfering with interstate commerce via armed robbery in violation of 18 U.S.C. § 1951(a).  He also appealed his convictions for using or carrying a firearm in violation of 18 U.S.C. § 924(c)(1)(A).  He was sentenced to 1,062 months of imprisonment.

First, the defendant argued that there was no evidence that the gun he used met the definition of a firearm under 18 U.S.C. § 921(a)(3) and that his conviction under 18 U.S.C. § 924 should accordingly be reversed.  Based on United States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002), the panel rejected this argument, as Woodruff held that the government need not prove to a scientific certainty that a defendant is carrying a device that fires projectiles by means of an explosive.  The government  has no burden to offer the gun itself into evidence or to produce an expert witness, but must simply introduce sufficient testimony, which includes lay witness testimony, to prove beyond a reasonable doubt that the defendant used or carried a firearm.  Here, the testimony of victims that the firearm that the defendant used was in fact a firearm was sufficient. 

Second, the defendant argued that the district court erred by refusing to give a jury instruction regarding the unreliability of cross-race identifications, i.e. that persons who are not African Americans could not accurately identify an African American in a photo lineup.  The panel rejected this argument because there was no evidence adduced at trial to support this assertion.  The panel further held that the court’s instruction, which did not mention race ,but which explained that the jury must determine whether an identification was accurate, was sufficient.

Third, the defendant asserted that the photographic lineup used to identify him was unduly suggestive because he was the only person wearing a white tank top, which was the same type of shirt worn by the alleged robber.  An identification may be excluded only if the identification procedure created a very substantial likelihood of irreparable misidentification and the identification did not contain sufficient indicia of reliability.  The Eleventh Circuit applies a two-part test to this evaluation: (1) was the original identification procedure unduly suggestive; and 2) was the identification nonetheless reliable under the totality of the circumstances.  The panel rejected and did not address this argument because the defendant failed to argue that the identification was not reliable, even though he contended that the procedure was unduly suggestive.

Fourth, the defendant argued that cumulative errors by the trial court warranted reversal of his convictions because he was deprived of a fair trial.  The panel made short work of this challenge, finding that the defendant had failed to identify any errors.

Fifth, and lastly, the defendant challenged his sentence.  The most important challenge invoked Alleyne v. United States, 133 S. Ct. 2151 (2013), and asserted that the district court erred by imposing a seven-year mandatory minimum sentence for brandishing a firearm during a crime of violence because “brandishing” was an element of the offense that had to be proved to the jury beyond a reasonable doubt.  Since this element was not charged in the indictment or found by the jury, he argued that his convictions under § 924(c) needed to be vacated. 

In Apprendi the Supreme Court held that other than the fact of a prior conviction any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  Next, Harris held that the Apprendi rule did not apply to facts that increase a defendant’s mandatory minimum sentence.  Harris was recently overruled by Alleyne which found that the distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum was inconsistent with Apprendi.  Thus, Alleyne holds that any fact that increases the mandatory minimum is an element of a crime that must be submitted to a jury.  Since brandishing a firearm during a crime of violence is an element of an 18 U.S.C. § 924(c)(1)(A)(ii) offense, the panel agreed with the defendant that the fact of brandishing must be proved beyond a reasonable doubt.

 

The panel nonetheless rejected the defendant’s argument.  It found that even preserved claims of Alleyne violations are subject to harmless error review (like Apprendi violations).  Thus, even though the government conceded error, the panel found that the error was harmless because it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty of brandishing the firearm absent the error.

The defendant also argued that his § 924(c)(1)(C)(i) convictions for a second or subsequent conviction under § 924(c) needed to also be found by a jury.  The panel rejected this argument by relying on Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that the government does not need to allege in the indictment or prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence. 

The panel then rejected a reasonableness challenge to the defendant’s sentence.

Accordingly, the defendant’s conviction and sentence were affirmed.

