United States v. Jernigan

RE- vacancy position. Accordingly, a viable we REVERSE and existing or however, here, The issue MAND case to the with decision district court new high- not to create four whether or summary judgment to enter instructions Certainly, ig we cannot positions. level favor of Alfred as to the claims Chief positions no fact that there were nore the him in ca- brought against his individual when was made existence the decision pacity. merely were positions pro who wanted posed by a subordinate .official positions and

Chief Alfred to create the

expected eligibility him to do so before Moreover, plaintiffs

list were expired. promotion not to a unless a vacan entitled America, UNITED STATES of cy position arose or a new created. Plaintiff-Appellee, gender- intentional race- and Although unlawful, none of based discrimination is plaintiffs fairly Randy JERNIGAN, Nelson, set forth cases Wendell on notice that clearly put Chief Alfred Defendants-Appellants. case at issue in this was un decision No. 00-16199. result, say cannot lawful. As we Appeals, United States Court of incompetent” “plainly Chief Alfred was Eleventh Circuit. “knowingly federal violat[ed] that he law5’when he decided not create the Aug. Vinyard, new F.3d at 1346 positions.

(internal omitted). Thus, quotation marks

we that Chief Alfred is entitled to hold

qualified immunity in this case.

CONCLUSION plaintiffs’ allegations es-

Although Chief Alfred violated the

tablish that Clause,

Equal Protection such violation clearly in 1999

was not established when act occurred. Under unconstitutional unique facts of this we find that equal protection right to be general employment

free from discrimination did fair Chief Alfred with provide that his actions were unlawful.

clear notice

Furthermore, any unable to were find enough clearly that was similar

case law

establish that 1999 it was violation of public Equal Protection for a Clause permanent posi-

official to decline create official proposed

tions as a subordinate upon

even when that decision was based gender eligible the next race or Thus, we hold Chief

candidates. immunity. qualified

Alfred is entitled to Gomez, Hug-

Debra Scott Chandler G. GA, Macon, gins (Court-Appointed), Defendants-Appellants. Christian, Macon, GA, for

George R. Plaintiff-Appellee. MARCUS,

Before Circuit BIRCH *, Judge. District Judges, and FULLAM * Fullam, Pennsyl- Judge Eastern John P. Dis- trict for the District Honorable

MARCUS, Judge: Circuit they station, Once had returned to the again questioned officers Nelson about criminal appeals These direct stem from gun. his, He reiterated that it was not appel- the November 2000 convictions of explained Jernigan, upon realiz- Nelson, Randy Jernigan lants and Wendell ing over, that he was being pulled had being each on one count of felon removed pants, from his wrapped firearm, possession a violation of 18 it in a red bandana and placed it between § 922(g). U.S.C. Although appellants the seat backing and the were tried where it was together, appeal their claims on distinct, largely subsequently are found. only repeated with one substan- Nelson also being tive claim advanced both Jerni- statement that he probation. was on gan end, Indeed, 15, 1994, Nelson. we conclude on October Nelson shot that no claim appellant advanced either person car, another from inside a meritorious, accordingly and we affirm 7, led an April to aggravated assault their convictions in all respects. conviction in the Superior Court of Bibb County, Georgia. Subsequently, on No-

I 5, 1996, vember he was convicted in the 15, 1998, April Jernigan On was driving same possession court of of a firearm a type of tow truck known as a “wrecker” convicted felon. This latter conviction with in riding passenger Nelson seat 20, stemmed August from an 1996 incident pulled when the vehicle was by police over in which Nelson passenger was a in a car Macon, in Georgia having an expired that was stopped by Macon police officers plate tag. license questioned Officers Jer- for traffic violations. When the vehicle nigan, quickly learned that he was driving searched, shotgun officers found a on license, suspended with a drivers’ ar- and the floorboard of the back and two hand- rested him. Although Jernigan initially guns seat, under the front as well as co- gave name, the officers a false they found caine. bearing driver’s license picture and Jernigan felon, also was a convicted and true running name. After a background as such legally possessing barred from check, the officers learned that Jernigan a firearm. Specifically, he had been found was a convicted felon. Incident to this guilty on February violating 1985 of arrest, vehicle, the officers searched the Georgia’s Controlled Substance Act. Sub- which, seats, instead of individual bucket sequently, on June Jernigan was single had a padded bench with a cush- being convicted of possession a felon in ioned back support traversed the a firearm in Superior width of Court of Monroe the truck’s cab. Stuffed between County, Georgia. In that Jernigan back of the seat and the bench the had been stopped sobriety officers found a at a checkpoint loaded .380 semi-automatic pistol when a wrapped a red Sheriffs Upon deputy spotted bandanna.1 a loaded discovering weapon this Smith the officers and Wesson semi-automatic pistol Nelson, showed it to spontaneously who tucked into the seat. Although gave he exclaimed that probation he was on deputy name, and the a false Jernigan’s true that the weapon was not his. The officers identity revealed, was quickly as was his took custody Nelson into as well. felon, status as a and he was arrested. vania, sitting by designation. the seat ... completely through was stuck you just seat and bulge.” could see a 1. One arresting specifically officers de- pistol being scribed the "stuck down within addition, government year introduced approximately one delay After a following initial ar- testimony their Marshall Deputy and months Brad nine (and release), subsequent Bennett, Jerni- rest their one of the who had ar- officers in this charged both were gan and Nelson Jernigan February on 2000 on rested of a being possession felons case with on based the indictment this warrant firearm, 922(g), § of U.S.C. violation noted, lengthy delay As there was a case. 29, 2000. arraigned on March and were initial arrest and their appellants’ between 21, 2000, notified April On indictment, Jernigan during and this time Jernigan Nelson that it intended custody. were Bennett acts of their bad introduce evidence attempted he told the when 404(b), pursuant to Fed.R.Evid. Jernigan following the indict- recapture a motion April 2000 Nelson filed ment, leaving spotted Jernigan’s he car of such limine the admission preclude apartment complex. Although Atlanta Then, September evidence. vehicle, stop Jernigan tried to Bennett to dismiss the indictment Nelson moved by backing wrong way fled car the Speedy alleged based on an violation of one-way Later that day down street. § Act, The district Trial 18 U.S.C. sitting was found on the front motion, the case denied stoop apartment of his with the front door proceeded to trial on November 2000. partially open. to this arrest offi- Incident trial, among a stipulation At to pursuant protective sweep of cers conducted the government, and the defendants where apartment they found unloaded inculpat- tapes two statements of Nelson’s rifle, Jernigan semi-automatic ad- i.e., spontaneous his exclama- ing Jernigan, owning, maga- 30-round mitted to and a and his weapon tion when first showed the objected Jernigan to the introduc- zine. police statement at the formal subsequent, evidence well. tion of this station, jury. for The played were the part, Jernigan permitted For his was to government Jernigan’s also introduced evidence that Nelson was a introduce a felon being June 1997 conviction for that gang, of the Bloods and this member firearm, No- possession of Nelson’s symbol the color red as a gang used 5, 1996 conviction for this same vember allowing presentation the membership. April aggra- and Nelson’s offense2 evidence, rejected the district court these vated conviction.3 Because assault objection that the evidence his Nelson’s knowing posses- involved the offenses all membership prejudicial more gang was firearm, the district court deemed sion of a § the probative guilt 922(g) of his than 404(b) them under admissible Fed.R.Evid. offense, thus under Fed. and inadmissible that the appellants’ knowledge to establish introduced Jernigan also the R.Evid. 403. of Jerni- weapon present the cab testimony Roger Stembridge, proba- truck, gan’s charged jury and it jury told the officer who tion surveillance inference propensity no could drawn August search of Nelson’s that an objected Although Jernigan from them. having search resulted residence —the to of this bad acts” presentation “prior yielded .380 evidence, probation did not. from a Nelson violation— not, however, during incident which this convic- inform 2. The did stemmed, jury in con- jury merely that cocaine also was found but told tion offense. nection with this crime of a Nelson had been convicted knowing possession of a firearm. involved however, not, government did inform 3. The actually jury shot someone that Nelson ammunition, tion; as in admitting the same of his past caliber evidence 404(b); pictures and of Nelson and instant crimes under Fed.R.Evid. and gang wearing other members rejecting known his challenge Fed.R.Evid. flashing gang signs. This color red and the admission regarding to of evidence by investiga- corroborated testimony was turn, gang membership. Jernigan, Hoffman, who testified tor also Melanie by contends court erred practice mem- gang that it for is common denying his motion new trial based weapons their bers to their own wrap testimony admitting West’s Nel- bandannas. hearsay son’s two statements that gun Jernigan.4 7, 2000, belonged

