Monday, November 16, 2009

Insider-outsider political discrimination

In Corey Airport Services v. Decosta (Edmonson, Birch, Cox), Corey, "a self-proclaimed political outsider," claimed that the City rigged the bidding for advertising services at the Atlanta airport so as to favor the "political elite." According to Corey, this decision violated the equal protection clause by differentiating among bidders based upon their political clout. The individual defendants successfully claimed qualified immunity. Reversing the district court's denial of summary judgment, the Eleventh Circuit held that precedent did not make clear that the defendants' actions violated any clearly established constitutional right. Indeed, the Court noted that Corey's "claims of insider-outsider political discrimination present not only novel factual circumstances, but also a novel question of law."

The third time is not the charm

In United States v. Livesay (Dubina, Birch, and 6th Circuit visitor Siler), the Court held that a probationary sentence for a former executive at Health South was an unreasonable sentence. Since this appeal represented the third government appeal (and remand), the Eleventh Circuit clarified that any probationary sentence in this case would be unreasonble in light of the magnitude and seriousness of Livesay's conduct. Wonder what will happen on remand . . . .

Tuesday, November 10, 2009

Capital habeas petition denied

In Pardo v. Sec'y, Florida Dept. of Corrs., the Eleventh Circuit (Birch, Black, Wilson) affirmed the denial of Pardo's capital habeas petition. Pardo, a former police officer, testified at trial that he killed the victims because they were drug dealers, "parasites" and "leeches" who had no right to be alive. Pardo also testified that after he killed each victim, he took a picture of the body to capture the victim's spirit and then burned the picture in a special ash tray. At the penalty phase, Pardo called himself a "soldier" and asked for the death penalty to be imposed. After considering the jury's verdict and the aggravating and mitigating circumstances, the trial court imposed the death penalty. On 2254 review, the Court rejected Pardo's competency claims, a claim of ineffective assistance of counsel premised on the competency claims, an ineffective assistasnce claim based on a severance argument, and a Brady claim.

Drugs don't grow on trees

In United States v. Brown, the Eleventh Circuit (Carnes, Fay, and 9th Circuit visitor Alarcon) analyzed a drug conspiracy centered around local marketplaces called "trees." In rejecting a severance argument, the Court found that Brown had forfeited that argument by failing to raise it before the district court. The Court next examined Brown's conspiracy conviction, set forth the law in the Eleventh Circuit surrounding conspiracies, and stressed that conspirators need not know each other but must only facilitate the conspiracy. Third, the Court found that Brown's convictions six years before the conspiracy charged in the indictment were not too remote for 404(b) purposes. The Court also upheld Brown's 924(c) conviction. As for co-defendant Hall, the Court rejected his material variance argument and affirmed on authentication grounds the district court's decision allowing the admission of a copy of a tape of a controlled buy.

Monday, November 2, 2009

A little something about everything

In United States v. Tate (Oct. 30, 2009, Carnes, Fay, and 9th Circuit visitor Alarcon), the Court addressed issues involving probable cause to search, the proper way to preserve a Batson challenge, and sufficiency of the evidence. It also concluded that Segarra -- which rejected the argument that section 924(c)'s "except" clause "means that if [a defendant's] mandatory minimum sentence for the drug offenses is greater than the mandatory minimum for the firearm offense, the two sentences cannot run consecutively" -- applies to a crime of violence, like bank robbery. (Note that Segarra rejects the Second Circuit's view and sides with every other circuit to have decided the issue.) Finally, the Court rejected Tate's substantive reasonableness challenge to his sentence.

Reservation of rights . . . the certified questions

In World Harvest Church v. GuideOne Mutual Insurance Co. (Oct. 30, 2009; Carnes, Fay, Alarcon, a 9th Circuit visitor), the Court certified to the Georgia Supreme Court three questions about the reservation of rights under an insurance policy. Here, GuideOne defended a lawsuit for almost a year, and then determined that there was no coverage under the policy. It stopped defending the suit, and the policy holder hired its own attorney. The plaintiff in that suit and the policy holder eventually settled for $1 million, and the policy holder then filed suit against GuideOne to treat the earlier judgment as covered under the policy. The Court needed answers to three questions: 1) Did the insurer effectively reserve its rights? (The Court believed that it did not.) 2) Does the waiver and estoppel doctrine require a showing that the insured was actually prejudiced by the insurer's assumption of the defense? and 3) If actual prejudice must be shown, does this case show it?

