Opposition Brief — Mark Todd Minor, Petitioner v. Florida

No. 24-7489

IN THE

SUPREME COURT OF THE UNITED STATES

MARK TODD MINOR,

v.

STATE OF FLORIDA.

____________________

Petitioner,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA DISTRICT COURT OF APPEAL,

FOURTH DISTRICT

____________________

BRIEF IN OPPOSITION

____________________

JAMES UTHMEIER

ATTORNEY GENERAL

OF FLORIDA

Tallahassee, Florida

CELIA TERENZIO

Bureau Chief, Criminal Appeals

MELYNDA L. MELEAR

Senior Assistant Attorney General

Office of the Attorney General

State of Florida

1515 N. Flagler Drive, Suite 900

West Palm Beach, FL 33401

Tel: (561) 837-5016

crimappwpb@myfloridalegal.com

Counsel for Respondent

QUESTIONS PRESENTED

I.

For a description of the place to be searched in a search warrant to meet the

particularity requirement of the Fourth Amendment, it is sufficient if the description

allows the officer, with reasonable effort, to ascertain and identify the place intended.

Maryland v. Garrison, 480 U.S. 79, 88 (1987); Steele v. United States, 267 U.S. 498,

503 (1925) (citations omitted). The question presented is whether the warrant was

sufficiently particular by way of the address and photograph of the location to allow

the officers to ascertain and identify the target residence.

II.

When a private citizen has already conducted a search of property, the

reasonableness of a subsequent government search of the same property is measured

by the degree to which the search exceeded the scope of the private search. United

States v. Jacobsen, 466 U.S. 109, 115 (1984). The question presented is whether law

enforcement exceeded the scope of the searches previously conducted by a Facebook

employee of the same images.

III.

More than half a century ago, this Court held that Florida’s use of six-person

juries satisfies the Sixth Amendment. Williams v. Florida, 399 U.S. 78, 86 (1970).

After examining the history and purpose of the right to trial by jury, the Court

concluded that the framers enshrined no twelve-juror requirement in the

Constitution, even though most founding-era juries consisted of twelve persons.

ii

Relying on Williams, Florida and five other states continue to use fewer than twelve

jurors in at least some criminal trials. In Florida, where all noncapital crimes are

tried before six-member juries, roughly 5,000 criminal convictions are currently

pending on direct appeal.

As in Guzman v. Florida, 144 S. Ct. 2595 (2024), the question presented is

whether the Court should overrule Williams and hold that the Sixth Amendment

requires the use of twelve-person juries in serious criminal cases.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................................................................................... ii

STATEMENT OF THE CASE........................................................................................................1

REASONS FOR DENYING THE PETITION................................................................................5

I.

THE WARRANT MET THE PARTICULARITY REQUIREMENT OF

THE FOURTH AMENDMENT BECAUSE THE EXECUTING

OFFICERS WERE ABLE TO ASCERTAIN AND LOCATE THE

PLACE TO BE SEARCHED. .................................................................................5

II.

THE DETECTIVE’S VIEWING OF THE IMAGES DID NOT EXCEED

HE SCOPE OF THE PRIOR VIEWING OF THE SAME IMAGES BY A

FACEBOOK EMPLOYEE BEFORE HASH VALUES WERE

ASSIGNED TO THE IMAGES. .............................................................................8

III.

SIMILAR TO GUZMAN V. FLORIDA, 144 S. CT. 2595 (2024), THIS

CASE DOES NOT WARRANT REVIEW. ..........................................................13

A.

The Court Should Reject Petitioner’s Invitation to Reconsider and

Overrule Williams. .....................................................................................13

B.

This Case is a Poor Vehicle. ......................................................................26

CONCLUSION ..............................................................................................................................28

iv

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) ..................................................................... 17

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................... 20

Ballew v. Georgia, 435 U.S. 223 (1978)................................................................. 18, 21

Brady v. Maryland, 373 U.S. 83 (1963) ...................................................................... 20

Chafin v. Chafin, 568 U.S. 165 (2013) ........................................................................ 26

Chapman v. California, 386 U.S. 18 (1967)................................................................ 26

Colgrove v. Battin, 413 U.S. 149 (1973) .......................................................... 18, 19, 26

Collins v. Youngblood, 497 U.S. 37 (1990) ............................................................ 19, 21

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022)................................ 15

Gideon v. Wainwright, 372 U.S. 335 (1963)................................................................ 20

Griffin v. California, 380 U.S. 609 (1965)................................................................... 20

Groh v. Ramirez, 540 U.S. 551 (2004) ........................................................................... 7

Guzman v. Florida, 144 S. Ct. 2595 (2024) ...................................................... iii, iv, 13

Hurst v. Florida, 577 U.S. 92 (2016) ........................................................................... 28

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448

(2018) .................................................................................................................. 14, 21

