Eleventh Circuit Notes Split Re Standard of Review for a District Court's Denial of a Franks Hearing

Per U.S. v. Sarras, --- F.3d ----, 2009 WL 2176643 (11th Cir. July 23, 2009):

Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. We have not stated a precise standard of review for a district court's denial of a Franks hearing, and other circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006) (internal citations omitted) (concluding that “[because] ... the more exacting de novo standard of review is satisfied here, we need not address the issue further.” (quotation marks omitted)). As in Arbolaez, we need not decide which standard of review to apply, as we discern no error under even a de novo standard of review.

Seventh Circuit Notes Split Re Whether Verbal Complaints Are Protected Activity under the FLSA

Per Kasten v. Saint-Gobain Performance Plastics Corp., --- F.3d ----, 2009 WL 1838291 (7th Cir. June 29, 2009):

The next question pertinent to this appeal is whether unwritten, purely verbal complaints are protected activity under the statute.

Again, we start with the language of the statute. Sapperstein, 188 F.3d at 857. The FLSA's retaliation provision prohibits “discharg[ing] ... any employee because such employee has filed any complaint....” 29 U.S.C. § 215(a)(3) (emphasis added). . . . Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity. The use of the verb “to file” connotes the use of a writing.

. . .

Other circuit courts that have tackled this issue are split. The Fourth Circuit found that verbal complaints were not protected activity in Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.2000). The court recognized that the FLSA's “statutory language clearly places limits on the range of retaliation proscribed by the act.” Specifically, in interpreting the “testimony” clause of the FLSA's retaliation provision, the Fourth Circuit held that the FLSA “prohibits retaliation for testimony given or about to be given but not for an employee's voicing of a position on working conditions in opposition to an employer.” Id. (emphasis added). Although the Fourth Circuit acknowledged that the retaliation in that case-which followed an employee's statement to the company president that, if he were deposed in a lawsuit, he would not testify to the president's suggested version of events-was “morally unacceptable,” the court concluded that a faithful interpretation of the statute did not recognize mere statements to a supervisor as a protected activity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993) (“The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.”) (citations omitted).

Other courts have found oral complaints to be protected activity, but it is difficult to draw guidance from these decisions because many of them do not specifically state whether the complaint in question was written or purely verbal, and none discusses the statute's use of the verb “to file” and whether it requires a writing. See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992) (holding, without discussion of the verbal/written distinction, that plaintiff's apparently oral complaints to supervisors were protected activity); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (holding, without discussion of the verbal/written distinction, that plaintiffs' oral complaints were protected activity); Brock v. Richardson, 812 F.2d 121, 125 (8th Cir.1987) (holding, without discussion of the verbal/written distinction, that defendant's mistaken belief that plaintiff had made apparently oral complaints to supervisors was grounds for suit); Brennan v. Maxey's Yamaha, 513 F.2d 179, 183 (8th Cir.1975) (holding, without discussion of the verbal/written distinction, that employee's “voicing” of concern was protected activity).

Eleventh Circuit Notes Split Re Standard of Review for a District Court's Denial of a Franks Hearing

Per U.S. v. Sarras, --- F.3d ----, 2009 WL 1661152 (11th Cir. June 16, 2009):

Sarras moved to suppress the evidence seized from his Tweed residence, alleging that (1) Ortiz's affidavit contained deliberate and material falsehoods and omissions and (2) a Franks hearing was required.^FN5

FN5. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676 (1978) (instructing that where a defendant makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in [a] warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request”).

. . .

Sarras contends that the district court abused its discretion by denying his motion to suppress evidence without first conducting a Franks hearing.^FN37

FN37. “Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. We have not stated a precise standard of review for a district court's denial of a Franks hearing, and other circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006) (internal citations omitted) (concluding that “[because] ... the more exacting de novo standard of review is satisfied here, we need not address the issue further.” (quotation marks omitted)). As in Arbolaez, we need not decide which standard of review to apply, as we discern no error under even a de novo standard of review. See United States v. Kapordelis, No. 07-14499, 2009 WL 1508342, at *19-20 (11th Cir. June 1, 2009) (same).

Fourth Circuit Concludes that § 2515 Does not Permit a Clean Hands Exception to Its Exclusionary Rule

Per U.S. v. Crabtree, 565 F.3d 887 (4th Cir. May 19, 2009):

Whether § 2515 should be understood as containing a “clean hands” exception to its exclusionary rule is an issue that has divided the circuits. The Sixth Circuit has concluded that § 2515 does not preclude the government in a criminal prosecution from introducing evidence of a recording made in violation of Title III if the government had no involvement in the illegal interception, see United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir.1995), while the First, Third, and Ninth Circuits have refused to read such a clean-hands exception into § 2515, see Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir.1997); In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir.1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir.1987). We agree with the majority and conclude that § 2515 does not permit an exception to its exclusionary rule in cases where the government was not involved in illegal interception.