Inquiring minds may want to know what the World Harvest Church did. Gause, a member of that church, ran a Ponzi scheme with another man, causing investors to lose about $165 million. Gause donated a great deal of money to the church, including a $1 million wire transfer to a Cayman Islands bank account. A receiver in the criminal case against Gause sought return of $1.8 million in donations, and when the church declined, this case ensued.

The question is moot

In Beta Upsilon Chi v. Machen (Oct. 27, 2009, Tjoflat, Edmonson, Hill), the Court discussed at length the University of Florida's nondiscrimination policy for registered student organizations and Beta Upsilon Chi's Christian focus . . . and then found that the controversy was moot when UF changed its policy and allowed Beta Upsilon Chi to become a registered student organization. The case contains a nice summary of the law of justiciable controversies, including voluntary cessation.

Tuesday, October 27, 2009

No qualified immunity for excessive use of Taser

In Oliver v. Fiorino, the Eleventh Circuit (Marcus, Hill, D.J. Vorhees) affirmed the denial of summary judgment on qualified immunity grounds to officers participating in the Taser-related death of Carl Oliver. Oliver, who had been using cocaine, flagged down Officer Fiorino as he stood on a median in the highway. When Fiorino stopped, Oliver tried to get in her squad car; she told him to move away, and he did. From 23 feet away, Fiorino asked Oliver what the problem was, and a "very fidgety" Oliver said that someone was shooting at him. Oliver first started to walk away, and then approached Fiorino, who raised her Taser and said to step back. He did. A back-up officer, Burk, arrived, to find Oliver shouting again in the median. The officers conferred about taking Oliver into custody under Florida's mental health laws, but they did not. Oliver complied with the officers' request for identification, but when Burk tried to force Oliver across the street (and out of traffic), Oliver struggled and pulled away from him; Burk held onto Oliver's shirt. Oliver did not swing at Burk or try to grab him.

Without warning, Fiorino tased Oliver for the first time, a jolt that brought him to the ground. Once Oliver was on the pavement, he never tried to get up, and he never kicked, hit, or threatened the officers. Nonetheless, Fiornio continued to tase Oliver -- somewhere between 8 and 12 times -- and paused to reload her Taser after one of the wires became stuck in Oliver's chest. Oliver began foaming at the mouth, and the paramedics who arrived recorded his temperature as 107 degrees. He died a few weeks later from the Taser-related injuries. Oliver's estate brought Fourtheenth Amendment-based claims for excessive force against various defendants, including the officers.

The Court found that the use of the Taser was not objectively reasonable. A single tase may have been, but the repeated tasering (resulting in Oliver's incapacitation) was not. While no binding precedent had clearly established that repeated use of a Taser constituted excessive force under these circumstances, the Court found that a reasonable officer would have realized that her use of force was excessively disproportional to the circumstances so as to make it unlawful: Again, Oliver was not accused of a crime, did not act aggressively, and complied with the officers' directives.

Monday, October 26, 2009

Money laundering and legal fees

In United States v. Velez (Barkett, Hull, D.J. Quist), the government lost its appeal about the meaning of the plain language of 18 U.S.C. §1957(f)(1), which excludes from the scope of §1957(a) "any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." Here, the defendants were a Miami attorney, a Columbian attorney, and a Columbian accountant. They had been hired by an accused Colombian drug dealer's legal defense team to determine whether funds earmarked for legal fees were derived from criminal proceeds. After his review, the Miami attorney issued an opinion letter that the funds from the accused dealer to him, as an intermediary, were not comprised of the proceeds of criminally derived property.

The Court held that the district court was "eminently correct" in holding that the defendants (the Miami attorney, the Colombian attorney, and the Colombian account) were not subject to criminal prosecution under §1957(a) in light of the plain language of the exemption in §1957(f)(1). In doing so, the Court distinguished the discussion of attorney's fees in Caplin & Drsydale as involving a statute involving civil forfeiture of criminally derived proceeds; indeed, the Court believed that Caplin & Drysdale supported the conclusion that such proceeds had been statutorily exempted from criminal penalties. has more about this case at this link.

Post-Begay and Chambers, walkaway escape is not a crime of violence

In United States v. Lee (Edmonson, Birch, Cox), the Court held that walkaway escape was not a crime of violence (career offender) or violent felony (ACCA) after the Supreme Court's decisions in Begay v. United States, 128 S. Ct. 1581 (2008), and Chambers v. United States, 129 S. Ct. 687 (2009). The Court also held that Lee, a passenger in an automobile who claimed no property or possessory interest in the car, lacked standing to challenge the search of that car. (Lee holds a soft spot in the heart of your blogger: It was my last argument as an Assistant United States Attorney.)

