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Preview: The 11th Circuit Appeals Blog

The 11th Circuit Appeals Blog

The 11th Circuit Appeals Blog provides a summary of the published and important unpublished opinions of the United States Court of Appeals for the Eleventh Circuit. This blog is not associated with the Court; for the Eleventh Circuit's website, please vi

Updated: 2014-10-14T13:16:42.970-07:00


Footnote 7


In his characteristically snappy writing style, Judge Carnes summarized conflicting opinions with parentheticals that read "Bull!" and "au contraire." Read footnote 7 of United States v. Harris to see what I mean. But also read the rest of the opinion; it adds to the emerging body of law about what is a violent felony under the Armed Career Criminal Act. Here, Harris was convicted of sexual battery on a child under the age of 16 under Florida statute §800.04(3) (1996). The Court found that that conviction was not a violent felony under the residual clause of the ACCA. Why? "Because the Florida statute, viewed categorically, imposes strict liability and covers such a broad range of conduct, we cannot say that a violation of it typically involves 'purposeful,' 'violent,' and 'aggressive' conduct" under Begay.

The need to file a timely motion for reconsideration


Reminding the reader that a timely notice of appeal is a jurisdictional requirement in a civil case, the Eleventh Circuit dismissed as untimely an appeal where the motion for reconsideration was filed a week late. It never hurts to check the rules, and if you need a little something to scare you into doing that, check out Green v. DEA, No. 07-15334.

Categorical approach;one type of agg assault not a crime of violence


The Eleventh Circuit addressed yet another "crime of violence" issue under Shepard and Taylor in United States v. Garcia, No. 09-10534. There, in the context of the 16 level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii), the Court found that an Arizona conviction for aggravated assault was not a crime of violence. First, the Court rejected the government's argument that the name of the conviction was determinative: "We . . . hold that the label a state attaches to an offense is not conclusive of whether a prior conviction qualifies as an enumerated offense under §2L1.2." Second, after considering opinions from the 5th, 6th, and 9th Circuits, the Court addressed the elements that a generic aggravated assault must contain -- it "involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon." The Arizona statue of conviction did not require either serious bodily injury or the use of deadly weapon; it only required a simple assault with an aggravating factor that the victim was a law enforcement officer. Third, as for the "use of physical force" consideration under §2L1.2, the Court determined that the Arizona statute's mens rea could be satisfied by recklessness, which was insufficient.

Other cases (week of March 29, 2010)


LeBlanc v. Unifund CCR Partners considered a Fair Debt Collection Practices Act issues under 15 U.S.C. §§1692e(5) and 1692f, reversed the grant of partial summary judgment to plaintiff, and remanded the matter for trial.

Mid-Continent Casualty Co. v. American Pride Building Company, LLC addressed duty to indemnify provisions in an insurance contract under Florida law.

SFM Holdings, Ltd. v. Bank of America Securities, LLC affirmed the dismissal with prejudice of a complaint seeking damages for breach of fiduciary duty and constructive fraud in a securities case.

Class action decision


In Sacred Heart Health Systems v. Humana Military Healthcare Services, the Court reversed the district court's determination under Fed. R. Civ. P. 23 to certify a class in a case brought by 260 hospitals against Humana. Why? The Court agreed with Humana that "many important uncommon questions raised by this litigation overwhelm the one common issue and render the case unsuitable for class treatment." For instance, breach of contract claims are "peculiarly driven by the terms of the parties' agreement, and common questions rarely will predominate if the relevant terms vary in substance among the contracts." (The Court noted that a form contract would better suit class certification.) The Court also noted the differences in the applicable state laws governing those contracts. The Court acknowledged the disparity in power between Humana and "even the largest of the class members here." Nonetheless, it remanded the case to the district court to determine whether any subset of the claims or class members might be suspectible of fair and efficient class treatment.

1983 opinion -- deliberate indifference to medical need


In Townsend v. Jefferson County, the Court considered the actions of deputies in responding to the medical needs of a pregnant detainee who used crack cocaine daily. The undisputed evidence showed that both deputies knew that a nurse at jail and seen and spoken with the detainee, and it was undisputed that the nurse determined that the detainee's medical need was not an emergency. The detainee later suffered a miscarriage while incarcerated. She sued the deputies, claiming that they violated her civil rights under the 14th Amendment by acting with deliberate indifference to her medical needs. The district court denied the deputies' motion for summary judgment on qualified immunity grounds, and the Eleventh Circuit reversed and rendered a judgment in favor of the deputies.

New false arrest case


In Rushing v. Parker, the Court considered a §1983 false arrest claim and affirmed the district court's grant of qualified immunity to the defendants. There, two Polk County sheriff's deputies misidentified and arrested Rushing based upon a citizen's complaint that a roofer had ripped him off. After an investigation, the deputies arrested Rushing although the state later dropped charges when it determined that Rushing had been misidentified. The victim filed a complaint against the plaintiff by name and identified the plaintiff as the perpetrator in a phot line-up, although fingerprint evidence later exonerated the plaintiff. Given these facts, the Court found that the deputy's arrest affidavit, although mistaken, was sufficient to establish probable cause to arrest Rushing.

Court upholds 922(g) against constitutional challenge


In United States v. Rozier, the Court rejected a challenge that 18 U.S.C. §922(g) unconstitutionally infringed on Rozier's Second Amendment right to keep and bear arms. Analyzing Heller, the Court noted that the conduct fell within the longstanding prohibitions of possession of firearms by felons, and as a felon, Rozier fell within a prohibited class. The fact that he may have possessed a firearm in his home for self-defense was irrelevant. The Court also upheld Heller's ACCA sentence, reminding the reader that Almendarez-Torres remained good law.