On November returned against guilty Jernigan verdicts Nel- 5, 2001, February Jernigan

son. On II imprisonment sentenced months sentenced to 120 months Nelson was Appellants’ Sufficiency A. the Evi- imprisonment. dence Claims 1, 2001, February On moved Although our review of the suffi for a based on what he new trial deemed ciency against appellants the evidence newly discovered admissions made Nel- novo, Anderson, de see United West, a By son to Michael fellow inmate. (cita account, West’s admitted omitted), in making tion this determination in Jernigan’s weapon belonged truck we “view the ‘in light most him, that he had placed government, favorable to the with all rea seat behind the bench without sonable inferences and credibility choices West knowledge. said that Nelson had ” (Nelson) government’s made the favor.’ United him he helping told that was Ortiz, (11th 1030, States convict an innocent F.3d man. also stated West Cir.2003) (quoting Miles, Jernigan that neither nor defense counsel 1341, (11th Cir.2002)). was aware of Nelson’s until 290 F.3d admission af- trial, end, ter the conclusion of the when jury’s “[a] he the will be verdict affirmed wrote a informing letter the district court ‘if a reasonable trier of fact could conclude of the same. The district court denied this that guilt the evidence beyond establishes ” 1, motion August Miles, a (quoting reasonable doubt.’ Id. 1355). Moreover, 290 F.3d at as we have appeal, Jernigan

On and Nelson both explained, we also “review de novo the challenge sufficiency their convictions on of district court’s denial of a motion for judg the grounds, arguing specifically evidence of acquittal, ment applying same stan that government present failed to evi- used in reviewing dard the sufficiency of dence from a juror which reasonable could evidence, meaning that we view the they conclude knowingly possessed that a facts and draw all in light firearm inferences and that the district court erred most favorable to the denying a motion for Government.” Unit judgment of Descent, 703, acquittal Additionally, on this basis. ed States v. Nel- (11th Cir.2002) (citations son omitted), that the contends district court erred cert. de (1) failing dismiss the indictment in nied 537 U.S. 123 S.Ct. (2003). Speedy his case on a Act based Trial viola- L.Ed.2d 820 appellant 4. We note neither any that they advances the same wrong- indictment or that were they joined claim that were prejudicially ly together. in tried (11th Cir.) (“A in defendant’s were and Nelson Jernigan In this 922(g), § violating 18 U.S.C. prove is often difficult to and often convicted tent evidence.”), ele that three distinct entails an offense must be inferred from circumstantial (1) a con that the defendant was ments: 1030, 122 t. denied 534 U.S. cer felon; was that the defendant victed (2001); 151 L.Ed.2d 440 S.Ct. firearm; and of a knowing possession (11th Pollock, 1044, 1048 inter affecting firearm that the was (“We have noted the previously v. De commerce. See state difficulty proving intent con special leveaux, 205 1296-97 Cir. cases.”). Here, the jury could spiracy 2000) Billue, 994 (citing United States inferred all the circumstances Cir.1993)). Al 2n. stop, with surrounding coupled initial the suffi appellant neither contests though Jernigan previously the fact that and sub against him with ciency of the evidence requiring had committed acts sequently prong or third respect to first i.e., state the same those mind — failed test, claim for resulted in his June 1997 conviction that could convince present evidence being possession a felon in a firearm he knowingly factfinder reasonable possession weapons at the time cab of gun found possessed arrest,5 just February of his tow truck. shortly after he was indicted in this case stated, there Simply disagree. fire possession felon in of a for being reasonable, on which a ample was knowingly Jernigan possessed arm —that jury could have based conclusion gun found his truck. knowingly possessed and Nelson Jemigan’s in the cab of weapon found Nelson, equally plau As was Jernigan, the government truck. As for concluded, for the to have based sible that he was owner established presented, on the evidence was gun in which the operator vehicle weapon who stuffed the behind hidden pistol that the was seat, just he had as much bench since immediately next to the driver’s “area” question did Jerni access to area Moreover, a rea bench seat. the truck’s gan. quite notably, Moreover and juror have afforded credence could sonable bandanna, wrapped in a red impli statements to Nelson’s out-of-court juror a reasonable could convinced been Jernigan. It would have cating stated, who, Nelson, belonged it as to infer the fact reasonable to equally gang member a street that used was a of arresting initially gave the Jernigan color, symbol membership. red as of a attempt that he a false name officers addition, we a rea have no doubt that identity as conceal a felon ing to his also could have conclud sonable factfinder being a prosecution a for felon avoid possessed the knowingly ed'that firearm, of a and that this effort possession i.e., found in the he did weapon truck — a consciousness evidences possess by it mistake or accident—based found in his truck. possessed gun fact aggra prior of his convictions for on each Additionally, often noted the diffi we have being posses a felon in vated assault and a establishing defendant’s culty faced sion, knowing of which involved the See, v. e.g., mind. States state of United Nostari-Shamloo, possession weapon. 255 F.3d Manoocher by admitting infra, plain evidence of these bad fully explained district error As is more 404(b). acts under Fed.R.Evid. did not its discretion or commit abuse Thus, although a reasonable could United v. Zapata, States 139 F.3d (11th Cir.1998) that either Jernigan have concluded or (outlining the same knowingly possess Nelson did not test). truck, case, however, In this Nelson ad presented permit sufficient evidence mits that to object he failed to this evi of fact to reasonable trier conclude eon- court, dence before the district ac trarily. court did The district not err in cordingly we review its admission not for

