This week’s newsletter is on its way tonight or tomorrow. In the meantime, it has been quite a while since I published any more in-depth case analysis. So I wanted to share an article my co-authors, Colin Callahan and Marco Attisano, and I published in this month’s issue of the NACDL’s Champion Magazine. An image of the first page is below, and a copy of the for article article is available for download if you click the link.

Defending Hippocrates Nacdl Champion 2022 For Website

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This article is posted with the NACDL’s permission and the copyright for the article belongs to them.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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Imagine it’s trash day. You look out your window and see your trash cans (along with those of all your neighbors) lined up on the side of the road ready for collection. Then, a police cruiser pulls up outside your house. Two uniformed officers tip your trash can over, rifle through a few of the bags, then throw them in the cruiser’s trunk and drive off.

The officers had neither a warrant nor any particular reason to go through your trash. But unbeknownst to you your teenage son tossed a half-spent joint in the trash before coming in the house last night. And before long he’s in jail and you’re left wondering: Is this constitutional?

In 1988, the Supreme Court said yes in a case called California v. Greenwood. The justices reasoned that, because citizens put their garbage out for a third party (trash collectors) to snag and trash at the roadside is “readily accessible to animals, children, scavengers, snoops, and other members of the public,” you have no reasonable expectation of privacy in garbage you stick out by the street. Thus, the Fourth Amendment doesn’t protect it and police can do with it as they will.

Last week, though, a bare majority of the Iowa Supreme Court came to a very different conclusion.

Laws Are For Thee, Not for We

Even though a city ordinance criminalized going through someone else’s garbage, a police officer in Clear Lake, Iowa, went through Nicolas Wright’s garbage three times in the dead of night. He had no probable cause and was armed, not with a warrant, but with a desire to “obtain information about what Mr. Wright may have been doing inside [his] house.”

The officer, you see, had heard that a man nicknamed “Beef” was selling drugs and lived near a local bar. And Mr. Wright sometimes went by the name “Beef.”

Mr. Wright’s garbage bags were opaque—the officer couldn’t see what was in them (i.e., no “plain view” exception here). So he took them back to the police department where he found some fabric squares with brown stains on them and a few seeds. The seeds, it turned out, were poppy seeds. And the fabric squares tested positive for morphine and cocaine.

After pulling Mr. Wright’s trash three times, with similar results each time, the officer finally asked for a search warrant based on what he found. A search of the house turned up two grams of marijuana and a few capsules of a prescription drug for which Wright had no prescription.

Mr. Wright moved to suppress all the evidence against him, arguing that the trash seizures violated both the Fourth Amendment and a similar section of the Iowa Constitution: Article 7, Section 1. The trial court denied the motion, and Mr. Wright plead guilty on the condition that he be allowed to appeal.

The Lamp of History (and Justices Thomas and Gorsuch)

Four out of seven Iowa justices voted to reverse, but they did not agree completely on the reason why.

Justice McDonald’s opinion focused extensively on the history of Iowa’s state constitution and search and seizure law more generally. After establishing Iowa’s freedom, in interpreting the state constitution, to depart from the Supreme Court’s view of the federal constitution, Justice McDonald headed back in time to the 1700s.

“Unreasonable” in the search and seizure context, he (and the two justices who join him in full) reasoned, means not “reasonableness in a relativistic, balancing sense,” but rather that a search is unreasonable if it is “against the reason of the common law.” Thus, for example, an officer violates the Fourth Amendment when he trespasses on private property without a warrant.

This was the understanding of the Article 7, Section 1, until the Supreme Court held that the Fourth Amendment applied to the states. Then, Justice McDonald argued, Iowa courts began to follow the U.S. Supreme Court’s “reasonable expectation of privacy” reasoning, as explained in Katz v. United States. This, relativistic, view of “reasonableness” was a departure from original understandings.

But in recent years, the plurality continued, Iowa courts have begun to move back in the direction of original understandings. For example, in 2017, one of the Iowa Supreme Court’s decisions focused on the Founding-era concern with prohibiting general warrants. And in 2014, it expressed its concern that the “reasonable expectations” test is too subject to shifting views of members of the Court.

And the U.S. Supreme Court, Justice McDonald pointed out, has done the same in the Fourth Amendment context. For example, in United States v. Jones, Justice Scalia’s majority opinion focused on the physical trespass involved in placing a GPS device on a car. The plurality went so far as to say that this recent shift at the high court was driven by a recognition that “[c]urrent Fourth Amendment jurisprudence is a mess,” citing a number of scholars ranging from Akhil Reed Amar at Yale to Will Baude at the University of Chicago.

Then, in what may be the most interesting part of the opinion—and certainly the part that makes it most interesting outside of Iowa—the plurality apologetically said: “We would normally be reluctant to voice any such criticism of the Supreme Court’s jurisprudence, but members of the Court also are critical of its jurisprudence.” Justice McDonald then included lengthy quotes from Justices Thomas and Gorsuch criticizing the Katz test. Indeed, Justice Thomas and Gorsuch (often in dissent) are cited repeatedly throughout Justice McDonald’s opinion.

As far as this case is concerned, Justice McDonald said it was obvious (based on original meanings) that the officer seized and searched Mr. Wright’s trash. After all, he took and rummaged through it “for the purpose of finding something”—namely, evidence of a crime. There was no need to consider whether there was a reasonable expectation of privacy at this point, the plurality said, because that test applies only to the question of whether a search or seizure was reasonable.

The majority (a fourth justice joins here) then rejected the State’s argument that Mr. Wright abandoned any interest in garbage in his trash cans. The Court said that Mr. Wright did not abandon “all right, title, and interest” in the trash; by moving the cans to the street, he agreed only to give the property to a licensed garbage collector. Quoting a Virginia Law Review Article, the majority said:

[I]ndividuals who leave garbage on the curb generally do not expect that anyone will be able to take the discarded items but rather, per Greenwood, understand themselves as conveying refuse to a specific party who will function as the next true owner: the trash collector. This understanding seems especially clear in localities with anti-rummaging ordinances, under which all but designated trash collectors are prohibited from tampering with curbside garbage, such that unauthorized “finders” would presumably violate the ordinance by taking possession of garbage. If individuals placing garbage out for collection do not intend to leave the items for random “finders,” placing garbage curbside arguably lacks the requisite “intent to abandon” necessary to qualify as property abandonment.

Only after the bags were collected and commingled with other garbage collected from other houses could Mr. Wright be said to have abandoned title.

By infringing on Mr. Wright’s property interest without a warrant, then, the officer in this case committed a trespass. City ordinances precluded anyone besides garbage collectors to sift through others’ trash. Police are not above that law, and so, without a warrant, the sifting was illegal.