Khorrami v. Arizona, 143 S. Ct. 22 (2022). ............................................... 16, 20, 22, 24

Lockhart v. McCree, 476 U.S. 162 (1986) .................................................................... 24

Ludwig v. Massachusetts, 427 U.S. 618 (1976) .......................................................... 19

Maryland v. Garrison, 480 U.S. 79 (1987) ............................................................ ii, 5, 6

Miranda v. Arizona, 384 U.S. 436 (1966) ................................................................... 20

Morales v. State, 274 So. 3d 1213 (Fla. 1st DCA 2019) .............................................. 13

Neder v. U.S., 527 U.S. 1 (1999) ...................................................................... 26, 27, 28

Ohio v. Robinette, 519 U.S. 33 (1996) ........................................................................... 5

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) ....................................... 14, 17, 18, 19, 25

Roper v. Simmons, 543 U.S. 551 (2005) ...................................................................... 20

Steele v. United States, 267 U.S. 498 (1925) ............................................................. ii, 5

Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 20

Taylor v. Louisiana, 419 U.S. 522 (1975) ................................................................... 19

U.S. v. Gaudin, 515 U.S. 506 (1995) ........................................................................... 19

United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) ...................................... 10

United States v. Burke, 784 F.2d 1090 (11h Cir. 1986) ................................................ 6

United States v. Dancy, 947 F.2d 1232 (5th Cir. 1991) ................................................ 6

United States v. Hutchings, 127 F.3d 1255 (10th Cir. 1997) ....................................... 6

United States v. Jacobsen, 466 U.S. 109 (1984)............................................ ii, 9, 11, 12

United States v. Kirtdoll, 101 F.4th 454 (6th Cir. 2024) .............................................. 6

United States v. Larman, 547 F. App’x 475 (Fla. 5th Cir. 2013) ............................... 10

United States v. Maher, 120 F.4th 297 (2d Cir. 2024).......................................... 12, 13

United States v. Meals, 21 F.4th 903 (5th Cir. 2021) ................................................. 10

United States v. Miller, 982 F.3d 412 (6th Cir. 2019) .......................................... 10, 11

v

United States v. Occhipinti, 998 F. 2d 791 (10th Cir. 1993) ........................................ 6

United States v. Reddick, 900 F.3d 636 (5th Cir. 2018) ............................................. 10

United States v. Simpson, 904 F. 2d 607 (11th Cir. 1990) ......................................... 12

United States v. Thomas, 263 F.3d 805 (8th 2001) ...................................................... 8

United States v. Watson, 498 F.3d 429 (6th Cir .2007) ................................................ 7

Wallen v. State, 984 So. 2d 655 (Fla. 1st DCA 2008).................................................... 9

Walter v. United States, 447 U.S. 649 (1980)........................................................ 11, 12

Washington v. Recuenco, 548 U.S. 212 (2006) ............................................................ 28

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) ................................................. 26, 27

Weeks v. U.S., 232 U.S. 383 (1914).............................................................................. 20

Williams v. Florida, 399 U.S. 78 (1970).................. ii, 13, 14, 15, 16, 17, 18, 19, 20, 24

Statutes

Fla. Const. art. I, § 22 .................................................................................................. 25

Rules

Fed. R. Civ. P. 48(a) ..................................................................................................... 26

Other Authorities

1 Annals of Cong. 452 .................................................................................................. 16

Accuracy of Verdicts Under Different Jury Sizes and Voting Rules, 28 Sup. Ct. Econ.

Rev. 221 (2020) ......................................................................................................... 22

Better by the Dozen: Bringing Back the Twelve-Person Civil Jury, 104 Judicature 46

(2020) ........................................................................................................................ 26

Jury Size and the Free Rider Problem, 19 J.L. Econ. & Org. 24 (2003) .................... 21

Jury Size and the Hung-Jury Paradox, 42 J. Legal Stud. 399 (2013) ....................... 22

The Freehold Qualification of Jurors, 29 Am. L. Reg. 436 (1881) ............................. 16

vi

STATEMENT OF THE CASE

Detective Brian Pherson of the internet crimes task force for the Palm Beach

County Sheriff’s Office received a cyber tip on November 2, 2020, from the National

Center for Missing and Exploited Children (NCMEC) (R. 782–785). The tip indicated

that files containing child pornography had been uploaded from a specific Facebook

account associated with the email address markminor69@gmail.com (R. 349, 790).

NCMEC also provided the birthdate, email addresses, phone number and IP

addresses of petitioner Mark Minor (R. 790). Shortly after this cyber tip, Detective

Pherson received a second cyber tip from NCMEC originating from Facebook with

Minor’s name and the same information (R. 795).

Detective Pherson subpoenaed records and received confirmation that the

phone number, Gmail account, and Yahoo email belonged to Minor (R. 791–792). He

looked up Minor in the driver’s license database to determine his address and

confirmed through surveillance that Minor resided at that address by observing

Minor at the residence and learning that the vehicle and boat at the address were

registered to Minor (R. 797–799).