denying motions for appellants’ judgments abuse only of discretion but instead for acquittal. Brazel, plain error. See United States v. WMb) Argument B. Nelson’s Rule (11th Cir.1997) (“[T]he 404(b) Nelson also contends that argument Rule was not by court erred admitting evidence properly preserved and thus is reviewed crimes Fed.R.Evid. for plain only.”); error United v. 404(b).6 outset, At the we note that Rule Williford, F.2d Cir. 404(b) inclusion, a rule and that ac 1985) (“Evidentiary errors that are not “404(b) evidence, cordingly like other rele specifically objected to at trial are re evidence, not lightly vant should be exclud error.”); plain viewed for Wilson Atta to the prosecution’s ed when is central way, 757 F.2d Perez-Tosta, case.” United States 36 (to preserve objections admissibility (11th Cir.1994). Typically, evidence, objections specific must state in reviewing properly preserved claim otherwise, grounds; only review is for district court abused its discretion error). plain standard, Under this “[w]e of a admitting evidence pri- defendant’s only correct errors that are particular 404(b), or bad acts under Fed.R.Evid. ly egregious and that ‘seriously affect the employ part a three test: fairness, integrity public reputation of First, the evidence must be relevant to judicial proceedings,’ and then only when an issue other than the defendant’s char- justice miscarriage of would result.” Second, acter. part the relevance (internal Williford, 764 F.2d at 1502 cita analysis, there must be proof sufficient punctuation omitted); tions and see also a jury so that could find that the defen- Gresham, Third, dant committed the extrinsic act. (11th Cir.2003) (“Under plain er possess probative

the evidence must val- standard, ror ue that substantially is not Gresham must that: outweighed show (1) (2) occurred; its undue prejudice, and the error the error was must requirements meet the other plain; it affected his rights; substantial Rule 403. seriously affected the fairness of Miller, judicial proceedings.” (citing (en banc) (footnote 1538 States Humphrey, 585, v. 164 F.3d 588 n. omitted); Cir.1999))). internal citations see 3 also provides: accident, 6. This rule provided mistake upon or that crimes, accused, request wrongs, Evidence of prosecution other or acts the the in is a not prove admissible to the character provide of a criminal case shall reasonable no- person in order to show action in trial, conformi- general tice in of advance ... of the however, ty may, therewith. It be admissi- any nature of such evidence it to intends purposes, ble proof for other such as of introduce at trial. motive, intent, opportunity, preparation, 404(b). Fed.R.Evid. plan, knowledge, identity, or absence of reiterate, case, proof knowledge’ ‘as of ... their gov to stead of the In this 1995, in presence apartment, permissible the a April introduced Nelson’s ernment 404(b).”); pursuant purpose his Rule United assault and aggravated for conviction Cassell, being for a v. 292 F.3d conviction States November (D.C.Cir.2002) firearm, (noting, in of a of of the context possession in a felon in possession of felon that knowing possession “[w]e the which involved that ‘in a de- prong previously the held cases where firearm in a car. Under first a test, charged posses- fendant is with unlawful plainly the these offenses of Miller that knowledge gun something, pos- that the sion of he on Nelson’s bore Indeed, the things in this case. the same or similar at other present sessed in estab to quite this and other circuits times is often relevant his knowl- easelaw be logical the connection clearly edge lishes and intent with to the crime regard ” knowing posses a convicted felon’s charged’ King, tween (quoting United States v. (D.C.Cir.2001))); at time and his of a firearm one sion 254 F.3d at a knowledge present Moorehead, that a firearm is States v. United (or, that put differently, subsequent time prior (holding pos- the time is subsequent possession his of is session a firearm admissible to show accidental). in As said not mistaken or knowledge knowingly in a for prosecution v. States Gomez: United possessing weapon); a similar United (2d Pelusio, a concealed F.2d 167-68 Appellant’s possession of Cir.1983) of (holding to that the introduction prior firearm on a instance relevant the charge previous a firearm in his evidence of instances which possession a of of present had been an automo- sought transport he to defendant car while a “under shotgun con- bile with were admissible drugs.... Introduction of 404(b)[ Rules Evid. to show that carrying weapon ] for Fed. viction a concealed the shotgun in the car with presence establish his helped question] dangers intention- [on was aware occasion Gomez accident”); weapons and al and not a mistake relating law to concealed Beechum, gun was States rebut Gomez’s claim that Cir.1978) (en banc) (“Once isit determined purpose pres- and its innocent requires extrinsic offense ence was mere accident or coincidence. charged as the offense its dis- same intent The district court did not abuse could find that defendant allowing cretion in such evidence. offense, the evi- committed the extrinsic (11th Cir.1991) (em- Rule step dence satisfies first added); see also United States phasis 404(b).”). — - (3d Coleman, background, it is (“Coleman doctrinal during Against wheth- put at issue trial of, say previous, pos- Nelson’s knowledge had and thus untenable er he in- sessed, knowing crimes that commission of shotgun and narcotics found weapon possession he resided with volved apartment —and possession weapon specifically, The ad- Avery Coleman. District Court logically bear on permit a car—does not mitted this evidence at the knowledge presence propensity to show Coleman’s prosecution Put narcotics, in- car was over.7 pulled time a firearm or but possess by pleading guilty, issue. Significantly, not Nelson 7. 922(g) § placed offense this element Calderon, that