In our view, the issue is resolved by the language of § 2515 itself. Section 2515 states, in its entirety, that

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

18 U.S.C.A. § 2515. The statute seems to clearly and unambiguously prohibit the use in court of improperly intercepted communications; we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception.

M.D. Alabama Notes Split Re whether Eyewitness-Identification Expert Testimony Violates FRE 403

Per U.S. v. Smith, --- F.Supp.2d ----, 2009 WL 1444446 (M.D.Ala. May 26, 2009)

The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate [Federal Evidence] Rule 403, and other circuits have split on this question. The Second, Seventh, and Eighth Circuits have reasoned that eyewitness-identification expert testimony might usurp the jury's role of determining witness credibility, thus causing jurors to be confused and misled regarding their role as the trier of fact. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (holding a district court was within its discretion to exclude an expert who “would effectively have inserted his own view of the officers' credibility for that of the jurors, thereby usurping their role”); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996) (applying a deferential standard to conclude that “the district court properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it to substitute the expert's credibility assessment for its own”); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992) (“the district court's decision to exclude Dr. Loftus' testimony was a proper exercise of its discretion, whether under Rule 702 or Rule 403.”); but cf. United States v. Gallardo, 497 F.3d 727, 733 (7th Cir.2007) (holding that expert testimony on effect of drug abuse on witness memory would “intrude upon the jury's role in assessing witness credibility” only because the defendant had not put forth any evidence to show that the witnesses actually used drugs and that, thus, there was no “factual link” between the expert's testimony and the specific witnesses).

Similarly, in United States v. Rincon, 28 F.3d 921, 923-26 (9th Cir.1994), appellate court affirmed a district court's decision to exclude an eyewitness-identification expert under Rules 403 and 702. The court cautioned, though, that the opinion represents an “individualized inquiry” that “does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon ‘scientific knowledge’ which is both reliable and helpful to the jury in any given case.” Id. at 926.

In contrast, the Third and Sixth Circuits have ruled that eyewitness-identification expert testimony comports with Rule 403. In United States v. Mathis, 264 F.3d 321, 339-40 (3rd Cir.2001), the court reversed a district court's decision to exclude eyewitness testimony based on Rules 403 and 702. Judge Pollack explained that eyewitness-identification experts who employ “reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away.” Id. at 340. The Sixth Circuit has likewise concluded that a trial court erred in excluding an eyewitness-identification expert under Rule 403, but held that the error was harmless. United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); see also Smithers, 212 F.3d at 316 (finding that eyewitness-identification expert testimony did not violate Rule 403's prohibition against evidence that invites unjustified “delay”).

Eleventh Circuit Notes Split Re Relevance of Subjective Intent to Lability under the National Firearms Act

Per U.S. v. Spoerke, --- F.3d ----, 2009 WL 1423919 (11th Cir. May 22, 2009):

Spoerke asserts that the pipe bombs were intended for social enjoyment, he detonated them only underwater, and he enjoyed the concussion of the device when detonated. Our sister circuits are split over whether the court should consider the subjective intent of the defendant when determining whether the device was designed as a weapon. Compare United States v. Oba, 448 F.2d 892, 894 (9th Cir.1971) (considering the defendant's subjective intent), with United States v. Posnjak, 457 F.2d 1110, 1118-20 (2d Cir.1972) (applying an objective standard to determine whether the device falls within the reach of the Firearms Act), and United States v. Johnson, 152 F.3d 618, 628 (7th Cir.1998) (adopting a mixed standard). Although the district court instructed the jury on the mixed standard, we decline to adopt a standard because the evidence of Spoerke's intent, under any standard, is sufficient to sustain his conviction.

Second Circuit Notes Split Re Sentencing under Criminal Rule 11(c)(1)(C) and Recourse to Resentencing

Per U.S. v. Walker, Slip Copy, 2009 WL 983031 (2d Cir. Apr. 14, 2009):

As the Government correctly notes in its 28(j) letter, there is currently a circuit split on the legal issue of whether defendants sentenced under Federal Rule of Criminal Procedure Rule 11(c)(1)(C) plea agreements may ever have recourse to resentencing pursuant to § 3582(c)(2). We need not resolve this issue for our Circuit today, however, because the district court in this case provided sufficient justification for its determination that it would not resentence Walker even if given the opportunity.