Facebook flagged the child pornography after hash value matches to the

images were automatically detected (R. 795–796). Detective Pherson explained that

a hash value is a series of letters or numbers that uniquely identify a specific file (R.

786–787). The hash value is associated with an image previously identified as known

child pornography in Facebook’s system (R. 796).

1

NCMEC also keeps a log of files with hash values so that anytime a file with a

unique identifier is uploaded, a hash match occurs (R. 787). The reported images are

attached to the cyber tip (R. 796).

Detective Pherson applied for a search warrant at Minor’s address (R. 800).

Because he copied and pasted from a template, he made a mistake in drafting the

directionals portion of the warrant, but the directionals in the affidavit were

themselves correct (R. 802–803). The warrant was reviewed by a sergeant and

assistant state attorney before being signed by a judge (R. 802).

The search warrant set out in bold on the front page that the target residence

was 3098 Perry Ave., Greenacres, FL 33462 (R. 376). It included on the first page of

the warrant a photograph of the house, the same photo shown in the application (R.

345, 376). The photograph centered around a black, stand-alone mailbox with the

stern of a boat behind it in front of a light-colored house (R. 376). The warrant

described the premises as being occupied by the Minor Family (R. 377). It gave

directions on the second page of the warrant, however, to 5037 Angola Circle (R. 377).

Detective Pherson developed an “ops plan” for the SWAT team on the address

and the individuals at the premises (R. 804). The ops plan included an aerial view

and street view of the residence (R. 804–05, 827). Detective Pherson testified that the

SWAT team has a “scout” go to the residence and make sure the scene is safe before

the SWAT team and investigating detectives go there (R. 807–08). Then the SWAT

team proceeds to the residence to clear it, followed by the investigative team, which

2

included Detective Pherson in this case (R. 808). In the execution of this warrant,

nobody went to the wrong address (R. 808).

The detective believed that the SWAT team had a copy of the affidavit with

them along with the warrant (R. 829). The affidavit directed that the original of the

affidavit and application be kept in the custody of the executing agency until further

order of the court or release by the executing agency (R. 380). It set forth the address

as 3098 Perry Ave., Greenacres, FL 33463 with directions to that address (R. 345–

346). The description notes that “3098” is affixed in black lettering on a white

background to a black mailbox (R. 346).

Detective Pherson testified at the hearing on the motion to suppress that the

reported files were previously identified as known child pornography and that, based

on a hash value match, Facebook generated the report to NCMEC (R. 796). He viewed

the images on receipt to verify the content of the files (R. 796).

The images with hash value matches were already identified as child

pornography within the system (R. 833). Detective Pherson explained in the affidavit

that when an automated system flags hash values, or signatures for an individual

file, like “digital DNA,” the system forwards it to NCMEC (R. 351). He explained that

when Facebook responds “No,” it has not viewed the contents. When Facebook does

not answer, an employee of Facebook has previously viewed the image and rendered

an opinion that it involved a sex act involving a prepubescent minor but has not

contemporaneously viewed it (R. 351). Facebook uses a label in its cyber tips: “1” to

3

identify sex acts; “2” to identify lewd exhibition; “A” to signal an image involving a

prepubescent minor; and “B” to signal an image involving a pubescent minor (R. 350).

Minor filed an amended motion to suppress the search of his residence and

argued that the description of his residence in the warrant was inaccurate, that there

was insufficient probable cause, that the detective’s viewing of the images referred

by NCMEC violated his Fourth Amendment rights, and that his statement was

coerced (R. 312–324). At the close of the hearing on the motion, Minor’s counsel made

arguments but did not address the claim that the detective improperly viewed the

images without a warrant (R. 837–46). The trial court did not make any findings at

the hearing but deferred ruling (R. 852). The written order specifically discusses the

warrant description and statement but does not discuss the incorrect directions in

the warrant (R. 411–420).

Minor was ultimately convicted for possession of child pornography. On appeal,

he argued that the trial court erred in denying the motion to suppress because the

warrant gave an incorrect description of the place to be searched and because the

detective viewed the images before obtaining a warrant, that it improperly denied the

motion for judgment of acquittal, that the prosecutor’s closing argument gave rise to

fundamental error, and that he was unconstitutionally denied a twelve-member jury.

The Fourth District per curiam affirmed the convictions without written opinion,

foreclosing Minor’s path to the Florida Supreme Court.

4

REASONS FOR DENYING THE PETITION

I.

THE WARRANT MET THE PARTICULARITY REQUIREMENT OF

THE FOURTH AMENDMENT BECAUSE THE EXECUTING

OFFICERS WERE ABLE TO ASCERTAIN AND LOCATE THE PLACE

TO BE SEARCHED.