simply, knowingly the fact As in where we held that the in a car possessed previous a firearm on a Rule 403 favored admissibility, calculus likely occasion it more that makes he this case the crimes other evidence admit- well, this time as knowingly did so and not by ted “bore sufficient because of accident or mistake. similarity to uphold district [court’s] relevance determination.” explained As Importantly, prior because Nelson’s supra, prior both Nelson’s offenses on his plainly knowledge crimes bore that the instant knowing offense involved the truck, present possession weapon in of a an automobile. by could district court no measure Moreover, span the time between Nelson’s plain have committed error so conclud- prior present convictions and the offense Indeed, ing. Nelson makes no showing does not render those convictions “too re- that the district court’s evidentiary ruling mote for proper consideration.” 127 F.3d rights affected substantial or that Specifically, Nelson’s convictions somehow affected the fairness integrity came years prior and 3 to the instant judicial proceedings. offense, which within temporal is well The second Miller factor plainly also is bounds of generally relevance. See id. satisfied, elementary that “[i]t a con year (holding span that a six between the proof viction is sufficient that [the defen prior offense charged and the conduct did prior dant] committed the act.” United not previous render the conviction too re- Calderon, States v. mote to be relevant to the defendant’s (11th Cir.1997) (citing United v. Ar bar). intent in the case then at ambular-Ruiz, Cir. 1993)). Here, parties stipulated addition, In case the district court Nelson’s 1995 and 1996 convictions. gave the jury separate two limiting in-

Finally, explained Calderon, as we regarding structions the impermissibility “[u]nder the third and final prong of our of considering previous Nelson’s convic- inquiry, probative value of the evidence tions as propensity evidence. See id. at must not substantially outweighed by 1333 (“[A]ny prejudice unfair may unfair prejudice.... [T]his mitigated determination existed the district lies instruction.”). within the judge’s sound discretion of the dis limiting Equally judge trict and calls for a ‘common significantly, sense the district court was careful assessment of all the preclude circumstances sur the admission of certain espe- offense,’ rounding the extrinsic including cially prejudicial aspects of Nelson’s prosecutorial need, overall similarity convictions, including be that the aggra- tween the extrinsic act and charged vated assault conviction stemmed from the offense, as temporal well as remoteness.” shooting person of another and that co- 127 F.3d at (quoting caine was along with the weapon Beechum, 914-15 Cir. led to his 1996 felon in possession 1978)) (emphasis original). empha considerations, conviction. these Based on again size that our task in this case is not we are satisfied district court did err, determine whether evidence of err, Nel let plainly alone in concluding son’s other crimes was more unduly preju probative value of this evidence dicial Instead, than probative. substantially ask was not outweighed by its only whether the district court prejudicial short, committed impact. the third plain concluding error in prong this calculus of the Miller test is satisfied here as tips in admissibility. favor of well. they of as such bear weapon, sion a and on

Although Jernigan has waived 404(b) properly that he claim the Rule knowledge present his that a was trial,8 briefly that note his at we preserved just prior his as Nelson’s convic- wrecker persuasive have no more claim would been knowledge on of this tions bore Nelson’s by Nelson. the one advanced than vein, this note the fact. In that stan- government intro- Jernigan, the Against admissibility evaluating dard for of a of his June duced 404(b) bad act under Rule subsequent by of a firearm possession conviction for that whether a determining identical to felon; possession his and convicted prior bad act should be admitted under at time of his Febru- weapons several See, v. e.g., this Rule. Dor- Both of ary arrest in this case. sey, 819 1060-61 knowing posses- involved the these crimes truck, gun, in a Jernigan can had in this case was not believe that be do fairly appealed prior controlling the district said to have bad acts.” Under our 404(b) law, ruling. our case- Jernigan court's Rule Under we do not believe has devoted a law, seeking claim or issue party to raise argument discrete his to claims section of prominently appeal plainly must so on acts; regarding his bad the evidence of Otherwise, prop- if issue—even indicate. instead, of this evidence is each mention un- preserved erly at trial —will be considered background to he dertaken as the claims does Greenbriar, City See Ltd. abandoned. expressly is buried within advance or those Alabaster, (11th n. 6 881 F.2d claims. Cir.1989) ("Although refers to the Greenbriar requirement ap an Our that those claims of its district court’s dismissal amendment in pellant appeal on wishes have considered brief, in its of the Case initial its Statement unambiguously demarcated stems from the arguments on the merits elaborates no need to avoid confusion as to the obvious reply Accord in its initial or brief. this issue are play that áre in and those that not. issues waived."); ingly, is deemed Federal the issue Loan, at 373 See Federal Sav. & 813 F.2d n. 3 Haralson, 813 F.2d Corp. Sav. & Loan Ins. (“The appellant requires waiver rule that the Cir.1987) (11th ("[tissues n. 3 that argument to the issues the state address clearly appellant’s designated in the are by appellant desires to have reviewed this (cit normally are deemed abandoned." brief appellant’s brief because Court in the initial Noone, ing 520 n. Rogero v. preparing arguments, ap- an briefs and '[i]n 9 Moore’s Federal Prac pellee rely on content an is entitled to (2d ed.1985))); 228.02[2.-l], 28-7 Ted tice appellant’s scope brief for the issues Corp., der v. F.M.C. ” Pignons de appealed.’ (quoting S.A. Meca Cir.1979) (although in statement of raised is (1st nique Corp., Polaroid sues, by appel claim deemed abandoned Cir.1983))). Unsurprisingly, anywhere lant where it was not addressed 404(b) argu- does not address Rule brief). else in the brief; instead, comprehensively ment in its only Jemigan's contains In this brief arguments are discusses three passing to the evidence ad- four references by extensively squarely briefed Jer- raised and 404(b), each of mitted under Fed.R.Evid. view, is not nigan. our this omission topical which is embedded under different government, product oversight of an First, headings. one minor sub- he entitles nothing in Jerni- but of the fact rather ”[p]rior his of facts section within statement apprized appellee gan’s brief Second, he [ajppellant.” men- [b]ad [a]cts 404(b) appeal. on pursuing claim prejudicial effect of evidence in tions the appeal adjudi- assessing is to an Our task “summary in his ar- last sentence plainly fairly and cate issues that are Third, gument” he "the section. mentions appellee is presented to us and of which the passing in the propensity evidence” in con- notice; issues that put it is not to hunt for argument (alleging error text third of his may may not intended to appellant judgment for a the denial of motion Accordingly, we conclude Jerni- raise. acquittal government's at the close of 404(b) argument case). gan his Rule has abandoned Finally, argu- he concludes that same asserting appeal. "all Government ment 1284 discretion.”) prior subsequent moreover,