But the majority is careful to say that a search’s constitutionality does not rise or fall “based on a particular municipal law.” So it is unclear whether the same result would follow if Clear Lake ordinances had allowed officers to seize garbage.

If We Must

Begrudgingly, the majority also considers whether the search is unconstitutional under the Katz test (though it did not need to, given that it had already found the search invalid). Here, the majority engages directly with U.S. Supreme Court precedent, calling the holding in Greenwood “unbelievable,” and again quoting Justice Gorsuch at length:

In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment.

“We believe Justice Gorsuch has the better of the argument here,” the majority said, because “[g]arbage contains intimate and private details of life.” And in this case, Mr. Wright had a reasonable expectation that, if his privacy were going to be lost, it would only be lost in “in a certain, limited way.” The Iowa Supreme Court thus joined state courts in New Hampshire, New Jersey, New Mexico, Vermont, and Washington in rejecting Greenwood’s reasoning and interpreting their state constitutions to provide broader protections than the Fourth Amendment.

Yes to Your Holding, No to Originalism

Justice Appel joined a lot of Justice McDonald’s opinion, but denied him a majority on the parts that focused most heavily on constitutional history. “Although I have a healthy respect for constitutional history and have explored it in some depth in the search and seizure context,” he wrote, “I am not what is generally loosely referred to as an originalist:

The law is never static. It always evolves. And the founders certainly believed that to be the case. And, in the context of search and seizure, Justice Brandeis got it right in his ultimately adopted dissent in Olmstead v. United States, when he urged the Court to view constitutional law as more than simple historical application of common law traditions in light of modern innovations like the telephone. It makes no sense to try to figure out what the founders would have thought about eavesdropping, a heat-measuring device that penetrates the home, or a GPS device slapped onto a vehicle. Instead, our task is to identify the larger constitutional principles at stake, trace their evolution through decades of experience, and apply them in the present context based on contemporary realities.

…

History is not granular, and it rarely points only in one direction. Even if historical truths can be discovered by judges writing opinions in a matter of weeks (and, alas, sometimes days), the historical truths are very difficult even for trained historians to discover and are often inconsistent and contradictory. And, historical cherry-picking can be a tool to hide preferences and biases behind a veneer of objectivity. At most, and when best used, history informs and shapes the inquiry but does not demand results in cases presenting fact situations or modern technology that the founders could not possibly have anticipated.

Justice Appel then expressed his concern about the U.S. Supreme Court’s departure from “the warrant-preference approach that appeared for decades in the United States Supreme Court.” The need to cabin arbitrary and intrusive searches drove the Founders to adopt the Fourth Amendment, he reminds us. And the ability to “conduct searches in seizures at any time of day or night” contributed to the ability of the German government to hunt for Jewish refugees during the 1930s and 40s—a fact that Justice Appel says had a particular impact on Justice Robert Jackson, who also served as the chief prosecutor at the Nuremburg trials. Warrants and the warrant requirement prevent these sort of abuses.

Plus, the focus of law schools, law students, and lawyers on federal law and precedent obscures the role state law and courts can play in protecting rights, Justice Appel argued. And it also would have concerned the Founders, because “the very purpose of the federal system was to preserve the autonomy of the states,” not to create a system in which “state supreme courts should generally follow precedent of the United States Supreme Court.” State courts “have a constitutional responsibility to think for” themselves:

State courts are, of course, overburdened, and the resources available to the average state court judge, in Iowa and in many states, pales in comparison to the federal judiciary. The parties’ briefings on state constitutional issues are often less than thorough. It is easy to simply grab a flying federal case asteroid, drop the smoldering object into our opinion book, close it quickly to cut off any legal oxygen that might cause a flare-up, and go home for supper. But the Iowa courts are an independent state judiciary operating under an independent state constitution.

Justice Appel then gave his reason for departing from federal precedent in this case: “Until very recently, the Supreme Court has tended to embrace rights-restricting radical pragmatism, where the perceived needs of law enforcement are consistently permitted to overwhelm the libertarian principles behind search and seizure law.” And he provides any number of examples. Iowa, Justice Appel argued, should not follow that trend and the police violated Mr. Wright’s rights here.

Conclusion

The holding here drew three separate and lengthy dissents from the other three justices on the Iowa Supreme Court, which are worth reading in their own right. But an email newsletter can only be so long. And it is the opinions on the majority side that have the most implications for a newsletter that focuses mostly on federal appeals (with apologies to Justice Appel for that).

Given the newly-minted 6-3 majority on the U.S. Supreme Court, it is interesting that the Iowa Supreme Court cites so heavily to opinions from Justices Thomas and Gorsuch. In Greenwood, Justices Brennan and Marshall dissented, and it seems likely the three liberal members of today’s Court would have, too. Does this mean Greenwood is an endangered precedent? Or did the Iowa justices misread their federal counterparts’ writings?

An Iowa Supreme Court decision can’t answer those questions, of course. But Iowans, at least, can now rest assured that their secrets are safe while sitting by the curb. And defense advocates have strong ammunition in the fight to convince other state courts to follow the Iowa Supreme Court’s lead.

The case is State of Iowa v. Wright, No. 19-0180.

The majority included Justices McDonald (lead author), Oxley, McDermott, and Appel (only in part).

Justice Appel filed a concurring opinion.

Chief Justice Christensen filed a dissent, which Justices Waterman and Mansfield joined.

Justice Waterman filed a separate dissent, which Chief Justice Christensen and Mansfield joined.

Justice Mansfield filed a separate dissent, which Chief Justice Christensen and Waterman joined.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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In recent years, the Supreme Court (often unanimously) has issued a series of decisions in high-profile cases trimming the scope of federal criminal laws related to public corruption. Most recently, the Court overturned the convictions of two aides to then-New Jersey governor Chris Christie. Federal prosecutors had pursued charges against those aides for their efforts to alter traffic patterns on a bridge into Manhattan to punish one of the governor’s political opponents.

But as the justices have narrowed the scope of two primary federal anticorruption laws—the honest services fraud (18 U.S.C. §§ 1343, 1346) and federal bribery (18 U.S.C. § 201)—prosecutors have begun turning to a different statute: the federal funds bribery law (18 U.S.C. § 666). And last week the Eleventh Circuit issued the latest of several appellate decisions accepting the government’s broad view of that statute.

Don’t Clean Up My Back Yard

This case began with the EPA’s efforts to expand an Alabama Superfund site in Birmingham and add it to the National Priorities List. Adding the sit to the list would allow access to federal funds, but required the EPA to reach an agreement with the Alabama Department of Environmental Management (“ADEM”) under which the state would pay ten percent of the cleanup costs.

Several companies the EPA had named as parties potentially responsible for the pollution at the site—and particularly the Drummond Company—had strong financial motivations to block this efforts. Drummond thus set out to hamper the EPA’s efforts. Its counter-campaign was led by Joel Gilbert, a partner at the law firm Balch & Bingham LLP, and Drummond’s VP of Governmental Affairs, David Roberson.