The Court should deny certiorari on question I because Minor’s petition is fact-

bound, because it presents no conflict among the lower courts, and because the lower

court’s ruling was correct. Minor asserts that the warrant violated the Fourth

Amendment because the description with step-by-step directions was incorrect (Pet.

at 16–21). The warrant, nonetheless, was not deficient because it set out information,

including the exact address and a photograph of the property with distinguishing

identifiers, that allowed the executing officers to readily locate Minor’s residence.

The touchstone of the Fourth Amendment is reasonableness, which is

measured in objective terms by considering the totality of the circumstances. Ohio v.

Robinette, 519 U.S. 33, 39 (1996). “It is enough if the description is such that the

officer with a search warrant can, with reasonable effort ascertain and identify the

place intended.” Steele v. United States, 267 U.S. 498, 503 (1925) (citations omitted).

The warrant did so in this case.

This Court’s decision in Maryland v. Garrison, 480 U.S. 79 (1987) is

instructive. In Garrison, the warrant directed officers to the third floor of a building

at a specific address but did not specify which of the two apartments located there

was the target apartment. Id. at 80–81. The officers searched the wrong apartment

before discovering the fact that there was a second apartment in the building. Id. This

5

Court still held that the officers’ conduct was consistent with a reasonable effort to

ascertain and identify the place to be searched. Id. at 88.

A warrant is not necessarily invalidated because it erroneously describes the

place to be searched. United States v. Burke, 784 F.2d 1090, 1092 (11h Cir. 1986).

“[P]ractical accuracy rather than technical precision controls the determination of

whether a search warrant adequately describes the place to be searched.” United

States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997) (quoting United States v.

Occhipinti, 998 F. 2d 791, 799 (10th Cir. 1993)). A correct street address in a warrant

is sufficient to particularly describe the place to be searched even if no other

description is given. United States v. Dancy, 947 F.2d 1232, 1234 (5th Cir. 1991).

In this case, the warrant listed the correct address in bold on its first page (R.

376). It also included on the top page a photograph of the premises (R. 376). The photo

had a black, free-standing mailbox in the foreground with the house number affixed

to it. See United States v. Kirtdoll, 101 F.4th 454, 457 (6th Cir. 2024) (highlighting

that the warrant included a unique and unmistakable identifier of a red star affixed

to the west side of the house). A boat was shown in the driveway (R. 376). The warrant

stated that the premises were occupied by the Minor Family (R. 377).

In considering the sufficiency of a warrant, a court may consider an executing

officer’s knowledge. Hutchings, 127 F. 3d at 1259–60; Burke, 784 F.2d at 1092–93

(11th Cir. 1986). The executing officers in the instant case received information about

the residence before serving the warrant. Detective Pherson briefed the SWAT team

on the residence and provided an aerial and street-view map of the location (R. 804–

6

805, 827). The SWAT team sent out a scout to locate the property before the team

headed to the property (R. 807–808). Moreover, Detective Pherson believed that the

executing officers had the affidavit which included the correct directionals (R. 829).

Because the warrant in this case provided accurate information about the

location of the residence on which the executing officers could rely to locate the correct

house, it was not wholly deficient. This case, therefore, is unlike Groh v. Ramirez, 540

U.S. 551 (2004), in which the warrant did not provide any description of the type of

evidence to be sought. Groh, 540 U.S. at 563–65. This Court in Groh deemed the

warrant facially deficient because even a cursory glance at it would reveal a glaring

deficiency in that it did not just “misdescribe a few of several items.” Id. at 557–58.

Here, though, a cursory glance at the warrant would have disclosed the correct

address to Minor’s residence, along with a photograph of the house and mailbox.

Even where a residence is omitted from the grant-of-authority section of a

warrant, the good-faith exception may be applied. In United States v. Watson, 498

F.3d 429 (6th Cir .2007), the Sixth Circuit decided that the omission of the residence

from the grant-of-authority was a clerical error that was not nearly as glaring as the

one in Groh because the introductory portion of the warrant put an executing officer

on notice that the search extended to the premises. Id. at 432–33. The court stressed

that Groh does not impose a strict proof-reading requirement. Id. at 433. It reasoned

that exclusion of evidence would not further the purpose of deterring police because

the error was a drafting oversight. Id. at 434.

7

The good-faith exception to the exclusionary rule also applies to the

circumstances of this case. See United States v. Thomas, 263 F.3d 805, 808 (8th 2001).

The affidavit contained the correct information, the officers executing the warrant

did not act in bad faith, the warrant described the premises, the officers scouted the

premises before execution, and the warrant was issued by a neutral judge after being

reviewed by others. Id.

II.

THE DETECTIVE’S VIEWING OF THE IMAGES DID NOT EXCEED HE

SCOPE OF THE PRIOR VIEWING OF THE SAME IMAGES BY A

FACEBOOK EMPLOYEE BEFORE HASH VALUES WERE ASSIGNED

TO THE IMAGES.