(evaluating bad acts for clear abuse framework); (citation precisely omitted), same cert. denied sub nom. — Hurley, 755 F.2d States, Hernandez United U.S. Cir.1985) (“A act, subsequent as well -, S.Ct. 155 L.Ed.2d 231 act, as a can be prior used show intent (2003); Ruiz, United States v. 253 F.3d 404(b).”)- under Rule (11th Cir.2001) (“ ‘A trial court has determining broad discretion in Second, Jernigan not does contest that evidence; admissibility its will Third, ruling he these committed acts. as com- appeal be disturbed on absent an pared with Nelson’s 1996 convic- ” tions, (quoting Zapata, we have concluded abuse of discretion.’ were tem- 1357)); porally Pierce, to the incident F.3d at underlying relevant case, (“We in posses- this 1997 felon 136 F.3d subsequent sion conviction and his posses- review district court’s decision not to February sion on weapons 2000 bore exclude pursuant evidence to Rule 403 for heavily even knowledge more his discretion.”) (citation omitted). an abuse of 15,1998. April found in his wrecker on Tinoco, recently As we explained in “[i]n Moreover, jury the limiting instructions reviewing issues under Rule we ‘look delivered district court with respect at the in a light evidence most favorable to to the inferences that could fairly be admission, its probative its maximizing val appellants’ drawn prior and subse- ue and minimizing prejudicial its undue ” quent Jernigan bad acts benefitted to an impact.’ 304 F.3d at 1120 (quoting Unit equal degree they did Nelson. Accord- Elkins, ed States v. ingly, Jernigan squarely had raised this Cir.1989)). issue appeal, not be would able to did not simply say that the district court abused its dis- inform the gang Nelson was a cretion in permitting the introduction of member, thereby implying that he was a bad acts under Fed.R.Evid. person bad and probably was responsible 404(b). gun’s presence in the cab of the Instead, wrecker. he introduced evidence C. Argument Nelson’s Fed.R.Evid. Í03 Nelson was a particu- member of a Nelson further suggests that the that, lar gang notably, used the color red by rejecting court erred his chal symbol as a membership; gang lenge under Fed.R.Evid. 4039 to Jerni members wrap weapons often their in ban- gan’s gang introduction of Nelson’s mem dannas of their gang’s color. This evi- 404(b) bership. argument, Unlike his Rule dence especially probative this case properly preserved this claim be weapon because the wrapped court, fore the district and as such we a red bandanna. review rejection the court’s of his Rule 403 hand, On challenge for abuse of the other discretion. we do not wish See Tinoco, prejudicial understate the effect that evi- (11th Cir.2002) (“We review the dis dence of a criminal gang defendant’s mem- determinations, trict court’s Rule 403 bership may Indeed, entail. modern provides 9. This Rule jury, that: or delay, considerations undue relevant, time, Although presentation may waste of be exclud- or needless probative ed if its value substantially is out- cumulative evidence. weighed by danger prejudice, of unfair Fed.R.Evid. issues, confusion of the misleading Only if the to admit popularly asso- decision evidence over gangs are American street of criminal behavior a wealth challenge ciated with unsupportable a Rule 403 ills, member- and an individual’s and social fight when is in the the evidence viewed likely to ship organization such an is the supportive say most of decision will jury. in a See antipathy provoke strong constitutes an abuse the decision of Strosnider, Anti-Gang Or- Kim generally Cross, discretion. See United States Chicago City of v. Morales: dinances After (11th Cir.1991) (“[A] F.2d con- Race, Vagueness Doc- The Intersection of will on viction not be overturned the basis trine, Equal Protection the Crimi- and a Rule of violation of 403 absent a clear Law, L.Rev. 105-08 nal 39 Am.Crim. This rule an ex- abuse of discretion. is of the illicit activi- (describing some traordinary remedy which should be used membership and gang ties with associated indeed, and, the trial court’s sparingly, dis- outrage the and specifically noting “public unduly prej- to cretion exclude evidence have political reaction” such activities circumscribed.”) (inter- narrowly udicial is produced). omitted); punctuation nal citations and Rule In the 403 calculus this Finestone, United States v. one, the a close dis in our view Cir.1987) (“The (11th [under ‘balance justified in been trict court would have Rule in favor 403] should struck of way. is this either That to deciding issue ” (quoting admission.’ say, reasonably deter the court could (8th Cir.1980))). Dennis, 625 F.2d gang evidence of Nelson’s mined the the Rule 403 issue in this case Because membership substantially or did not did one, squarely it fell within was such close probative Importantly, its value. outweigh the ambit of the district court’s sound dis- questions these precisely is close cretion, is consequently and Nelson not give rise to the deferential abuse discre tion of review. Inherent standard to claim. entitled relief on this recognition standard is the firm that there evidentiary rulings that turn