Appellate courts in popular culture


On behalf of appellate lawyers everywhere, I salute Domino's Pizza for filming its latest (and widely-played) ad in front of the courthouse of the United States Court of Appeals for the Fifth Circuit. Why? A dispute with Papa John's, apparently involving "puffery," must have led it there. Double pepperoni all around!

Who owns logs at the bottom of the river?


Continuing its discussion of off-the-beaten-track issues, the Eleventh Circuit found that Georgia could not claim Eleventh Amendment immunity in a suit brought over old growth logs lying at the bottom of the Flint and Alapaha Rivers since Georgia lacked actual possession of the res (i.e., the logs). Check out Aqua Log, Inc. v. State of Georgia for an interesting discussion of deadhead logs, ownership of submerged cultural resources, the Eleventh Amendment, and admirality proceedings.

Wind load standards for tower cranes and hoists


Yes, you read the title of this post correctly. The Court held in Associated Builders and Contractors v. Miami-Dade County, Florida, that the Occupational Safety and Health Act, 29 U.S.C. §651-§678, preempted a section of a local ordinance mandating wind loads for tower cranes and hoists. In doing so, the Court rejected various arguments from Miami-Dade about the focus of its ordinance, whether the federal act set a "federal standard," and whether the federal act constitutes an unconstitutional delegation of legislative power.

2254 opinion


Since 2254 is such a specialized area, I will recite the Court's holding in Thompson v. Secretary, Department of Corrections, and let you, dear reader, figure out if it's pertinent to your practice: "we conclude that the district court incorrectly dismissed Thompson's federal habeas petition as untimely based on its erroneous determination that Thompson's September 2004 and December 2005 state habeas corpus petitions were not 'properly filed' within the meaning of §2244(d)(2). As the latter petitions met all the state procedural and filing requirements on their face, Thompson was entitled to statutory tolling of the one-year limitations period under §2244(d)(2) during the pendency of those petitions."

2241s and restitution


Can a prisoner use 28 U.S.C. §2241 to challenge only the restitution portion of his sentence? The answer is "no," according to Arnaiz v. Warden. The Court rejected a savings clause analysis of §2241 in light of its recent decision in Mamone v. United States, 559 F.3d 1209 (11th Cir. 2009)(finding that petitioner could not use §2255 to challenge restitution, even if coupled with claim seeking release from custody). As for §2241 itself, a successful challenge to the restitution portion of a sentence would not provide relief from physical confinement -- which is the hook necessary for §2241 jurisdiction. Without a "signficant connection between Arnaiz' factual custody and the legal relief he seeks," §2241 could not provide a procedural vehicle for this claim.

Batson and Miranda issues


The Eleventh Circuit issued United States v. Bernal-Benitez today, one of those soup-to-nuts opinions that covers a variety of issues -- here, sufficiency, Batson, prosecutorial remarks during closing argument, suppression, and the role in the offense enhancement at sentencing. Two discussions are particularly interesting.

As to the Batson claim, the prosecutor said that he struck a black juror because he was less educated than other members of the venire and the government wanted a more educated panel; the defense pointed out that the prosecutor accepted a postal worker, a bus driver, and an airport parts mechanic. The Eleventh Circuit affirmed the judge's overruling of the Batson objection, saying that the judge identified that the challenged venire person's style of communication and demeanor set him apart from other blue-collar workers on the panel. The Court rejected a plain error defense argument that after the trial judge upheld this strike, he should have revisited the Batson objection to the prosecutor's strike of another juror; the Court refused to find that the trial judge had a duty to review sua sponte any prior Batson ruling based upon the same grounds.

Second, the Court affirmed the finding that a co-defendant's statement had been voluntarily given despite the fact that the agents wrote it down in English, which that defendant did not speak. (A Spanish-speaking FBI agent testified that he orally translated the statement for the defendant before the defendant signed it.) The Court acknowledged that "it seems unusual to have a suspect sign a statement written in a language he cannot read," but found that the situation did not involve police overreaching.



Congratulations to Brian Tanner, the new appellate chief for the United States Attorney's Office for the Southern District of Georgia.



Here's a link to United States v. Marquez, an extradition case that the Eleventh Circuit decided today. Marquez held that "a claim that the extradition violates the rules of specialty and dual criminality is a challenge to the court’s personal jurisdiction over the defendant and must be raised in a pretrial motion pursuant to Rule 12." Thus, Marquez waived his challenges in this regard by making them three years after the pretrial motions deadline.

Beware of jurors bearing gifts


Who among us can't remember the first time we read the Wellons case? Chocolate shaped like male genitalia and female breasts presented to the trial judge and bailiff in a murder case? Huh? On Tuesday, the SCOTUS summarily granted cert., vacated, and remanded (GVR) Wellons to the Eleventh Circuit for an evidentiary hearing, relying on its intervening decision in Cone v. Bell. Here's a link to SCOTUSblog's discussion of the case, as well as to the Eleventh Circuit's initial opinion.

Senate votes to confirm Judge Martin


Yesterday, the Senate voted 97-0 to confirm Judge Beverly Martin to a seat on the Eleventh Circuit. Here's a link from

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 . . . .

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.

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.