The Court should also deny certiorari on question II because Minor’s petition

is fact-bound and because the lower court’s ruling was correct. Minor argues that the

hash-value technology did not search the attachment when it compared hash values

(Pet. at 22–25). This argument ignores that the image was first viewed by a Facebook

employee before the hash value was assigned to it to compare the value to the instant

images by way of technology. The detective’s viewing of the same image did not exceed

the scope of Facebook’s search.

As a preliminary matter, because the Fourth District per curiam affirmed the

convictions without a written opinion, it is unclear whether the court affirmed based

on the merits of this argument. Florida argued on appeal that Minor had not

preserved his claim that Detective Pherson violated his Fourth Amendment rights by

viewing the images because the trial court never specifically ruled on this ground in

the order that expressly addressed other grounds raised in the motion to suppress.

See Wallen v. State, 984 So. 2d 655, 656 (Fla. 1st DCA 2008) (holding that the

8

defendant failed to preserve for review his alternative argument in the motion to

suppress because he failed to get a ruling on that issue even though the court

addressed the first issue raised in the motion).

Detective Pherson did not violate Minor’s reasonable expectation of privacy

because a Facebook employee previously viewed the images and created a hash value

system to flag the images uploaded by Minor. Once an original expectation of privacy

is frustrated, the Fourth Amendment does not prohibit the government from

obtaining the information that was revealed to a private party. United States v.

Jacobsen, 466 U.S. 109, 113 (1987). In Jacobsen, this Court determined that

government agents did not infringe on the respondents’ privacy rights by pushing

aside crumpled paper and picking up tubes made of tape from a box because the box

had already been opened by FedEx employees who had removed the tubes and plastic

bags. This Court reasoned that the government could have learned nothing from the

search unless there had been a flaw in the employees’ recollection that the tubes

contained plastic bags of white powder. Id. at 119.

Detective Pherson’s viewing of the reported images was akin to the removal of

the tubes and identification of the white powder in Jacobsen. In both instances, law

enforcement confirmed what private citizens already saw. A private citizen originally

viewed the image and deemed it child pornography before Facebook’s system detected

a hash-value match (R.796, 833). Detective Pherson explained that the hash value is

a unique number, like a digital fingerprint (R. 351, 786–787). The match indicates

that the image is known child pornography.

9

When a law enforcement officer receives an image with a hash value match to

known child pornography images, the officer knows with “’almost absolute certainty’”

that the images contain child pornography, since hash values are “’specific to the

makeup of a particular image’s data.’” United States v. Reddick, 900 F.3d 636, 639

(5th Cir. 2018), quoting United States v. Larman, 547 F. App’x 475, 477 (Fla. 5th Cir.

2013) (unpublished). For that reason, the Fifth Circuit in Reddick held that the

detective’s search of images did not exceed the search by Microsoft Skydrive, which,

through a program called PhotoDNA, scanned the hash values of the images and

detected a match to images of known child pornography. Id. at 638. See also United

States v. Meals, 21 F.4th 903, 908 (5th Cir. 2021) (holding that NCMEC did not exceed

the scope of Facebook’s search by reviewing the “identical” information that Facebook

reviewed).

The Reddick court stressed that there was no allegation that the detective’s

search encompassed any file other than flagged pornography, which is also true in

this case. 900 F.3d at 639. This point differentiated the case from the situation in

United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) in which the investigator

viewed an email and three attachments which did not correspond to a hash value

match. Id. at 640.

Similarly, in United States v. Miller, 982 F.3d 412 (6th Cir. 2019), the Sixth

Circuit analogized Google’s electronic inspection to the search of the box by the FedEx

employee in Jacobsen. Miller, 982 F.3d at 429. In Miller, Google scanned the Gmail

account and learned by way of hash-value technology that two uploaded files matched

10

child pornography Id. at 417. Google sent a report with the two files to NCMEC, which

sent the files to a local law enforcement agency corresponding to the IP address for

the email account. Id.

Miller claimed that the detective exceeded the scan by Google by viewing the

files. Id. at 426. The court determined, however, that the detective had the same

level of “virtual certainty” that the FedEx employee in Jacobsen had. Id. at 429–31.

It pointed out that the virtual search, which undertook a pixel-by-pixel inspection,

likely revealed more than a manual inspection. Id. at 430–31. For this reason, the

court opined that the written descriptions later given by law enforcement did not

exceed the hash-value match which revealed known child pornography. Id.

Minor claims that the private search in the instant case was like the search by

the private citizen in Walter v. United States, 447 U.S. 649 (1980), who read labels on

boxes of film instead of viewing the films. Minor misses the point that a Facebook

employee had previously viewed the images at issue.

In Walter, FBI agents used a projector to view films contained in boxes within

packages that had been mistakenly shipped to a company whose employees examined

the boxes, with one employee opening a box and holding up a piece of film to try to

view it. Id. at 651–52. The boxes were labelled with suggestive drawings and explicit

descriptions of the contents that indicated the boxes contained obscene images. Id.