A police citizen encounter based upon apparent ethnicity

In United States v. Quintana, the Court (Carnes, Fay, 9th Cir Judge Alarcon) affirmed the denial of motions to dismiss and suppress based upon the defendant's contention that police initiated a consensual encounter with him solely because they believed he was of Pakistani or Middle Eastern descent. (He was Mexican.) The Court discussed United States v. Avery, 137 F.3d 343 (6th Cir. 1997), which concluded that a Fourteenth Amendment violation may occur if a person is stopped solely because of his race or ethnicity. Nonetheless, the Eleventh Circuit determined that it did not need to decide the question presented in Avery since the record showed that Quintana's apparent ethnicity was not the sole reason the officers initiated the consensual encounter.

Wednesday, October 21, 2009

More Flores-Figueroa

In United States v. Ross, the Court (Barkett, Pryor, Kravitch) found that a defendant's stipulation that she "used a social security number belonging to an M.D." and her confession that she "used my name and someone else's social security number" satisfied the willfulness requirements imposed on aggravated identity fraud convictions under §1028A by Flores-Figueroa.

Court shoots down application of Flores-Figueroa to 922(g)

In an unpublished opinion, the Court (Tjoflat, Marcus, Anderson) rejected the notion that Flores-Figueroa overruled circuit precedent about the mens rea requirement of §922(g)(1). For full details, see United States v. Coney.

Monday, October 19, 2009

I demand a jury trial! (But not correctly, it turns out)

In a diversity action over the proceeds of a life insurance policy, the Eleventh Circuit (Carnes, Pryor, and district judge Dowd) found that a jury demand made in the amended answer by the insured was not timely under Fed. R. Civ. P. 38, and that the insured's counterclaim raising the same issues and making a jury demand did not constitute "new issues" under Rule 38 so as to make a timely jury demand. Among other things, the Court goes on to discuss the law of the case doctrine. For all the details, see Mega Life v. Pieniozek, No. 08-14414 (Oct. 19, 2009).

Bench trial vs. jury trial: The mash-up

What's a district judge to do when one defendant wants a jury trial and the other defendants want a bench trial as to drug quantities only? Run them simultaneously, with all defendants present; the jury not being told that the other defendants had pleaded guilty and sought a bench trial as to quantity only; the bench trial defendants' lawyers cross-examining quantity witnesses; and the verdict form relating to the jury trial defendant only. Although the Eleventh Circuit (Edmonson, Birch, and district judge Hodges) was not prepared to endorse this tactic, it found no reversible error especially in the absence of prejudice to the defendants. Check out the opinion at United States v. Chavez, No. 08-12683 (Oct. 16, 2009).

FDCPA and your answering machine

With a preamble referencing a quote about the Vietnam War -- "we had to destroy the village to save it" -- Judge Carnes (joined by Judge Fay and Judge Alarcon, a 9th Circuit visitor) found that a creditor could not receive the protection of the bona fide error defense under the Fair Debt Collection Practices Act where it failed to inform the debtor in an answering machine message that it was a debt collector calling to collect a debt. The reason for the omission? The creditor was concerned that including this information in an answering machine message could be heard by the debtor's roommate, thereby leading to a violation of the FDCPA. Read the full opinion in Edwards v. Niagra Credit Solutions, No. 08-17006 (Oct. 14, 2009).

We meant what we said in Ambert.

Not that there was any doubt, but the Eleventh Circuit this week upheld another Commerce Clause challenge to SORNA, relying on its prior decision in Ambert. For good measure, the Court cites its prior precedent rule, which reminds the reader that Ambert is good law unless and until reversed en banc or by the SCOTUS. For full details -- although there aren't many more -- check out the opinion in United States v. Myers, No. 09-10228 (Oct. 13, 2009).

Tuesday, October 13, 2009

Cert. grant in Holland v. Florida

In August 2008, the Eleventh Circuit (Edmonson, Marcus, Pryor) held that "no allegation of lawyer negligence or of failure to meet a lawyer's standard of care -- in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment, or so forth on the lawyer's part -- can rise to egregious attorney misconduct that would entitle the Petitioner to equitable tolling" under the AEDPA. For equitable tolling, pure professional negligence was not enough; instead, the Court looked for something more -- like affirmative misrepresentations about the filing time (see Downs v. McNeil) to justify equitable tolling.

This isn't the final word: The Supreme Court granted cert. in Holland today. Habeas lawyers, be governed accordingly.

And so it begins . . . .

After a large public outcry -- okay, the inquiry of three or four friends who asked whether I was ever going to begin blogging -- I present the Eleventh Circuit blog. Check back here for summaries of opinions and news from and for appellate practitioners.