11th Circuit Court of Appeals

One of the hats I wear is that of the Federal opinions editor for a caselaw update that the Georgia Association of Criminal Defense Lawyers publishes monthly. It has been a slow month for Eleventh Circuit Opinions. But there is one that I will be writing up. And this blog post will pull double duty as a caselaw summary for that publication.

The case is United States v. Sheels, a January 31 published opinion. This case deals with whether it was proper to impose a four-point enhancement under 2G2.1(b)(4) of the Federal Sentencing Guidelines. The question turns on what is sadistic of masochistic conduct.

The Point:

For purposes of determining whether to impose a four-point enhancement for a conviction for sexual exploitation of a minor by production of sexually explicit material, it is proper to impose the enhancement even if the defendant is the recipient of sadistic or masochistic conduct was directed at him rather than from him.

The Facts:

Mr. Sheels was convicted of one count of producing and one count of receiving child pornography. He received a sentence of 600 months to serve. The sentencing added four points to his base level offense of 32 because the material contained the following as defined by 2G2.1 of the Federal Sentencing Guidelines:

If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

Mr. Sheels argued that the enhancement did not apply because he was the recipient of the argument. The Court affirmed, having determined that the depiction of such conduct, in any form, was sufficient to apply the enhancement.

The Reasoning:

The Court found that it was not necessary to look further than the plain language of the guidelines to answer the question. “Involved material that portrays,” applies to the conduct in any form. The Court then went to a dictionary definition of the word involve.

There were no cases directly on point. And Mr. Sheels relied on some dicta from other cases potentially to support his position:

He cites a number of cases, like United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002) (quotation marks omitted), which contain statements like: “[A] photograph is sadistic within the meaning of Section 2G2.2(b)(3)3 when it depicts the subjection of a young child to a sexual act that would have to be painful.” But those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of a § 2G2.1(b)(4) enhancement, not that it is necessary.

Ultimately, the Court held that even the object of sadistic or masochistic conduct is subject to the enhancement. To the extent that this point was unresolved by the language of the guidelines, it is resolved now.


beverly-martin-2009-7-29-11-10-39.jpgJudge Beverly Martin of the 11th Circuit Court of Appeals spoke to the Georgia Bar’s Appellate Practice Section yesterday on the subject of “What Makes an Effective Appellate Advocate.” More specifically, her focus was on effective oral argument. I’ve heard many talks on this topic, and I read about it all the time. I even write about it from time to time. Judge Martin’s approach to the talk was different from the typical talk on effective advocacy at oral argument, which often takes a very nuts and bolts (do this, don’t do that) approach with little attention given to what the result should be. Instead, she spent her time describing, virtually inviting the audience to imagine, the perfect oral argument. She left us with the task of working hard to find our way to that destination. In this post, I want to summarize what, in her eyes, the perfect oral argument looks like.

The Advocate is Fearless

A fearless advocate is one who knows the facts and the law cold and has thought about the possible implications of each. The advocate is fearless as a result of focused concentration on the case in the weeks leading up to the argument. The fearless advocate also is prepared to engage in a calm conversation with the Court about the case. Judge Martin spoke of a level of preparation so great that there is little that can’t be answered or discussed. 

The fearless advocate is calm because that advocate is “ready to discuss any and every fact in a way that weaves into the lawyer’s theory of the case.”

Preparing to have a conversation and preparing to give a canned rehearsed speech are two different things. In addition, this picture of a perfect argument also presumes that the bench is equally prepared to have a conversation.

She cited a judge who told her, in her earliest days on the bench, that being an appellate judge feels like advocacy again. She explained that judges often come to oral argument having taken a position on the case, and that other judges often have different positions. The questions they ask the lawyers before them are often “adversarial” in nature and work as a tool to argue positions to the other judges on the panel. Which leads to the next part of the portrait of the perfect oral argument.


The Advocate is a Masterful Manager of Concessions

Then came the other part of the portrait of the perfect oral argument, which is more of an internal piece. It is important to concede the things that should be conceded to avoid embarrassment at having assumed a ridiculous position. But the need to make concessions must also be balanced with the knowledge that oral argument is “not a popularity contest.” Which means that it is equally important not to concede things that should never be conceded. Judge Martin explained that her colleagues are masters at getting lawyers to concede points at argument that will undermine the lawyer’s case and the other colleague’s position. 

