Over the last 12 months, the active judges on the Eleventh Circuit resolved an average of 628 appeals per judge. Put another way, assuming a Monday-Friday work week with no vacations, each judge ruled on 2.4 appeals each day. That is the second-highest per-judge rate in the nation (only the judges of the Fifth Circuit resolved appeals at a higher rate). Here are four recent examples of those appeals:
In US v. Burnette, we find a primer on 18 U.S.C. § 201, the federal bribery statute, and McDonnell v. US, 579 U.S. 550 (2016), the Supreme Court’s interpretation of the statute. The lesson amounts to this: It’s a bribe when a thing of value compels a public official to act upon a sufficiently serious and concrete matter. Corollary: Burnette’s conviction is affirmed. Burnette violated the Hobbs Act and honest-services fraud statutes when he brought together two fictitious real-estate developers (undercover agents) to bribe a corrupt Tallahassee city commissioner. One trial objection was of prurient interest. During the undercover investigation, on a trip to Las Vegas, one agent paid for the city commissioner to obtain a “premium” service at a strip club. The agent denied having done that, then admitted to having done that after hearing himself discuss having done that on a recording after he had just done that. The trial court excluded the “oral-sex evidence” (the panel’s words, not ours) because it violated the rule against using extrinsic evidence to attack a witness’s character for truthfulness. But wait, says Burnette, the agent’s lies prove his bias toward the government, not his character for truthfulness. The Eleventh Circuit panel recognizes the distinction between “credibility or bias, on the one hand, and [] character for truthfulness, on the other” under Federal Rule of Evidence 608(b), and notes that the district court “perhaps incorrectly” excluded the oral-sex evidence. But (and wow!) the panel went on to hold that “even if we might have decided the other way if it had been our choice, we cannot say that the district court abused its discretion.” [By Alejandro Fernandez].
The trial in US v. Downs began in Pensacola, Florida, during hurricane season. After a jury was selected, but not yet empaneled, a hurricane came ashore and cut off roads, bridges, and internet around the courthouse. After the storm passed, the judge had a telephone call with the lawyers―but without Downs―to discuss what to do about the jury. The judge decided to release the unsworn jury and start over with a new jury at a later date. That new jury convicted Downs of production of child pornography. Neither the jury swap nor Downs’s absence from the phone conference could get him a new trial. Jeopardy does not attach to an unsworn jury and Downs did not have a constitutional right to be present at this phone conference. What about Rule 43 of the Federal Rules of Criminal Procedure? Although Downs did have a right to be present under Rule 43 and it was error to exclude him, the panel applied plain-error review, and held that the error did not affect Downs’ substantial rights. Practice tip: Don’t forget to object under Rule 43 if there is a right-to-presence issue. Downs also argued that the government failed to prove the interstate commerce element of the child pornography production charge. Downs took the offending photographs with his Samsung phone and transferred them to a hard drive on his computer. The government proved the hard drive was manufactured in China, but offered no evidence about where the phone was manufactured. Downs argued that since the images were produced using the phone, there was no evidence to satisfy the interstate commerce element. Like a hurricane, the panel blew away that argument, and held that the act of transferring the images to the hard drive qualifies as production. Because the production involved the Chinese hard drive, the government proved the interstate (or foreign) commerce element. [By Brian Mendelsohn].
The government’s job of proving that a defendant knowingly participated in a drug conspiracy just got a little easier. In US v. Morel, Morel was arrested inside a coastal Florida home where a shipment of cocaine had recently arrived on a fishing boat. There was no evidence that he had ever been on the boat, in the presence of the cocaine, or privy to any communications about what was being delivered. Invoking the “Prudent Smuggler Doctrine,” the panel found that the jury could infer Morel’s knowledge from circumstantial evidence, and that they could reasonably infer that “a prudent smuggler is not likely to suffer the presence of unaffiliated bystanders.” The panel further noted, “when the orchestrator of a conspiracy vests substantial trust in an associate to contribute to the scheme, a jury may infer the associate’s knowing participation” and that “the smuggler will likely apprise him of the transaction’s essential details, including the nature of the contraband involved.” It appears that a showing that a defendant was “likely apprised of the transaction’s essential details” is sufficient to prove the essential element of knowledge. [By Caitlyn Wade].
In US v. Hall, the Eleventh Circuit addressed the circumstances under which a term of home confinement can be imposed after a supervised release violation. After several violations led to Hall’s term of supervised release being revoked, he faced up to up to three years of additional supervision—with the possibility of spending up to two of those years in prison. The district court sentenced him to the statutory-maximum two years in prison to be followed by an additional year of supervised release, including home confinement. On appeal, a unanimous panel vacated the sentence because, says the statute, home confinement may be used to punish a supervised release violation or as a condition of supervised release “only as an alternative to incarceration.” The panel explained that an “alternative” is a choice between two things, so the district court here may only sentence Hall to home confinement if it could have sentenced him to incarceration for the same period of time. Because Hall was sentenced to the statutory maximum two years in prison, the district court did not have the authority to sentence him to an additional year of home confinement, and the sentence must be vacated. [By Dan Huddleston].