In February 2015, Gilbert signed a “consulting agreement” between Balch and then-State Representative Oliver Robinson’s charitable foundation in exchange for help running a “community outreach program” opposing the EPA. In exchange for Representative Robinson’s help, Roberson would wire money to the foundation either from Drummond or a shell corporation that collected “hefty annual membership fees” from other industrial companies in the area with an interest in dodging environmental liability.

The “help” Drummond wanted, however, had less to do with public advocacy and more to do with Representative Robinson’s ability to use his official position as a State Representative from the Birmingham area to block the EPA’s cleanup plans. First, Representative Robinson met with the EPA to hawk talking points prepared by Gilbert and Balch opposing the plan, which prompted Roberson to approve $7,000 per month payments to Robinson’s foundation. Then, Representative Robinson spoke against the plan at a public AEMC meeting, after being prepped by Gilbert and Roberson, arguing that finding additional companies (like Drummond) liable for the cleanup would harm the community and that he did not think the science supported the EPA’s plan.

After this second meeting, Representative Robinson sent AEMC a letter requesting information about its Director’s communications with the EPA. Though it was on Alabama legislature letterhead, this letter had been drafted by Gilbert. Robinson later provided the documents he received to Balch and Drummond.

Finally, Representative Robinson helped vote a resolution out of committee stating “that the EPA was operating on the basis of faulty science and was working against ADEM, urg[ing] the EPA to reconsider its actions, and ask[ing] that ADEM and the Alabama Attorney General ‘combat the EPA’s overreach.’” This resolution had, again, been drafted by Gilbert—and it eventually passed both houses of the legislature and was signed by the governor.

Roberson and Gilbert were each charged with, among other things, federal programs bribery under Section 666. At trial, Representative Robinson (who had earlier pleaded guilty to charges against him) testified against them. After Roberson and Gilbert were convicted based on that testimony and other evidence, they appealed, arguing that they had not committed a crime under the Supreme Court’s recent public corruption decisions.

No Official Act, No Problem

In its 2016 McDonnell decision, the Supreme Court overturned a former Virginia governor’s convictions for honest-services fraud based on the government’s failure to prove the governor had accepted bribes in exchange for an “official act.” In doing so, the Court narrowly defined “official act” to include only a “question, matter, cause, suit, proceeding or controversy involving a formal exercise of governmental power.” Simply arranging or attending meetings between lobbyists and government officials was not enough.

Roberson and Gilbert argued that the government similarly failed to prove that Representative Robinson took “official acts” in exchange for their payments in this case. But the panel unanimously rejected this argument.

The problem, the Eleventh Circuit explained, was that—unlike the federal bribery statute (which the McDonnell parties conceded also applied to honest-services fraud prosecutions)—Section 666 does not require proof of an official act to commit federal programs bribery. The phrase does not appear in the text of the statute, which says:

Whoever … corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of … a State, local, or Indian tribal government [which receives more than $10,000 a year from a Federal program], in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more shall be fined under this title, imprisoned not more than 10 years, or both.

The Eleventh Circuit had earlier rejected attempts to graft an official acts requirement onto Section 666. And the only two published opinions from other Circuits—one from the Second Circuit and one from the Sixth Circuit—had likewise refused to do so.

In short, the limitations on “official acts” outlined in McDonnell and Sun-Diamond, an earlier Supreme Court decision related to gifts to a former cabinet official, simply did not apply to Section 666.

Retaining the “Retainer Theory”

Next, Roberson and Gilbert argued that the government’s use of a “retainer theory” of bribery was improper. The panel also rejected that argument.

The “retainer theory” was developed by the Second Circuit and best explained by then-Judge Sotomayor in United States v. Ganim: Under this theory, the quid pro quo in a bribery case could “be satisfied by showing that a public official received a benefit in exchange for his promise to perform official acts or to perform such acts as the opportunities arose.”

In 1991, the Supreme Court held in McCormick v. United States that prosecutors must prove an explicit quid pro quo to obtain bribery convictions based on political contributions or other campaign spending. This, combined with McDonnell’s narrow definition of official acts, undermines the retainer theory because an amorphous promise to perform some acts in the future is not concrete enough to support a bribery theory. (That said, the Second Circuit has said that it survives where the promise is to perform a specific kind of official act in the future.)

But the Eleventh Circuit explained that Roberson and Giblert’s case is distinguishable because it does not involve donations or campaign contributions that would be laden with free speech interests. Moreover, the express quid pro quo requirement does not necessarily apply to Section 666 prosecutions. Thus, the panel held, the retainer theory remains a valid one, at least in non-contribution federal funds prosecutions.

Other Arguments

The panel also quickly rejected a series of additional arguments:

• Joining the First and Third Circuits, it held that Representative Robinson was an agent of the state government as a whole, not merely the legislature. So bribing him could support a federal funds conviction.

• It explained that there was no requirement that Representative Robinson have actually influenced the decisions of the ADEM or EPA.

• It rejected the argument that the district court should have instructed the jury that merely expressing support for a position or action is not an “official act” in connection with honest services fraud charges.

• And finally, it rejected Roberson’s argument that, by refusing to sever the trial with Gilbert, the district court effectively deprived him of the ability to present an advice-of-counsel defense.

Conclusion

In short, the Eleventh Circuit’s decision in this case reflects the growing consensus among the Circuits that Section 666 provides broad authority for the federal government to pursue bribery prosecutions against state officials (especially given the ubiquity of federal funding programs). But the Supreme Court has upended similar trends in the past, especially in this area of federal criminal law. It remains to be seen whether the justices will step in again—either in this case or another one.

The case is United States v. Roberson, No. 18-14654

The panel included Judges Wilson, Branch, and Restani (author).

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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To what extent should jurors be able to bring their faith into the jury room? Would a strict prohibition discriminate against people of faith? What role should scholarship and behavioral research play in answering these questions?

These debates divided the Eleventh Circuit, sitting en banc, in a decision issued last week. The majority held that a district court erred by excluding a juror who said, near the beginning of deliberations, “that the Holy Spirit told him that the defendant … was not guilty on all charges.”

Not Your Standard Jury Exclusion

Questions of faith and juries have come up before, of course. But they come up most often in the death penalty context, when a juror’s faith or beliefs prevent her from voting for or against a death sentence. Or where a juror’s faith prevents him from sitting in judgment of others. This case was different.

Corrine Brown, a former Congresswoman, was indicted in 2016 on federal fraud, ethics, and tax charges. They were based on allegations that she conspired with others to defraud donors to a charitable association purporting to provide scholarships to poor students and that she used her position in the U.S. House to further that scheme.