How do you know where this balance is between things that must be conceded and should never be conceded? It requires mastery of the facts of the case and the law governing the issues. Sometimes, even sufficiency of evidence arguments can be abandoned to the client’s peril.


The Rest of her Talk

Judge Martin’s discussion of the management of concessions then moved to the difficulty that comes in some cases, which is that “the rule of law does not bend to exclude distasteful people.” Which may be a clue in the handling of cases where there is a good legal issue but distasteful facts. Sometimes, perhaps, we undermine our argument in trying to sanitize things about cases that should not impact the outcome if we assume a set of participants in the legal system that are applying the rule of law dispassionately.

Judge Martin characterized the flow of work at the eleventh circuit as “shocking” in its volume for ten judges to undertake. She also explained that the court handles it very well because “if you don’t move it, you’ll be buried.”

It was a good talk on an area of growth for me. I’ve often said that I think oral argument is the hardest thing about being a lawyer but also potentially the most rewarding. I never feel more like “a real lawyer” than after an appellate oral argument that went well, and I never feel more like I should start some other kind of business than after a really bad one. Judge Martin’s portrait of a great oral argument has given me something to aspire to and to envision in the future.

Caroline Vodzak  reports at Vodzaklegal that the Third Circuit has found that mere spatial proximity of guns to drugs is not sufficient to enhance a defendant’s sentence of drug possession without a specific finding of fact that the gun “facilitated or had the potential for facilitating the possession of drugs.” 

Mr. West was caught in possession of a small amount of marijuana and cash during a routine traffic stop. Police then found a handgun in the car’s glvoe compartment and another in Mr. West’s trunk. They later found a gun on his girlfriend’s dresser near a bed where Mr. West sleeps. The trial court (MD of Pennsylvania) interpreted the sentencing guidelines in reliance on another third circuit case broadly to give Mr. West a four-level sentencing enhancement, reasoning that the guns needed only to be possessed “in connnection with” the possession of drugs. 

The Third Circuit reversed, reasoning that “the mere connection with the drugs” was not enough, and remanded for sentencing, with instructions about the correct standard for application of the enhancement.

The interesting thing about this case is that the Thrid Circuit relied upon the Fourth, Fifth, and Eighth Circuits, which distinguish between drug possession and drug trafficking cases. It is not clear, from reading the opinion, whether other circuits make such a distinction and whether, on this issue, there is or might be a circuit split ahead. 

jury summons.jpgProfessor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength of the government’s case, issues of fact should be decided by a jury and not by an appellate or trial court. Professor Podgor found particularly significant the Court’s reasoning that:

A trial court is not free to determine the existence of the defendant’s theory of defense as a matter of law; it is established by the defendant’s presentation of an evidentiary and legal foundation and, once established, the defendant is entitled to jury instructions on that defense theory.

Carl Lietz and Paul Kish also provide some helpful commentary on this case in their excellent Federal Criminal Lawyer Blog. From a practice perspective, they point out the importance of requesting a reliance upon professional advice charge in white collar cases where it is factually applicable.


A More General Takeaway from the Decision

Jury charges should be an important of a lawyer’s approach to a criminal trial. The charge conference is probably the single best place to plant appellate issues in your record because charging errors are seldom harmless.


The Georgia Court of Appeals Should Adopt a Similar Harm Analysis

The Georgia Court of Appeals appears to be of two different minds about how to analyze harm in jury charge issues. In a recent case, they reasoned that a failure to charge on a lesser included instruction authorized by a defendant’s testimony was harmless. Yet, in a slightly less recent theft case, the Court held that harm was practically presumed from a charging error even where the defense was “incredible.”