This Court noted, “[p]rior to the Government screening one could only draw

inferences about what was on the films.” Id. It did not consider whether the

Government could have viewed the films if the private party had done so first. Id. at

11

n.9. Compare United States v. Simpson, 904 F. 2d 607, 610 (11th Cir. 1990) (holding

that agents’ search did not exceed the scope of FedEx employees who also viewed the

films in the opened package).

Here, a private citizen previously viewed the images. In Jacobsen, this Court

articulated, “the removal of the plastic bags from the tube and the agent’s visual

inspection of their contents enabled the agent to learn nothing that had not

previously been learned during the private search.” Jacobsen, 466 U.S. at 120. The

same is true here even though Facebook did not provide a specific description of the

contents of the images.

A government search does not exceed a private search where the search reveals

nothing of significance that the private search already disclosed. The significance of

a hash match to known child pornography is that the image is the same that was

previously viewed by a social media employee. United States v. Lowers, 715 S.Supp.3d

741, 75556 (E.D.N.C. 2024). The notion that a computer scan that searches for a hash

value matches only a known hash value and reveals nothing about the particulars of

an image, see United States v. Maher, 120 F.4th 297, 315, 317 (2d Cir. 2024), does not

account for the significance of the hash-value match. The match is not to just another

image with the same hash value; it is to the other image which was ascribed the same

hash value because it is the same image.

Exclusion would not be warranted in this case. At the time of Detective

Pherson’s search in November of 2020, the only Florida court to write on the issue

held that a hash value match permitted a subsequent viewing by law enforcement.

12

See Morales v. State, 274 So. 3d 1213, 1218 (Fla. 1st DCA 2019). Federal circuits also

agreed at that time that hash-value matches permitted viewing by detectives

receiving cyber tips from NCMEC. See Maher, 120 F.4th at 322 (finding that the good

faith exception applied because, at the time the detective conducted the search in July

of 2020, the only two federal circuits to have considered the private search doctrine

in the context of hash value scans decided that the officers did not exceed the private

searches when they conducted a visual inspection of the images).

III.

SIMILAR TO GUZMAN V. FLORIDA, 144 S. CT. 2595 (2024), THIS CASE

DOES NOT WARRANT REVIEW.

Lastly, Minor implores the Court to recede from Williams v. Florida, 399 U.S.

78, 86 (1970), and recognize a right to a twelve-member jury. (Pet. at 26–37). A nearly

identical argument was before this Court just last year in Guzman v. Florida, 144 S.

Ct. 2595 (2024). There, the Court denied review. Florida adopts the arguments it

made in Guzman and applies those arguments herein as nothing in the legal

landscape has changed since Guzman nor is there anything about the instant case

which necessitates a different result.

A.

The Court Should Reject Petitioner’s Invitation to Reconsider

and Overrule Williams.

In Williams v. Florida, 399 U.S. 78 (1970), this Court held that the Sixth

Amendment permits juries comprised of six members in serious criminal cases.

Although Minor urges the Court to grant review to overrule this fifty-five-year-old

case, he does not acknowledge his heavy burden to show that the Court should do so.

This Court does not lightly overrule precedent. “Stare decisis is the preferred

course because it promotes the evenhanded, predictable, and consistent development

13

of legal principles, fosters reliance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.” Janus v. Am. Fed’n of State, Cnty., &

Mun. Emps., Council 31, 138 S. Ct. 2448, 2478 (2018). To that end, this Court

considers several factors before overruling a prior decision: the quality of the prior

decision’s reasoning, the workability of its holding, its consistency with other cases,

post-decision developments, and reliance on the decision. Id. at 2478-79. Those factors

favor leaving Williams undisturbed.

Minor is wrong to dismiss the quality of Williams’ reasoning as “functionalist

logic.” (Pet. at 31). On the contrary, Justice White’s opinion for the Court in

Williams—thick with scholarly footnotes—extensively canvassed the history of, and

purposes behind, the jury-trial right as established by “the Framers” in the Sixth

Amendment. 399 U.S. at 103. The Court devoted thirteen pages to the history and

development of the common-law jury and the Sixth Amendment. See id. at 87-99; see

also Ramos, 140 S. Ct. at 1433 (Alito, J., dissenting) (observing that Williams

contained “a detailed discussion of the original meaning of the Sixth Amendment

jury-trial right”). This Court in Williams examined the history surrounding the

common-law twelve-person requirement. See 399 U.S. at 87–89, 87 nn.19–20, 88 n.23.