The case went to trial in 2017. A magistrate judge supervised three days of voir dire to select a jury which ultimately included Jurors Number 8 and 13. Juror No. 13 did not raise his hand when the magistrate judge asked if any jurors had “any political, religious, or moral beliefs that would preclude [them] from serving as a fair, impartial juror.”

After an eight-day trial, the jury began deliberations. And for the first two days things seemed to proceeding normally. On the evening of the second day, however, Juror No. 8 called the courtroom deputy and said she was concerned because another juror was talking about a “higher power,” and that she thought other jurors were also concerned.

The next day, Juror No. 8 was called into the courtroom to discuss her phone call. She revealed that Juror No. 13 had said, near the beginning of deliberations, that “[a] Higher Being told me Corrine Brown was Not Guilty on all charges.” And a few hours later, the same juror said that “he trusted the Holy Ghost.” Juror No. 8 said the other jurors had asked Juror No. 13 to base his verdict on the evidence and testimony and laws. She further said that he had not mentioned a higher power again after that, but that she was concerned it would interfere with his ability to deliberate according to the district court’s instructions. Other jurors had also expressed concerns about the comments during deliberations.

The judge then questioned Juror No. 13. The juror said that he was not having any difficulties with his religious or moral beliefs that would interfere with his ability to decide the case on the facts, and that he had “been following and listening to what has been presented and making a determination from that, as to what [he thought] and believe[d].” But he also admitted that he had said a higher being was guiding him in making his decisions:

THE COURT: Okay. Can you tell me, as best you can, what you said.

JUROR [No. 13]: Absolutely. I told them that in all of this, in listening to all the information, taking it down, I listen for the truth, and I know the truth when the truth is spoken. So I expressed that to them, and how I came to that conclusion.

…

THE COURT: Okay. And in doing so, have you invoked a higher power or a higher being? I mean, have you used those terms to them in expressing yourself?

JUROR [No. 13]: Absolutely. I told—I told them that—that I prayed about this, I have looked at the information, and that I received information as to what I was told to do in relation to what I heard here today—or this past two weeks.

…

THE COURT: Sure. When you say you received information, from what source? I mean, are you saying you received information from—

JUROR [No. 13]: My Father in Heaven.

THE COURT: Okay. Is it a fair statement—I don’t want to put words in your mouth. But are you saying that you have prayed about this and that you have received guidance from the Father in Heaven about how you should proceed?

JUROR [No. 13]: Since we’ve been here, sir.

The district court pressed the juror on whether there was any inconsistency between his religious beliefs and his duty as a juror:

THE COURT: Do you feel that there’s any religious tension, or is your religion and your obvious sincere religious beliefs—do you believe it at all to be interfering with or impeding your ability to base your decision solely on the evidence in the case and following the law that I’ve explained to you?

JUROR [No. 13]: No, sir. I followed all the things that you presented. My religious beliefs are going by the testimonies of people given here, which I believe that’s what we’re supposed to do, and then render a decision on those testimonies, and the evidence presented in the room.

…

THE COURT: So what I want to ask you is a fairly direct question, and that is this: Did you ever say to your fellow jurors or to a fellow juror during your—during the time that y’all worked together, when the 12 started, something to this effect, [“]A higher being told me that Corrine Brown was not guilty on all charges[”]? Did you say something like that? Did you say that or something like that to any of your fellow jurors?

JUROR [No. 13]: When we were giving why we were—insight, as far as not guilty or whatever for the first charge, yes.

THE COURT: Did you say the words, [“]A higher being told me that Corrine Brown was not guilty on all charges[”]?

JUROR [No. 13]: No. I said the Holy Spirit told me that.

THE COURT: Okay. And you—and I don’t want to get into your deliberations. But at what point in the deliberations was that? Was it at the beginning? Was it early in the deliberations? When was it?

JUROR [No. 13]: I mentioned it in the very beginning when we were on the first charge.

The district court excused the juror and substituted an alternate. In explaining his rationale, the judge acknowledged that Juror No. 13 had said he was trying to follow the law and felt he was applying the jury instructions correctly. Indeed, the district court found that the juror was “very earnest” and “very sincere” in believing that he was trying to follow the instructions and render proper service.

But, the district court reasoned, by saying that a higher being or the Holy Spirit directed or told him that Brown was not guilty, Juror No. 13 was injecting religious beliefs into the deliberations that were inconsistent with the jury instructions. “By definition,” the judge said, the juror was not someone merely “praying for guidance” or “to be enlightened.” Thus, his statement was “a disqualifying statement.” The judge also noted that the juror was hesitant, at first, to explain how his religious views came up.

After Juror No. 13 was removed, the jury restarted its deliberations found Brown guilty on 18 out of 22 counts.

Brown appealed and a panel of the Eleventh Circuit affirmed her convictions. The full court granted her petition for en banc review and reversed.

The Language of Ordinary Citizens

The majority opinion, written by Judge Pryor, begins its analysis by emphasizing the historic importance of the jury-trial right. Juries “preserve[ ] the democratic element of the law” and “protect[ defendants] from being judged by a special class of trained professionals”—i.e., lawyers and judges—“who do not speak the language of ordinary people and may not understand or appreciate the way that ordinary people live their lives.” And because “[j]urors are ordinary people,” courts should “expect[ them] to speak, debate, argue, and make decisions the way ordinary people do in their daily lives.”

For this reason, the Eleventh Circuit has adopted a “tough legal standard” to ensure that a juror is not removed “because he is unpersuaded by the Government’s case” or “under the mistaken view that [he] is engaging in impermissible nullification.” A juror can only be excused—at least in the Ninth, Eleventh, and D.C. Circuits—where there is “no substantial possibility” that the juror is basing his decision on the sufficiency of the evidence rather than another, impermissible, consideration or there is “no reasonable doubt” that the juror is deciding on improper grounds. Otherwise, the majority says, “we would risk erosion of a fundamental safeguard against ‘being judged by a special class.’”

Many ordinary people, the majority implies, are often religious: “Prayer is a part of the personal decision-making process of many people.” And “[j]urors may pray for and believe that they have received divine guidance as they determine another person’s innocence or guilt, a profound civic duty, but a daunting task to say the least.” It would be wrong and “at odds with the idea that a jury be ‘drawn from a fair cross section of the community” “[t]o ask that jurors become fundamentally different people when they enter the jury room.”

What, then, of the Juror No. 13’s statement that the Holy Spirit told him that Brown was not guilty? Wasn’t that outside influence?

No, the majority, said. This “vivid and direct religious language” suggests, in context, that Juror No. 13 was “doing nothing more than praying for and receiving divine guidance.” While “even many devout believers would stumble over the words ‘the Holy Spirit told me’” and be “unused to hearing such expressions,” the juror’s “idiom was not proof of misconduct,” because “[p]eople talk about religion in different ways.”