The case demonstrates how important jury charges should be to preserving the record for appeal and how the jury’s power to function as factfinder is at stake when it comes to analyzing harm from charging errors.

slippery slope.jpgThere is a moment in most great horror movies where the evil presence/bad guy/ghost/homicidal maniac takes out a character who has it coming. For a moment, the audience applauds the wicked antagonist. Think of Jason from Friday the 13th taking out a weaselly teen or the scene in Jurassic Park where the velociraptors eat Dennis Nedry (a/k/a Newman from Seinfeld). Eventually, though, the antagonist continues to do damage to good characters, bad characters, and everyone in between.

If the Federal criminal justice system is the horror movie, then the Federal Sentencing guidelines are the antagonist. Last week, Jason from Friday the 13th re-emerged from the lake. It just so happens that he took out William Irey, a guy who had it coming. But the Guidelines are back with a vengeance to haunt us in a way they haven’t since the Booker decision, and they’ve already started slashing away at the discretion of Federal District Court judges. If Mr. Irey applies for certiorari, then it may be time to start thinking movie antagonist on the level of the big red eye from The Lord of the Rings.


The Bad Guy Who Got What was Coming

Meet William Irey. Mr. Irey was a successful businessman who took multiple trips to Asia where he filmed himself exploiting children. He came back to the States and distributed the images over the internet. I am not going to say more. In fact, I have not found a blog or article on this case that recites the particulars. For that, you have to read the opinion (PDF). In summary, I don’t think I’ve read about worse facts in a child sexual crime case.

Mr. Irey plead to a single count of child sexual exploitation under 18 U.S.C. Section 2251, an offense that carries a range of punishment from fifteen to thirty years to serve. The Federal Sentencing Guidelines called for a sentence of life in prison or the maximum sentence.

The sentencing judge deviated substantially from the guidelines recommendation and sentenced Mr. Irey to serve 17.5 years, just two and a half years over the minimum and a 12.5 year downward variance from the guidelines sentence.

To make things worse, the sentencing judge said some rather unfortunate things. The worst was the court’s decision to refer to Mr. Irey as a victim.

As Scott Greenfield put it in his post on the Irey case, the judges could not live with the prospect of Mr. Irey ever walking out of prison. David Oscar Marcus, at the Southern District of Florida Blogreaches similar conclusions.

The problem is how they got there and the fact that the 11th Circuit has revived the Federal Sentencing Guidelines in a big way.

Continue Reading U.S. v. Irey: The Return of the Federal Sentencing Guidelines in the 11th Circuit

politician.JPGBill Rankin at the AJC reports that the 11th Circuit Court of Appeals has reversed a Federal District Court’s dismissal against former Clayton County District Attorney for an alleged violation of his First Amendment right to Free Speech. This is the latest chapter in what was a debacle of a tenure for. Mrs. Scott as the District Attorney in Clayton County, Georgia. Mrs. Scott and husband Lee Scott were both elected to DA and Chair of the Board of Commissioners respectively. Both lost overwhelmingly in 2008. Their tenure in Clayton County accompanied a wholesale change in leadership in that county, including the election of Victor Hill as Sheriff, who promptly fired many sheriff’s department employees. As those employees left the building, Mr. Hill posted snipers on the roof of the law enforcement complex. When she began serving as DA, she had never tried a case to a jury. Mr. Hill’s time in office led to Federal suits as well.

In this particular instance, Ms. Scott’s chief investigator Earl Randall announced that he wanted to run against Ms. Scott’s husband, Lee Scott, for Chair of the Board of Commissioners. Mr. Scott reportedly pounded his fists on a table when he heard the news and demanded that his wife fire Mr. Randall and vowed to “destroy” him. Yes, sometimes the truth is stranger than third-rate melodrama. I’m sure that, when the lawsuit goes forward, we will find out that he exclaimed, “bwahahaha” shortly afterward.

Mr. Randall was fired, and he filed suit againt Ms. Scott individually, in her official capacity as DA, and against the current DA in her official capacity. 

The District Court dismissed the suit, reasoning that there is not First Amendment right to campaign for election, that Ms. Scott was protected by qualified immunity, and that the Complaint did not satisfy pleading requirements. Then the case went to the 11th Circuit, and the plot thickened.


Continue Reading 11th Circuit: Lawsuit Against Clayton County, GA DA Can Move Forward