Several months ago, we reported on a case in which a Florida court ruled that in order to take advantage of a change in the law, a party must first make the proper objection at trial.  In other words – trial lawyers were expected to be fortune tellers.  In a decision rendered recently by the 11th Circuit Court of Appeals, the court addressed this issue in the context of appellate briefing.

In United States v. Durham, Nos. 14-12198 & 14-12807, 2015 WL 4637900 (11th Cir. Aug. 5, 2015), the defendant in a criminal case was convicted of several crimes and was determined to be an armed career criminal under section 18 U.S.C. § 924(e), also known as the Armed Career Criminal Act (“ACCA”).  In defendant’s initial brief on appeal, he challenged his sentence as being unreasonable,  but he did not raise the applicability of the ACCA.  While the case was pending, the U.S. Supreme Court requested supplemental briefing on the issue as to whether a portion of the Act was unconstitutionally vague. The government did not mention the ACCA in its answer brief, and the defendant did not file a reply brief. Several months later, the defendant asked for a stay pending the Supreme Court decision and for leave to file supplemental briefing once that decision was rendered. Thereafter, the Supreme Court found a portion of the Act to be unconstitutional.

In an en banc decision, the 11th Circuit changed its long standing rule to the effect that an appellant who does not raise an issue in an opening brief may not do so in his reply. Instead, it held that “where there is an intervening decision of the Supreme Court that overrules either a decision of that Court or a published decision of the Court that was on the books when appellant’s opening brief was filed, and that provides the appellant with a new claim or theory, the appellant will be allowed to raise that new claim or theory in a supplemental or substitute brief provided he does so in a timely fashion …” Id. at *1.

Tip: The Eleventh Circuit was quick to point out that its decision was limited to the circumstances of that case and thus, counsel must remain vigilant in keeping an eye on cases that might impact his or her case. Thus, for example, if a Supreme Court case was decided in time to be included in briefing, counsel will be required to do so or waive that argument. As such, the importance of monitoring cases that might affect counsel’s case cannot be overstated.