Turning to social science, Judge Pryor cited a survey showing that 74 percent of survey respondents said they try to talk to God and 28 percent said God talked back. Citing Dr. T.M. Luhrmann’s study of evangelical Christianity, When God Talks Back, he notes that descriptions of “recognizing God’s voice” are often a description of “an internal mental event” or “inner mental phenomena” rather than any sort of external influence. (Dr. Luhrmann, a anthropology professor at Stanford, filed an amicus brief in support of the defense.) More to the point, evangelical Christians are more likely than others to speak in this way—raising the risk of discrimination.

Religious beliefs can be a reason to remove a juror, the majority admitted, when they do not permit the juror to complete their service. For example, it was proper to dismiss a juror who practiced Swedenborgianism, believed (despite contrary instructions) that defendants were entrapped, and insisted that discussing “the teachings of Emanuel Swedenborg with the other jurors … would be like discussing the theory of relativity with [her] cocker spaniel dog.” So too for jurors who express religion-based disagreements with substantive laws.

But Juror No. 13 did not fit this bill, according to the majority. He not only disavowed any conflict between his beliefs and proper service, but “drew a specific connection between his self-understood religious duty and his—correctly described—legal duty as a juror”:

My religious beliefs are going by the testimonies of people given here, which I believe that’s what we’re supposed to do, and then render a decision on those testimonies, and the evidence presented in the room.

“It is hard to imagine,” Judge Pryor wrote, “what kind of evidence could more convincingly prove that a religious juror should not be dismissed.” After all, he continued, the original and traditional purpose of a jury oath itself is to add religious sanction to an official duty.

The majority also stressed—multiple times—that Juror No. 13 expressed a clear understanding of proper jury service. (E.g., “[I]n all of this, in listening to all the information, taking it all down, I listen for the truth, and I know the truth when the truth is spoken.”) And he never suggested that he was refusing to follow instructions or lacked faith in the justice system. It is common, the Court said, for jurors to express their initial views of the case when entering the jury room.

In the end, the majority said: “Juror No. 13’s vernacular that the Holy Spirit ‘told’ him Brown was ‘not guilty on all charges’ was no more disqualifying by itself than a secular juror’s statement that his conscience or gut ‘told’ him the same”:

Of course, neither a religious nor secular juror may convict or acquit a defendant using his internal decision-making processes without regard to the evidence. But Juror No. 13 repeatedly explained that he was, in fact, reviewing and deliberating over the evidence.

But What About Less Wholesome Guidance?

The dissenting judges emphatically disagreed. In her dissent, Judge Rosenbaum points out that “the same rule governs dismissal of both the juror who says his religious authority told him the defendant is not guilty on all counts and the one who says his religious authority told him the defendant is guilty on all charges”:

So let’s be clear about what we’re really doing today: we are holding that a district judge is powerless to dismiss a juror who, on a record like this one, says the Holy Spirit told him the defendant is guilty on all charges and he trusts the Holy Spirit—even though the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base his verdict on what he perceives to be a divine revelation. Just think about that.

If even a single juror bases his guilty vote on divine revelation, that would violate the very 6th Amendment jury unanimity rule that the majority purports to protect, she says.

In starker terms, Judge Wilson’s principal dissent points out that the majority’s opinion clears the way for less comforting religious beliefs to enter the courtroom. What if, for example, a juror had said: “Satan told me that Corrine Brown is guilty on all charges.” :

Brown acknowledged that the result would have to be the same as here—the juror would have to remain, even if the district court found, based on its inquiry, that the juror was not capable of deciding the case as instructed.

“That answer,” he continues, “is as telling as it is unsettling.”

That prayer may be an internal mental process is of no moment, according to the main dissent, because the only question here is whether the juror in question is performing his duty as directed. That does not not require “delving into the nature of prayer itself.” Nor is there evidence that this limited inquiry would “have opened the door to preventing religious people from serving as jurors or forcing them to become different people in the jury room.”:

As long as jurors have been called to sit in judgment of their fellow citizens, many have relied on prayer to aid them in that task. Many will continue to do so, and no one here has advocated anything different. It is no attack on people of faith for a district court to ensure that jurors make decisions grounded in the law and the evidence, as our Constitution requires.

While neither dissent grapples at length with the majority’s own limitations on religion’s role in the jury room, Judge Rosenbaum suggests that its approach to reviewing exclusion rulings undermines those purported limitations:

[Even] if a district judge bucks the trend and conducts some investigation, as long as the challenged juror … says that he is basing his verdict on the evidence, the district judge will not be able to dismiss him. When the jury unsurprisingly later returns a guilty verdict, the defendant will have no recourse: [the Rules of Evidence preclude] any inquiry into “any statement [a juror] made or [any] incident that occurred during the jury’s deliberations….” And since the Majority Opinion concludes today that Juror 13’s statement that the Holy Spirit told him that Brown was not guilty … did not result from an “outside influence,” there will be no possibility that a court facing a similar remark by a juror will be able to inquire into whether that juror (or multiple jurors) rendered a verdict because he (or they) thought he (or they) had a divine (or Satanic) revelation and without regard to the evidence.

What Deference is Due?

Judge Wilson’s chief concern, however, was that the majority was not giving enough deference to the district court’s findings. He—as well as Judge Rosenbaum—describes at length why the trial court is better placed than an appellate court to make factual determinations: the trial judge can view the juror, listen to their tone and affect, and in general need not rely on a cold transcript. And he accuses the majority of ignoring precedent requiring it to review for clear error the district court’s factual finding that Juror No. 13 could not base his decision on the evidence.

The majority’s searching analysis of the record, Judge Wilson says, is more akin to de novo review. After all, “the very premise of clear error review is that there are often two permissible—because two ‘plausible’—views of the evidence.” So an appellate court should not overturn a trial court’s finding just because it disagrees with it.

Here, the district court rejected Juror No. 13’s suggestion that he was merely evaluating the sufficiency of the evidence and based that finding on testimony in the record (namely, Juror No. 13’s admission that the Holy Spirit advised him that the defendant was not guilty). While the judge said the juror was “sincere” and “earnest” in his belief that he was following the evidence, Judge Wilson says, a juror can sincerely believe something that is incorrect. Thus, even if there was evidence in the record to support the majority’s view of the facts, that would not justify overturning the lower court.

The majority responds that this is not a case that turns on “credibility determinations,” because the judge found that the juror was “very earnest” and “very sincere.” Nor did the judge base his decision on the idea that the juror was being deceptive. Instead, Judge Pryor wrote, the district court based its ruling on a question of law: whether Juror No. 13’s statements were akin to religious views that do not permit sitting in judgment and thus categorically impermissible. Thus, the majority reasons, clear error review is not appropriate.