It addressed the Court’s previous cases discussing jury size. See id. at 90–92, 90 n.26,

91 nn.27–28, 92 nn.29–31. It discussed the history of Article III’s jury-trial provision

and the accompanying ratification debates. See id. at 93–94, 93 nn.34–35. It analyzed

the drafting history of the Sixth Amendment, including disputes over what language

to use. See id. at 94–97, 94 n.37, 95 n.39. And it considered contemporaneous

14

constitutional provisions and statutes regarding juries. See id. at 97 & nn.43–44. The

upshot was that, as a matter of original meaning, the word “jury” in the Sixth

Amendment did not codify any common-law practice of empaneling twelve jurors. See

id. at 99–100.

Minor makes no attempt to identify error in that analysis. As Williams

observed, although the “jury at common law came to be fixed generally at 12, that

particular feature of the common law jury appears to have been a historical accident,”

399 U.S. at 89 (footnote omitted), and was not uniform even at common law, as the

Pennsylvania colony “employed juries of six or seven,” id. at 98 n.45 (citing Paul

Samuel Reinsch, The English Common Law in the Early American Colonies, in 1

Select Essays in Anglo-American Legal History 367, 398 (1907)).

But even assuming uniformity in common-law practice, the Court explained

that not every such practice was “immutably codified into our Constitution.”

Williams, 399 U.S. at 90; see Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228,

2255 (2022) (“[T]he fact that many States in the late 18th and early 19th century did

not criminalize pre-quickening abortions does not mean that anyone thought the

States lacked the authority to do so.”). For example, at English common law, a jury

consisted of twelve male freeholders (i.e., landowners) from the vicinage (i.e., county)

of the alleged crime. 4 William Blackstone, Commentaries on the Laws of England

343–44 (1769); see also Henry G. Connor, The Constitutional Right to a Trial by a

Jury of the Vicinage, 57 U. Pa. L. Rev. & Am. L. Reg. 197, 198–99 (1909) (quoting the

Continental Congress’s explanation of the prevailing practice of using “12 . . .

15

countrymen and peers of [the accused’s] vicinage”); William S. Brackett, The Freehold

Qualification of Jurors, 29 Am. L. Reg. 436, 444–46 (1881) (detailing the colonies’

widespread practice of following the common-law requirement that juries consist only

of “freeholders”). Yet Minor does not contend that the Sixth Amendment at any point

in history mandated that a jury consist only of male landowners hailing from a

particular county.

As this Court in Williams correctly observed, any such contention would be

inconsistent with the Sixth Amendment’s drafting history. The Framers, the Court

explained, resoundingly rejected James Madison’s proposal to constitutionalize in the

Sixth Amendment all the “accustomed requisites” of the common-law jury. Williams,

399 U.S. at 94 (quoting 1 Annals of Cong. 452 (1789) (Joseph Gales ed., 1834)).

Instead, the Sixth Amendment that the Framers proposed and the people ratified

required only that juries be impartial and drawn from the state and district in which

the crime was committed, which departed from the common-law practice by allowing

Congress to establish the relevant vicinage through its creation of judicial districts.

And though one might conclude that the Framers rejected the common-law requisites

of jury composition because they were implicit in the word “jury,” Williams, 399 U.S.

at 96–97 (noting the possibility); see also Khorrami, 143 S. Ct. at 25 (Gorsuch, J.,

dissenting from denial of certiorari), Madison certainly did not think that was the

case. He lamented that in removing the common-law requirements, the Framers

“str[uck] . . . at the most salutary articles.” Williams, 399 U.S. at 95 n.39 (quoting

Letter from James Madison to Edmund Pendleton, Sept. 14, 1789, in 1 Letters and

16

Other Writings of James Madison 491 (1865)). And Senator Richard Henry Lee

“grieved” that they had left the “Jury trial in criminal cases much loosened.” Letter

from Richard Henry Lee to Patrick Henry, Sept. 14, 1789, https://ti-nyurl.com/

muu5xzfa. Those would seem dramatic reactions to the mere trimming of surplusage.

Minor errs in contending that this Court’s recent decision in Ramos requires

overruling Williams. (Pet. at 29–30). In Ramos, the Court held that the Sixth

Amendment constitutionalized the common-law requirement that a jury be

unanimous, thus overruling this Court’s fractured decision to the contrary in Apodaca

v. Oregon, 406 U.S. 404 (1972). In doing so, Ramos discounted the relevance of the

Amendment’s drafting history, stating that “rather than dwelling on text left on the

cutting room floor, we are much better served by interpreting the language Congress

retained and the States ratified.” 140 S. Ct. at 1400. The Court instead relied on the

fact that the unanimity of a jury verdict was “a vital right protected by the common

law,” id. at 1395, to conclude that the Sixth Amendment protected the same.