are difficult Speedy D. Trial Act Nelson’s Claim uniquely purview matters within court, has ac which first-hand district “We review a claim under physi documentary cess evidence and is to Trial Act de novo and review Speedy cally testifying witnesses and proximate to factual determinations on district court’s reasons, the district jury. For these error.” United excludable time clear uniquely situated to make nuanced is Williams, States judgments questions require the Cir.2002) Miles, States v. (citing United concepts balancing fact-specific careful (11th Cir.2002)). 1348-49 and we probativeness prejudice, like the sound exercise of are loathe disturb Act: Trial Speedy Under these its discretion in areas. See guilty plea in which a not any case Williams, entered, trial of defendant is in a related context that (noting information or indictment charged great “we deference accord an offense shall with the commission of assessment of the evidence because court’s seventy days from the commence within judge’s exposure first-hand to the of the (and making public) of the filing date famil judge’s evidence and because of indictment, or from the information or ability iarity gauge case and with the appeared has before the defendant date on the impact the evidence (citation omitted). trial”) court in which judicial officer of the of the context pending, charge such is whichever date trial speedy clock. For motions that 3161(h)(1)(F) § last occurs. require hearings, ex- cludes all time filing between the 3161(c)(1). 18 U.S.C. motion and the conclusion hearing However, Act also provides for the which is addressed. This entire specified periods exclusion of certain period speedy is excluded from the trial trial speedy time from the calculation. Of subject clock is to review re- particular relevance this case.are sec- garding its Once 3161(h)(1)(F) (J), reasonableness. tions exclude concluded, hearing motion is treat- period seventy-day “delay from the result- motion, ed any exactly from like a motion which ing pretrial from the for no filing through of the motion hearing required. conclusion is If the court has all on, hearing prompt disposi- other necessary materials rule on the mo- of, motion,” tion 18 such U.S.C. tion, the court is deemed to have taken 3161(h)(1)(F), § “delay reasonably at- under motion advisement immedi- any period, not tributable to to exceed ately following hearing days, during any thirty proceeding 3161(h)(l)(J) § permits no more than concerning actually the defendant is under thirty days additional to be excluded. by advisement the court.” 18 U.S.C. 1223, F.2d 935 1228 (citing 3161(h)(l)(J). § explained We the interac- States, 321, Henderson United 476 U.S. tion provisions of these United States v. 327-28, 1871, 1875-77, 106 S.Ct. 90 Davenport: (1986)). L.Ed.2d 299 pretrial require For motions that do not In this trial, trial did speedy until the clock ferred failure of to discover the the defendant of this during pendency run the entire a lack due not evidence was not due to 3161(h)(1)(F); (3) merely § is diligence, the evidence not motion. See 18 U.S.C. (4) evi- impeaching, cumulative or the 936 F.2d Phillips, States v. United Cir.1991) (“Motions the (11th dence is material to issues before necessitat- 1254 court, is that a and the evidence such hearings hearings, ing suppression such probably produce trial a dif- new would 3161(h)(1)(F). governed ... are section ferent result. such, fifing time from As entire hearing (11th of the

the motion to the conclusion F.3d 1336 n. 1 179 excludable, hearing is even when 122 F.3d (citing is States v. United Schlei Cir.1997)). (11th Indeed, trial.”)(citing United States we have until 991 deferred (11th Garcia, highly that for a new trial are F.2d 1562 Cir. held motions v. 778 disfavored, that district courts “should 1986) Mastrangelo, trial ‘great granting new (11th Cir.1984)); use caution’ see also F.2d evi newly discovered motion based Beard, 1486, 1488 41 F.3d Garcia, dence.” United States (11th Cir.1995) (recognizing that a district (quoting United hearing defer a motion decision to court’s Johnson, intervening until trial does not render Cir.1983)). non-excludable time 3161(h)(1)(F)). Thus, § more than 30 no In bases this days between Nel- Mi elapsed claim on newly-discovered non-excludable evidence trial, no told arraignment and his that Nelson son’s statement chael West’s (Nelson) owned the Trial Act him that he Speedy of the occurred violation placed he Jernigan’s truck and that had case. this " evi- government can do without such explained is the We in Pollock that '[i]t should; dence, but if that it is to fairness dictates probity of the evidence that incremental obtain a convic- is essential to against potential undue evidence balanced its tion, Thus, may like a in. This seem may has a it come prejudice.... if Government issue, win; proposition, it you but I tails lose’ the extrinsic ‘heads strong case on the intent presently law.” 926 F.2d at consequently will may little is add offense 914). Beechum, words, (quoting readily.’ other if more In be excluded however, cushions. We problem it between seat assume The for Jernigan, prongs prong, first and second the test the third he because has failed to satisfied, i.e., are requisite showing set forth above that make the that West’s genuinely statement was trustworthy. West’s discovered statement was in fact In- deed, only after trial and that failure to presented evidence at trial of it did not from a learn earlier stem lack that alleged was consistent with Nelson’s diligence. also will self-inculpatory assume without statement was the fact deciding that this evidence was non-eumu- weapon wrapped was in a red and that would been lative have materi- bandanna and physically proximate However, al. are confident that seat in By Nelson’s the truck’s cab. con- trast, not did abuse its discretion in the statement was contradicted concluding probable is not all government’s inculpat- produced would testimony Moreover, West’s ing Jernigan. the district different result. This is so because West’s court is “entitled to consider the fact that unquestionably statement was hearsay, person proffering [the testimony is] overwhelmingly likely and it is prison inmate in determining whether his statement was inadmissible under the ex- testimony trustworthy.” would be ception hearsay to the rule set forth in Gossett, States v. 804(b)(3).

Fed.R.Evid. Cir.1989). vein, only West incarcerated when he allegedly bore 804(b)(3) plainly provides Rule that “[a] witness self-inculpatory Nelson’s state- tending expose statement the declarant ments, but also he had a lengthy histo- liability to criminal and offered to excul- ry felony convictions, including two for- pate is not the accused admissible unless gery offenses which bore on his character corroborating clearly circumstances indi- truthfulness; (2) for awaiting was then cate the trustworthiness of the statement.” trial writing for threatening to an 804(b)(3). letter Fed.R.Evid. We have interpret- individual the Middle District Geor- ed this Rule to a three-prong “establish[ ] (he gia notified the district court of Nel- test for the admission of statements alleged son’s (1) statements via letter in against this interest criminal cases: case); (3) unavailable; (2) and had been diagnosed with declarant must be psychological against problems. statement must be held the declarant’s (3) trustworthiness, that “in penal interest; determining corroborating and cir- clearly court [district] cumstances must indicate the should determine what trust- possibility was that worthiness statement.” United declarant fabricat- Thomas, (11th 62 ed words, F.3d In States 1337 statement. other it Cir.1995) (citation omitted). Here, unlikely, must judging be from the cir- satisfied, cumstances, test first of this is prong as Nel- that the statement was fabri- son Fifth right exercised his Amendment cated” if we are to deem the third prong (“Because testify 804(b)(3) not to at trial. See id. of the Rule test satisfied. Unit- Fifth they invoked their Amendment privi- Gomez, ed States v. silent, (11th