United States v. Rodriguez: Panel Finds that General Order No. 41 Properly Declared a Judicial Emergency Based on Vacancies within the Eleventh Circuit

United States v. Rodriguez, No. 12-14629, from SDFla
 

Per curiam opinion joined by Senior Circuit Judge Anderson, Senior District Judge Schlesinger (MDFla), and Senior District Judge Moody

Summary:  The original panel opinion was unpublished, but this published opinion addressed an issue raised by the appellant in a petition for rehearing.  The appellant-defendant challenged Eleventh Circuit General Order No. 41 entered by Chief Judge Carnes on December 30, 2013, which declared a judicial emergency pursuant to 28 U.S.C. § 46(b) because of continuing judicial vacancies in the Eleventh Circuit and permitted decisions to be rendered by panels which did not contain a majority of judges of the Eleventh Circuit.  Specifically, the appellant-defendant argued that the vacancies existing on the Eleventh Circuit were not an emergency for purposes of the statute.

The panel held that the defendant had waived this challenge because he was informed of the composition of the panel two weeks before oral argument.  However, the panel alternatively concluded that the emergency caused by four long-standing vacancies on a twelve-judge court—which has a heavy caseload per judge even with a full complement of judges—was an emergency contemplated by the statute.  In support, the panel cited two orders from the Fifth Circuit declaring judicial emergencies in light of two and three vacancies and a heavy caseload per judge. 

Note: I previously noted other published opinions from panels that consisted of no active Eleventh Circuit judges (i.e. a senior Eleventh Circuit judge plus two visiting judges).  However, this opinion may be unique in that it is composed of zero active judges from any court.  It is also noteworthy that there are more Middle District of Florida than Eleventh Circuit judges on this panel! Perhaps the caption should read the United States Court of Appeals for the Middle District of Florida?

Wiand v. Lee: Panel Affirms Recovery in Ponzi Scheme Clawback Action Because Transfer of Investor Funds to Other Investors Was Property of the Debtor for Purposes of Florida Law

Wiand v. Lee, No. 13-10448, from SDFla
 

District Judge Fuller (M.D. Al.) joined by Circuit Judge Martin and Senior Circuit Judge Anderson
 

Summary: The plaintiffs sued the defendant trustee under the Florida Uniform Fraudulent Transfer Act (“FUFTA”), seeking to void distributions of profits from the trust to various receivership entities that were used to perpetrate a Ponzi scheme.  The district court granted summary judgment to the plaintiff receiver.  The defendant trustee appealed the grant of summary judgment; the plaintiff cross-appealed the denial of pre-judgment interest on profits that the defendant was ordered to return.

Essentially, this was a “clawback” action to recover profits from investors in a Ponzi scheme run by Arthur Nadel.  The trust held accounts with both of the plaintiff entities, who were run by Mr. Nadel and heavily involved in the scheme, and received distributions from those entities from 2000 through 2008 (the scheme collapsed in 2009), profiting by more than $900,000.  The plaintiff receiver sued seeking return of these false profits to partially compensate investors who suffered net losses on their investments.

The panel first considered whether Mr. Nadel’s transfer of receivership funds to the defendant trustee was a transfer of “property of a debtor” as required by FUFTA.  The panel concluded, as a matter of first impression for the Eleventh Circuit, that proof of a transfer made in furtherance of a Ponzi scheme establishes actual intent to defraud under § 726.105(1)(a) without the need to consider whether there were additional badges of fraud.  The receiver had standing to sue on behalf of the plaintiff receivership entities because they were harmed by Mr. Nadel when he transferred profits to investors from the principal investments of others.  The grant of summary judgment was therefore affirmed.

Next, the panel considered whether the order denying pre-judgment interest should stand.  The amount of prejudgment interest sought was nearly $440,000.  This claim was made under Florida law, and a plaintiff is typically entitled to prejudgment interest when a judgment is entered on liquidated damages in its favor.  There are three factors a court should consider in determining whether to award prejudgment interest on equitable grounds: (1) when a government entity is concerned, whether it would be equitable to put the burden of paying interest on the public in choosing between innocent victims; (2) whether it is equitable to allow an award of prejudgment interest when the delay between injury and judgment is the fault of the prevailing party; and (3) whether it is equitable to award prejudgment interest to a party who could have, but failed, to mitigate its damages. 

 

Since the district court (acting through the magistrate judge) failed to actually apply these factors, the panel found that the district court had abused its discretion.  The panel cited several Florida cases showing that the award of prejudgment interest in FUFTA cases was routine and ordered the magistrate judge to “cite specific equitable considerations recognized under Florida law that would result in a different outcome than the cases cited above.”

Accordingly, the district court’s grant of the plaintiff’s motion for summary judgment was affirmed, but the denial of the motion for prejudgment interest was reversed and remanded with instructions.