Inquisition or Interview?

In his concurrence, Judge Brasher agreed with the majority, but said that the record of the juror’s beliefs in this case should never have been created. The district court should not have inquired of the juror at all, because jury deliberation is “a difficult and, sometimes, emotional process that requires candor and good faith.” “[F]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.”

In Judge Brasher’s view the appropriate response here was to allow the jury to keep deliberating, perhaps with an instruction on how to weigh evidence and deliberate with other jurors. This is especially so because there was no holdout juror or impasse at when the issue with Juror No. 13 arose.

The majority does not go that far—at least explicitly. Nonetheless, despite delving (in great detail) into the record the district court created in this case, it says that “a district judge should [not] ordinarily interview several jurors or conduct a lengthy investigation of alleged juror misconduct.” A judge “faced with anything but unambiguous evidence’ that a juror is committing misconduct “need go no further” with an investigation. (emphasis added). Need not is not must not. But it is hardly an endorsement of probing allegations of juror misconduct.

Judge Wilson’s dissent takes both Judge Brasher and the majority to task on this point. A rule that stops the investigation when the judge is “faced with anything but unambiguous evidence, will usually stop the investigation before it starts—or at least before it uncovers the truth,” he argues:

I am concerned that this model—particularly when combined with the majority’s holding—creates a Catch-22 for district courts. In order for a juror’s removal to be affirmed on appeal, the district court must develop a record that will unambiguously support that decision. Of course, as the majority recognizes, “a juror might say that he is deliberating and explain his decision-making in terms of the evidence, when he is in fact not following the jury instructions.” Yet in the majority’s view, the district court cannot make a credibility determination about whether to accept the juror’s assertion unless there is a separate factual foundation for rejecting the testimony.

Jurors could thus evade scrutiny by simply saying the “magic words” that they are basing their opinion on the evidence.

This would be intolerable, Judge Wilson continued, because juror misconduct is real. For support, he pointed to white juries’ refusal to convict Byron De La Beckwith for the murder of Medger Evers and the acquittal of Emmett Till’s murderers. While this case was not like those, “[o]ur history … should remind us that while juror secrecy is of great importance, so is ensuring that juries render verdicts anchored in the facts and the law.” Judge Wilson believes the district court struck the right balance between secrecy and inquiry in this case.

Conclusion

The Eleventh Circuit’s various opinions in this case run for 98 pages. And, as the roughly 8 pages of text here suggest, they are rich with contrasting views on the role of prayer in jury deliberations and the nature of appellate review. Who has it right? I’ll admit to being deeply torn and then leave it to you to decide. But the one clear implication of this case is that questions of religion continue to roil the courts.

What do you think? Start a discussion by leaving a comment below.

The case is United States v. Brown, No. 17-15470.

The majority included Chief Judge Pryor (author) and Judges Newsom, Branch, Grant, Luck, Lagoa, and Brasher.

Judge Newsom filed a concurring opinion, which Judge Grant joined.

Judge Brasher filed a concurring opinion, which Judge Branch joined.

The principle dissent included Judges Wilson (author), Martin, Jordan, and Rosenbaum.

Judge Rosenbaum filed a separate dissent, which Judges Wilson and Martin joined.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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Mens rea (law Latin for “guilty mind”) is one of two fundamental elements of any common law crime—the other is the actus reas or “wrongful act” itself. In law, mens rea refers to “the state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.”1

For example, to commit murder a person must have acted with “malice aforethought,” which is often referred to on TV as “premeditation.” To be guilty of theft, a person must have acted with intent to deprive the victim of property. And so on.

In a joint report, the National Association of Criminal Defense Lawyers and the Heritage Foundation (two organizations that do not often find themselves on the same side of issues), called the mens rea requirement “a core principle of the American system of justice.”2 It ensures that citizens are not “subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful.”

But not all crimes have a mens rea element. Legislatures, including Congress (as the NACDL and Heritage Foundation noted), have increasingly enacted so-called “strict liability” crimes, which do not require proof of any mental state at all. Which is what makes a recent decision out of Washington (the state, not the District) so interesting.

No Tolerance for Drug Possession

At the beginning of this year, Washington was the only state whose felony drug possession statute was a “strict liability” offense, requiring no proof that the defendant knew she possessed a controlled substance. The last other state to have such a statute, North Dakota, amended its law in 1989 to add a “willfulness” element.

As for the defendant here: Shannon Blake’s story began more than four years ago, in 2016, when she was caught up in a police search for stolen vehicles. After she arrived at the jail, an officer discovered a small baggy of methamphetamine in the coin pocket of her jeans. At trial, Blake testified that a friend bought the jeans, that she never used meth, and that she did not know the drugs were in her jeans pocket. Her boyfriend also testified that Blake did not use drugs and had received the jeans from a friend.

But because Washington’s felony possession statute was a strict liability crime, the trial court convicted her without deciding whether Blake knew the drugs were in the jeans pocket. Blake appealed and the Supreme Court of Washington held that the state’s felony possession statute was unconstitutional.

Violative of Due Process

The Court began by noting that “state legislatures have the police power to criminalize and punish much conduct.” But the due process clause limits that power, and “generally bar[s] state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.” This, as well as the principle that the existence of “mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence,” are among the “certain personal liberties” protected by the due process clause.

So while a legislature can create pass strict liability statutes to protect the public, the majority explained that lawmakers may not criminalize “essentially innocent” conduct, and especially passive conduct or non-conduct unaccompanied by criminal intent. As support, the Court cited the U.S. Supreme Court’s decision in Lambert v. California,3 which struck down a Los Angeles law that criminalized remaining in the city for more than five days without registering with the city government.

The Supreme Court of Washington went on to say that the guarantee of due process in Washington’s state constitution is even broader than the federal guarantee. In particular, the Court cited cases guaranteeing a “right to be let alone,” that the state may interfere with “only if it is necessary to protect the rights and welfare of others.”

By criminalizing possession without requiring that a defendant know that she was carrying a controlled substance, the majority explained, Washington had criminalized innocent, passive non-conduct. Trafficking drugs is one thing, but the possession statute went far beyond that. By criminalizing unknowing possession, it would make a felon of:

a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter.

This the state may not do under its police powers.

A Defense is Not Enough

The state argued that, because the Washington courts had (some years before) manufactured an “unwitting possession” affirmative defense, there was no due process problem.4 But the existence of an affirmative defense is irrelevant, the Court said. The right question is whether possession could be criminalized without including a mens rea element. And the answer to that question is no.

Not Malum in Se

The state also listed a parade of horribles that it claimed would follow from striking down the possession law. It claimed that other strict liability offenses, like child rape, would be open to challenge on similar grounds.

Not so, the Court explained. The possession statute was unconstitutional not just because it was a strict liability statute, but also because it criminalized wholly innocent and passive conduct.