lege Cir.1991) remain it is clear that (citing McCoys (citing Thomas, (5th were unavailable.” Cir.1978)). United 571 F.2d 285 Hendrieth, States v. 922 F.2d 750 When all of the circumstances surround- (11th Cir.1991))). The second prong ing West’s statement are viewed con- well, cert, satisfied as since alleged Nelson’s it plain seems to us that the district statements, face, taken their were self- court not did abuse its discretion con- inculpatory. cluding that it reasonably likely Brazel, 102 only plain error. See F.3d alleged fabricated Nelson’s had West reiterate, n. statement, Fed.R.Evid. 1151 & 1151 21. To at 804(b)(3)’s trustworthi- indic[ia of] “clear standard “must show that: (2) consequently (1) was unsatis- occurred; ness” standard an the error was error fied this case. rights; it his substantial plain; affected seriously affected the fairness of probably testimony West’s Because Gresham, 325 judicial proceedings.” under Fed. have been inadmissible would (citation omitted). at 1265 F.3d 804(b)(3), testimony is unlike- R.Evid. a different result ly generated to have however, plain Importantly, even Jernigan fails the fifth Accordingly, trial. is unavailable in cases where error review supra, forth of the test set prong “invites” the constitu a criminal defendant did its discretion court not abuse complains. of which he See tional error relief that he is entitled no concluding Garcia, ex Estate Ford v. Ford rel. claim. newly-discovered (11th (“Where Cir.2002) F.3d conclusion, Nor, dis- did the given this exists, precludes invited error by refusing to conduct trict court err rule ‘invoking plain error claim. evidentiary hearing on this See ” reversing.’ (quoting United States v. L’Hoste, 693, 696 F.2d Cir.1971))), Davis, 564-65 (“Even if it assumed that be denied 537 t. U.S. cer a new trial hearing a motion for [on (2003). L.Ed.2d 849 S.Ct. newly-discovered may evidence] based on of a district court’s decision to context cases, the in some such appropriate “ evidence, accepted certain ‘[t]he admit require present case do facts of the injection alleged rule is that where the one, nothing having alleged by been is attributable to inadmissible evidence ly support that would the admissibil- L’Hoste defense, introduction the action of its statement.”). ity ” not constitute reversible error.’ does Martinez, States v. Jemigan’s F. “Admission of Co-Defen- (quoting United 366 Argu- Hearsay Statements” dant’s (5th Doran, 564 F.2d 1177 Cir. v. ment Parikh, 1971)); also United States v. see argues court Jernigan that the district (holding Nel by allowing erred the introduction of out. of court state that “the admission of pre- to post-arrest son’s statements witness, when by re ments implicating Jernigan. police Macon officers counsel, inquiry by defense to an sponding says prohibition He violated the ”); error’ United States creates ‘invited Bru by Supreme Court in announced Parias, n. 805 F.2d De into admitting ton Cir.1986) (“When defen [one counsel joint in a trial one defendant’s attempted [a to cross-examine wit dant] facially inculpates hearsay confession murder, coun concerning the Texas ness] co-defendant, as the admission of objected doing to his for Ramirez so. sel to rights violates the secured confession precludes of invited error The doctrine under the Sixth Amend co-defendant complaining now because Ramirez from ment’s Clause. See 391 Confrontation request.”), overruled court followed his 1620, 1622, 123, 126, U.S. 88 S.Ct. Kap (1968). grounds on other Jernigan L.Ed.2d 476 Because lan, 1356-57 Cir. object to this evidence in failed to 1999). court, may review its admission we case, Jernigan In this did more relief both because he and his counsel object fail to to the simply orally than introduc in open proceed consented to statements —he tion of Nelson’s affirma eleven-person thereby with an jury and to tively stipulated their admission. The the alleged invited error of which he now exchange proceeded relevant as follows: (citation Parikh, complains.”) omitted); Attorney: (“Defense The Assistant United States F.2d at counsel effec- we to an Judge, worked out—came tively injury caused the about which he agreement yesterday govern complains by questioning now the witness just play in its tapes ment case will letter.”). about the contents of the This is totally way from start to finish. That say that had not consented piecemeal, have to won’t do tapes’ to the tapes introduction the neces- might one of the defendants want sarily would been have inadmissible —in- play piece later. deed, we no express opinion as to the Okay. The court: underlying merits Bruton claim— The Attorney: Assistant United States merely say but that a criminal defen- So, recall, as I there’s about 81 or 32 affirmative, may dant not make an appar- on one tape approximately minutes ently strategic decision at trial and then 10 to 15 minutes on another. complain on appeal that the result of that Okay. agree- everybody The court: Is decision constitutes reversible error. This able to that? precisely the situation that the invited Yes, for Jernigan: Counsel Your Honor. avert, error doctrine seeks to and in this Yes, for Nelson: sir. precludes Counsel case the doctrine Jernigan from asserting as error under Bruton the Okay. The court: intro- duction of Nelson’s hearsay statements. by affirmatively Simply put, agreeing to sum, we conclude playing tapes, Jernigan appel- effec- that none of caused, i.e., invited, tively meritorious, any appeal er- lants’ claims Bruton are ror jury’s that resulted hearing accordingly we affirm their convictions Indeed, them. we and other courts of respects. in all appeals applied invited error doc- AFFIRMED. trine in factual circumstances that are closely analogous presented to those here. FULLAM, Judge, District concurring: Ross, See United States v. I reluctantly concur in result (11th Cir.1997) (“The court’s decision because, majority reached although to deny prosecutor’s request that the I am appellant convinced neither re- given indictment be to the was based trial, fundamentally ceived a fair it appears on the stipulation counsel that the in- circuit, under controlling precedent in this given dictment jury. should be to the that relief cannot be afforded this direct Thus, any error in failing give to the in- appeal, but must await collateral attack via invited.”) jury (empha- dictment to the §a 2255 motion. added); Treadway, sis United States In the circumstances of this it Fed. Appx. 2001 WL 1658859 should have been prosecu- obvious to the (“Treadway argues that the dis- tion as well as defense that appel- counsel comply trict failed to with Federal 23(b) fairly lants could not be tried in a single Rule of Criminal Procedure when it trial, since juror excused a and allowed the to their defenses antagonis- case were tried an eleven-person jury. Trying to con- tic. both men together enabled the Treadway clude that any is not government entitled to to use the out-of-court state- co-defendant, acts” this case was to other “bad the to convict of each ment or cross-examina that were suggest unsavory confrontation the defendants without tion, of their constitution plain violation pro- characters who had demonstrated a States, Bruton v. United rights al pensity possession purpose for firearm —a 20 L.Ed.2d S.Ct. 391 U.S. by prohibited is Rule squarely which (1968). But, although S.Ct. 404(b). however, recognize, I that there trials, neither separate sought appellants reported in this Circuit which are decisions the denial of severance. appealed has assume, my colleagues to as do of the seem seems, And, as it trial counsel strange majority, gun possession that evidence of stipulate to the prevailed upon to were may prove on one be relevant to occasion the which vio statements admissibility possession entirely on an different Thus, the issue of lated Bruton principles. remains, how- question occasion. The still us, and the Bruton joint trial not before is ever, probative the force of such whether invited error which constitutes violation outweigh is to the obvi- evidence sufficient this Panel. Unit by be addressed cannot prejudice ous to defendant entails. Parikh, F.2d 688 ed States may, Be all Nelson appellant that as Parias, v. De Cir.1988); trial, object did not to evidence (11th Cir.1986). error”; “plain limited to arguing appel- is appellants, As to both Jernigan has not raised the on lant issue (and of prior evidence introduced extensive produced himself appeal; acts,” admissibility subsequent) “bad It gang membership. evidence Nelson’s by of Evi- governed is Federal Rule arguable is therefore at least neither 404(b). view, my In of this none dence ruling is to a appellant entitled Al- have been received. evidence should judge his discretion. trial abused I that the Eleventh Cir- though recognize by majority have sub- cuit cases cited me, egregious most error with For 404(b)’s stantially prohibition Rule eroded 404(b) to respect issues one which character of assaults on defendant’s appel- either has not been addressed to commit a crime of the propensity show lant, namely, prosecutor’s closing argu- charged, many I note that of the cited type relatively subject. on In his ment admitted cross- cases involved evidence on prosecutor ex- closing argument, brief impeachment, purposes examination the defendants horted the to convict crimes, where similarities “pattern” their demonstrat- previous because crimes identify the defendant as style tended to for the law. Some exam- their disdain ed having committed crime trial. ples: case, I present the circumstances shown “But what has suggest Jer- mind-boggling find it Randy this case? The defendants Jerni- rifle ownership of semi-automatic nigan’s contempt have gan Wendell February 2000 tends his house They contempt for the for the law. handgun about a he knew prove which we have regulations by rules years of the tow truck two behind seat know society. We orderly earlier, 1998, or that the vari- April videotape. what we have heard on appellants other instances which ous stipulations that know that their possessed proximity or were in close either have and can’t they’re convicted felons earlier, kinds, years weapons various through their guns. We know any meaningful light on the issues sheds and their law enforcement view, contact with my being in this case. tried actions. significance of only possible ... speak louder than words

