Eleventh Circuit in the past week...

Published opinions have slowed down somewhat after the post-spring break rush. Six opinions have issued since Thursday, on a variety of issues, none of which is groundbreaking, but each contains an interesting tidbit or two. We have two criminal cases (one drug case and one white collar case), two civil rights cases, a tort case (based on Florida law) with a small federal procedural issue, and a habeas case.

On Thursday, the Eleventh Circuit issued two opinions in criminal cases:

In USA v. Efrain Garcia-James, the court affirmed the convictions of several members of a drug conspiracy, although it reversed one gun conviction based on sufficiency of the evidence. Meanwhile, in the somewhat higher-profile case of USA v. Livesay, the Eleventh Circuit reviewed, for the second time, the sentence of Kenneth Livesay, Healthsouth's Assistant Controller, who pled guilty to charges relating to falsifying financial statements in order to meet analysts' expectations, and it found his sentence unreasonably low. It seems the district court was influenced by the acquittal of the CEO (Scrushy), and decided that, although the sentencing guidelines called for 6 or 8 years of prison, he should only have 5 years of probation and should not serve any time in prison. Although there was room for departure from the guidelines in light of Livesay's assistance to the government, the Eleventh Circuit held that this sentence, providing for no custodial sentence at all, was outside the range of reasonable. (Interestingly, in the drug conspiracy case, the lowest sentence was over 11 years in prison.)

Friday was civil rights day:

In Vila v. Padron, the Eleventh Circuit agreed with the district court that the plaintiff could not state a claim for First Amendment retaliation under the circumstances of the case. The employee was an attorney working for Miami-Dade Community College, and had objected to a variety of transactions she was concerned were illegal or unethical because they violated bidding procedures or involved questionable use of funds. She was subsequently terminated. However, because her expressions of concern were within the scope of her official job duties (see Garcetti v. Ceballos), and because she only expressed the concerns internally, the Eleventh Circuit held that her claims of retaliation were properly dismissed because she was not speaking as a citizen (as opposed to employee) on matters of public concern.

Velazquez v. City of Hialeah is a revised opinion in an excessive force case, clarifying that the opinion originally issued in March was only meant to reverse summary judgment as to two defendants. The issue was whether the plaintiff had to be able to show, at summary judgment, which officer was responsible for the excessive force, and the answer is no. As both opinions state, "[w]ere this the law, all that police officers would have to do to use excessive force on an arrestee without fear of consequence would be to put a bag over the arrestee's head and administer the beating in silence."

Finally, Monday saw two civil cases with both federal and state issues embedded in them. Locke v. Suntrust is a Florida tort case arising out of Locke's injuries during a robbery of a Suntrust bank, but before addressing the substantive issues, the Eleventh Circuit affirmed the district court's grant of leave to file a notice of appeal after the thirty-day deadline where counsel for the plaintiff filed a motion five days after the deadline with an affidavit stating that a legal assistant had miscalculated the deadline. (This is the situation that keeps attorneys awake at night... but it's good to know district courts grant such a motion.)

Mauk v. Lanier is a Georgia habeas case involving the applicability of the landmark Powell v. State decision, finding the sodomy statute violative of the state constitutional right to privacy insofar as it applies to private consensual sex, to forced sodomy in a remote wooded area. The Eleventh Circuit found that, under Georgia law, the district court erred when, dodging the substantive question, it held that Powell did not apply retroactively on collateral review. However, it found that Mauk had not exhausted his constitutional claim -- that Powell effectively created an additional element of sodomy claims, which had not been determined by a jury -- in his state direct appeal. Apart from this interesting question, the Eleventh Circuit clarified a point of habeas law: it instructed the district court to dismiss without prejudice, as explained here, so that the plaintiff would have an opportunity to exhaust his claims in state court.