Other strict liability crimes, like child rape, would not fit that bill. Unlike passive, unwitting possession, child rape (or other strict liability crimes like practicing law without a license) require actual conduct.

Although it is not mentioned explicitly, the opinion also speaks in language that sounds heavily in the classic distinction between conduct that is malum in se (wrong in itself, or morally wrong) and conduct that is malum prohibitum (wrong because it is forbidden). By repeatedly making reference to “innocent” conduct throughout the opinion, the majority seems to draw a distinction between strict liability offenses that target morally repugnant conduct (like child rape) and those that target otherwise innocent behavior (like unwittingly carrying meth in a coin pocket).

The durability of these distinctions will likely be tested in future cases.

Conclusion

Among other things, this case is powerful evidence of the continued vitality of state constitutions and state supreme courts as engines of change in criminal law and procedure.5 Though they have certainly gone awry in the past—and often badly so—they also often get the law right. The U.S. Supreme Court is not the only avenue for vindicating individual rights.

It has also touched off a debate in Washington about whether to enact a new possession law and—if so—how to frame it. It is a conversation that is part of a national conversation about the wisdom of using criminal laws to fight addiction.

And the decision is a reaffirmation of central criminal law principle: A person who acts wrongly, but unintentionally, may be a tortfeasor, but generally is not a criminal. If other courts follow suit, then mens rea is (and should be) here to stay.

The case is State of Washington v. Blake, No. 96873-0

The majority included Chief Justice González and Justices McCloud (author), Yu, Montoya, and Whitener.

Justice Stephens concurred in part and dissented in part.

Justices Johnson, Madsen, and Owens dissented.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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In December 2021, this opinion was vacated and overruled by the Seventh Circuit sitting en banc. That opinion can be found here.

In 1996, a unanimous Supreme Court held that defendants could not challenge traffic stops under the Fourth Amendment merely because they were pretextual.1 Thus, if police saw a car cross slightly over the center line, they could legally stop the car even if their real motivation for the stop was a belief the driver was transporting drugs.

But, the Supreme Court later said, the police were limited by their professed reason for the stop and could not unreasonably prolong it unless they discovered additional cause for suspicion.2 A recent Seventh Circuit case gives bite to that limit.

From Tailgating to Drug Trafficking in 40 Minutes

In June 2018, a deputy sheriff sent a message to his fellow law enforcement officers about a Volkswagen he thought was suspicious: it had California plates and was traveling roughly 15 to 20 miles per hour under the speed limit in an urban area. Spotting the car and suspecting it might be involved in drug trafficking, another officer followed it, hoping to catch the driver in a minor traffic violation that would allow him to pull the car over.

After another car cut the driver off at the intersection of two interstates, the officer got his chance. And he pulled future-Defendant Janhoi Cole over for “following too closely.”

The officer requested Cole’s license and registration, then had Cole sit in the front seat of his cruiser. What followed was eight-and-a-half-minutes of “conversation,” six of which related to Cole’s residence, employment, travel history, travel plans, vehicle history, and registration information. At the end of this conversation, the officer said he was going to let Cole off with a warning but ordered Cole to follow him to a nearby gas station because he was “concerned for their safety” on the unprotected shoulder.

This was not true. The officer later testified that he was not going to let Cole go until he had “somehow managed to search the car for drugs.” And he used the drive to the gas station to radio for a drug-sniffing dog.

At the gas station, the officer continued to question Cole in what the Seventh Circuit described as a “faux-casual” manner about his itinerary. Cole’s answers began to be contradictory and incoherent in various ways as the questioning went on.

The drug dog finally arrived 40 minutes after the original stop, quickly alerting to the presence of drugs—namely, several kilograms of methamphetamine and heroin in a hidden compartment.

The district court denied Cole’s motion to suppress.

Six-and-Half Minutes Too Long

The Seventh Circuit reversed. But not for the reason you might expect. The panel majority focused neither on the drive to the gas station nor the 40 minute delay between stop and drug-sniff. Instead, it held that the stop was unconstitutional because of the officer’s six-and-half minutes of itinerary questions in the police cruiser.

Judge Hamilton wrote that the officer “slow-walked his work throughout the stop” and spent the time in the cruiser “questioning Mr. Cole about topics he already knew the answers to or went beyond the limited topics justified by the traffic stop,” such as determining whether to issue a ticket. While there might be circumstances where itinerary questions are justified—such as where a driver is drowsy and the officer is not sure whether it is safe for them to continue on their way—none were present in this case.

The Court rejected the government’s argument that the officer did not unreasonably extend the stop because this questioning lasted only 8-10 minutes and the usual length of this sort of stop is 15 minutes:

Even if we assume that issuing a warning typically takes 15 minutes … that does not mean that an officer has 15 free minutes to investigate other crimes before starting the substance of the stop in the hope that the questioning will unearth signs of other wrongdoing to justify still more detention and more investigation …

Here, the officer even admitted that he delayed collecting insurance information critical to issuing a warning so that he could try to piece together Cole’s story.

Road Related is Not Enough

The government argued that the officer’s questions were permissible and did not improperly extend the stop because they were “road-related.” But the Court emphatically rejected that argument, characterizing it as a claim that “officers may insist that a driver who is lawfully stopped for a minor and routine traffic violation be able to convince the officer that she is not a criminal.”

“Under the Constitution,” the majority wrote, “drivers do not need ‘stories’ to travel on interstate highways.”:

Rodriguez made clear that police officers may not use the implicit threat of state-sanctioned violence to hold someone against his will to extract details about his personal life, absent reasonable suspicion of criminal activity.

The Court distinguished Cole’s case from its earlier decision in Lewis,3 pointing out that in the latter the officer had asked itinerary questions while he completed necessary paperwork. Lewis had thus failed to show that the questioning had extended the stop at all.

Judge Hamilton also distinguished relatively innocuous questions—such as “How are you doing?” or “Where are you going today?”—from the more invasive questioning here. A “brief context-setting question” at the beginning of the stop does not raise constitutional concerns. But “extended itinerary questioning,” unrelated to the purpose of the stop, does absent additional reason for suspicion.

Lawful Behavior Doesn’t Count

The Seventh Circuit also brushed aside the government’s claim that the officer had sufficient suspicion of drug activity at the outset of the stop to justify his questions.

The government said that the officer’s suspicion was more than a hunch because Cole “was from a large American city, drove cautiously on a major interstate highway, owned a popular brand of car, sat with good posture, and had empty fast-food wrappers in the passenger compartment.” But, as Judge Hamilton wrote, those “are perfectly normal facts that could easily be true of millions of law-abiding Americans.” If these facts were enough to create reasonable suspicion, officers would be justified in stopping and questioning pretty much anyone about potential drug trafficking activity.