“Actions NURSERY, Pena, GREEN LEAF Gus they get “... And then when to [Jerni- Plaintiffs-Counter-Defendants- day, got gan’s] house later that he’s Appellants, long high-capacity semi-automatic SK5 magazine rifle in his closet. knows He just have it —but he has it.

he can’t E.I. DE DUPONT AND NEMOURS COMPANY, Corporation, a Delaware Nelson, “Now, Wendell in a he’s Defendant-Counter-Claimant-Appel car, handguns two the front seat lee. in the seat shotgun. and he’s back with a got pled You’ve that conviction. He 01-13345, Nos. 01-15693. guilty ... Appeals, United States Court of “So, felons, here we two convicted Eleventh Circuit. believe,

who we know we can’t who Aug. make self-serving statements out there scene, at the who have a ... propensity

a common having theme of wher- they

ever are ...”

I do not believe the should be

permitted now to argue the evidence any purpose

was admitted for than other

propensity.

Unfortunately appellants, for the howev-

er, lodged any objection neither to the

prosecutor’s argument time, closing at the appellant

and neither has raised the issue

on appeal. view, above,

In my as stated neither

appellant received fundamentally fair tri- Speaking

al. I myself, prefer would

grant trials, but, appellants new given appellate authority limitations of review, reluctantly

direct I concur in the

judgment. Nelson notes correctly 3161(H)(1)(F) hearings, § excludes speedy began running trial clock for required “prompt disposition” time 29, 2000, March the date of arraign- The length motion. the exclu- 21, 2000, ment. April On upon depends sion when the court takes filed document that it labeled a “motion” the motion “under pur- advisement” for notified which it Nelson of its intent to 3161(h)(l)(J). poses §of If the court introduce at trial evidence of his has all the information necessary rule 404(b). convictions under Fed.R.Evid. on the motion at the time the motion is filed, later, immediately the court week responded by has the mo- One fil- tion under advisement under ing a motion limine to exclude such 3161(h)(l)(J) § days and thirty may be Although evidence. neither of these mo- speedy excluded from the trial clock due upon trial, tions were acted until the dis- to the may motion. The court establish trict court ruled that the entire time from period filed, time after the motion is April through 2000 November however, which parties within may sub- 3161(h)(1)(F) § was excludable under be- relating mit materials to the motion. hearing cause a required was gov- on the The motion is not by under advisement ernment’s motion. during time, the court period Whether or not government’s automatically which is excluded from the April filing was a motion that speedy trial clock and not subject to a required hearing and tolled the speedy requirement. reasonableness Once the 3161(h)(1)(F), § clock trial there can period for filing additional ex- materials question be little that Nelson’s motion in pires, the court takes the motion under Indeed, limine required hearing. advisement for one purposes 3161(h)(l)(J) § 404(b) and no thirty primary components more than of the Rule days additional may be excluded strength govern- calculus is the Jernigan’s Newly-Discovered Evi- evidence, Pol E. United States v. see merit’s (11th Cir.1991),10 dence Claim lock, properly be plainly cannot a matter that denial of a motion review In more until the trial itself. ascertained newly a new trial based on discovered said, terms, probative general evidence for abuse of discretion. See comprise the prejudice ness Hansen, —which fact- Miller test —are prong of the third (11th Cir.2001) (citing Cir.1999)), can inquiries that and context-intensive Pistone, made only competently rt. denied 535 U.S. ce assessing (2002). hand the evi- upon first court As we 153 L.Ed.2d 158 S.Ct. Accord- parties. presented dence observed States v. Ramos-. justified amply the district ingly, a motion for new trial To succeed on despite the fact concluding that evidence, the newly discovered based motion limine hearing on Nelson’s evi- movant must establish 404(b) de- the Rule evidence was trial, exclude dence discovered after

Case Details

Case Name: United States v. Jernigan

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 15, 2003

Citation: 341 F.3d 1273

Docket Number: 00-16199

Court Abbreviation: 11th Cir.