The Court took special umbrage at the suggestion that driving below the speed limit could support reasonable suspicion, writing that it had “rejected the startling notion that obeying traffic laws may … justify a stop.” It emphasized that lawful operation of a car can only be considered suspicious activity under extraordinary circumstances.

The majority also recognized that it is perfectly normal for people to be nervous when stopped by the police. So that nervousness alone cannot be a basis for extending traffic stops.

Conclusion

The Seventh Circuit’s opinion is notable for its forcefulness in rejecting the government’s attempts to justify the officer’s questioning. Throughout the opinion, the majority is especially sensitive to the risk that blessing the government’s arguments would give the police the discretion to stop and question a great many innocent people—what Professor Jane Bambauer has called the risk of “hassle.”4 This sensitivity is all the more significant given the relatively short period of time in question (just six-and-half minutes). The decision thus provides ammunition to future defendants challenging pretextual stops and itinerary questioning.

The opinion is United States v. Cole, No. 20-2105

The panel included Judges Hamilton (author), Rovner, and St. Eve. Judge St. Eve dissented.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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District court judges often believe a within-guidelines sentence is safe from reversal on appeal. But the opioid epidemic has rocked firmer beliefs in recent years. Now it is shaking this one, at least in the Fourth Circuit.

In a 2-1 decision written by Chief Judge Gregory, the Court of Appeals held that a within-guidelines sentence of 210 months (the low-end of the district court's guidelines calculation) was substantively unreasonable because, among other things, the trial court failed to give adequate weight to the defendant's history of addiction. And that is not the only interesting facet of this case.

A Sad Story

First the facts. Precias Freeman broke her tailbone when she was around 18 years old. As part of her recovery, she was prescribed opioids and quickly developed an addiction. Twenty-one years later, she was still in the disease's thrall.

Freeman obtained the drugs by forging prescriptions, and she paid for her addiction by selling less than half of the drugs she got—mostly at below-market rates to another woman. Despite this, she was never violent or associated with others who were violent.

By the time of her arrest, Freeman was pregnant, in considerable debt, and her opioid use had increased to 60 to 80 tablets per day. In a proffer to the government, she “conservatively” estimated that she had sold 52,000 hydrocodone tablets between October 2014 and October 2016.

While she was on bond and waiting to be sentenced, she and her family were evicted from their apartment and she moved out of state with them, in violation of her bond. Nonetheless, she neither missed any court dates nor attempted to evade arrest when authorities caught up to her a few months later.

In the meantime, probation calculated her guidelines range using, not her proffer, but an earlier statement to the police, resulting in an inflated drug quantity. Despite an agreement with the government to revise the calculation downward based on the proffer, the probation department instead doubled-down and increased the quantity.

Freeman's counsel waived any objection to the increase and the department's refusal to give her credit for accepting responsibility, saying those objections "might be considered minimal" and would not affect her sentence. Instead, he focused on mitigation (in the form of Freeman's history of addiction) and an effort to gain admission to a drug court diversion program.

The district court refused and sentenced Freeman to 210 months in prison. The Fourth Circuit reversed, but in many ways that is the least interesting part of the decision.

Dear Counsel, Please Try Again

To begin with, Freeman's appointed appellate counsel at first filed an Anders brief, arguing that there were no meritorious issues to pursue on appeal. But the panel disagreed, ordering Freeman's counsel to brief substantive reasonableness and ineffective assistance of counsel.

Not surprisingly, counsel took the hint. And even less surprisingly, the panel liked the argument they suggested.

An Obligation to Make Meritorious Objections

Turning to the decision itself, the panel explained that, in addition to failing to object to the increased drug quantity calculation, Freeman’s counsel also failed to notice that an enhancement for “obstruction” likely should not have applied. While traveling to North Carolina may have counted as “avoiding or fleeing arrest,” that alone is not usually enough to support an obstruction enhancement.

The court dismissed out of hand trial counsel’s suggestion that pursuing these objections would have created a “hostile environment” in the courtroom. It stressed that while “that may be an appropriate justification for foregoing a meritless objection,” it is “never…an appropriate justification for waiving a meritorious one.” As the dissent pointed out, this refusal to credit a purported strategic justification for not making an objection is unusual—to say the least.

The majority also cited the “numerous, inconsistent, and shifting justifications” counsel provided for his decisions as evidence that he “went into his client’s sentencing woefully unprepared.”

Insufficient Consideration of Addiction

Next, despite noting that “sentences that fall within the Guidelines range are entitled to a presumption of reasonableness,” the majority concluded that Freeman’s sentence was substantively unreasonable.

The court noted that, based on data from the Sourcebook of Federal Sentencing Statistics, the average sentence in cases involving a similar drug weight was 95 months, compared to Freeman’s 210-month sentence. It faulted the district court for failing to consider this disparity.

The majority also held that the district court failed to adequately consider Freeman’s “severe” addiction to hydrocodone. It further emphasized that she sold the pills principally “to sustain her own addiction.” Finally, it stressed that “hydrocodone requires users to take progressively more pills in order to feel its effects and avoid painful withdrawal symptoms. The addiction can quickly take over a person’s life.”

In light of this addiction, a within-guidelines sentence was not substantively reasonable:

In the absence of countervailing evidence such as acts of violence, none of which appears in the record before this Court, Freeman’s severe opioid addiction and her disparate sentence merited a downward variance in this case.

A Curious Footnote

Perhaps the most interesting part of the decision, though, is a footnote at the tail end of the majority opinion. Chief Judge Gregory wrote that “[i]t is worth noting that other parties appear to bear significantly greater responsibility for the opioid crisis,” citing a recent DOJ settlement with the Sackler family. The Sackler family are the owners of Purdue Pharma, one of the drug manufacturers most notorious for pushing doctors to prescribe opioids.

The Sentencing Guidelines do recognize the possibility of a sentence reduction based on an offender’s relatively minor role (U.S.S.G. § 3B1.2). But the suggestion that drug company malfeasance might reduce the culpability of those suffering from addiction is a novel, and—for those concerned about overcriminalization and the collateral consequences of the war on drugs—positive development.

Although the opinion does not mention it, the footnote also hints at a disconnect between sentencing Freeman, who is suffering from addiction, to prison when pharmaceutical executives are able to resolve allegations related to the opioid crisis through monetary settlements with the government.

Conclusion

In sum, this decision reflects a much more compassionate view of those convicted of opioid-related offenses and a skepticism of counsel’s failure to make meritorious objections out of a concern about “rocking the boat” at sentencing. Its greater focus on the reality of addiction and the relative role of lower-level offenders in the opioid crisis will likely be relevant to many defendants facing sentencing in the future.

The case is United States v. Freeman, No. 19-4104 (4th Cir. 2021).

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

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