But it does not follow that the Sixth Amendment codified all aspects of the jury

trial that obtained at common law—in particular the common-law rules for jury

composition such as the number of jurors, vicinage, and juror landownership. James

Wilson—a framer of the Constitution and one of the first Justices on this Court—

observed: “When I speak of juries, I feel no peculiar predilection for the number

twelve.” 2 James Wilson, Works of the Honourable James Wilson 305 (1804) (quoted

in Colgrove v. Battin, 413 U.S. 149, 156 n.10 (1973)). Rather, Wilson wrote, a jury

“mean[s] a convenient number of citizens, selected and impartial, who . . . are vested

17

with discretionary powers to try the truth of facts.” Id. at 306. Six impartial jurors

acting by unanimous consent satisfy that definition. And the Court in Williams itself

noted that its holding that a jury of six is constitutional was distinct from the

requirement of unanimity, which, it observed, “unlike [jury size], may well serve an

important role in the jury function”—namely, “as a device for insuring that the

Government bear the heavier burden of proof.” 399 U.S. at 100 n.46.

Still less does it follow that the Court should discard Williams as Ramos

discarded Apodaca. Unlike Williams, which commanded a solid majority of this

Court, Apodaca was a uniquely fractured decision that several Justices concluded in

Ramos was not entitled to respect under the doctrine of stare decisis at all. See Ramos,

140 S. Ct. at 1398–99 (Gorsuch, J., joined by Ginsburg, Breyer, and Sotomayor, JJ.);

id. at 1409 (Sotomayor, J., concurring in part) (calling Apodaca a “universe of one”);

id. at 1402 (opinion of Gorsuch, J., joined by Ginsburg and Breyer, JJ.) (concluding

that Apodaca supplied no governing precedent). Unlike Apodoca’s holding that the

Sixth Amendment does not require unanimous juries in state prosecutions, which

subsequent cases referred to as an “exception” to settled incorporation doctrine and

struggled to explain what it “mean[t],” Ramos, 140 S. Ct. at 1399, Williams has

consistently been “adhere[d] to” and “reaffirm[ed].” Ballew v. Georgia, 435 U.S. 223,

239 (1978) (opinion of Blackmun, J., joined by Stevens, J.); see also Ludwig v.

Massachusetts, 427 U.S. 618, 625–26 (1976); Collins v. Youngblood, 497 U.S. 37, 52

n.4 (1990); U.S. v. Gaudin, 515 U.S. 506, 510 n.2 (1995). And in Colgrove, this Court

followed Williams in holding that six-person juries satisfy the Seventh Amendment’s

18

guarantee of a jury trial in civil cases. 413 U.S. at 158–60. That does not reflect a

decision that has “become lonelier with time.” Ramos, 140 S. Ct. at 1408.

Nor is reconsidering Williams warranted on the ground that the Court followed

its detailed historical analysis with an assessment of the purpose of the jury trial and

the functioning of a six-person jury. See 399 U.S. at 100–02. In Williams, this Court

construed the purpose of the jury right to be “the interposition between the accused

and his accuser of the commonsense judgment of a group of laymen,” and reasoned

that the difference between a jury of six and twelve is not likely to make a difference

in that regard “particularly if the requirement of unanimity is retained.” Id. at 100.

The Court also found that the available data “indicate that there is no discernible

difference between the results reached by” six- and twelve-person juries. Id. at 101 &

n.48 (citing studies).

Purpose may validly inform the meaning of text. See Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012) (“Of course,

words are given meaning by their context, and context includes the purpose of the

text.”). Not surprisingly, this Court’s criminal-procedure precedents routinely have

considered purpose—and with far less analysis of original meaning than Williams—

in interpreting constitutional text. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530

(1975) (Sixth Amendment requires juries selected from fair cross-section of

community); Miranda v. Arizona, 384 U.S. 436, 471–74 (1966) (law enforcement must

inform detainees of Fifth Amendment rights and obtain waiver before proceeding

with interrogation); Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963) (Sixth

19

Amendment requires court-appointed counsel for indigent defendants); Weeks v. U.S.,

232 U.S. 383, 393 (1914) (evidence seized in violation of Fourth Amendment is

inadmissible at trial); Brady v. Maryland, 373 U.S. 83, 87–88 (1963) (prosecution

must provide exculpatory evidence to defendant); Strickland v. Washington, 466 U.S.

668, 686–87 (1984) (Sixth Amendment requires defense attorney to provide effective

assistance); Atkins v. Virginia, 536 U.S. 304, 320–21 (2002) (Eighth Amendment

prohibits imposing capital punishment on mentally disabled); Roper v. Simmons, 543

U.S. 551, 568–69 (2005) (Eighth Amendment prohibits imposing capital punishment

for crimes committed when defendant was under 18); Griffin v. California, 380 U.S.

609, 614–15 (1965) (Fifth Amendment prohibits adverse inference from defendant’s

failure to testify). There is no basis for discounting Williams’ reasoning simply

because it also considered the “function” served by the right. 399 U.S. at 99.

Minor is also wrong that post-decision developments have cast doubt on

Williams’ reasoning that a six-person jury fulfills the purposes of the Sixth

Amendment. Minor cites Justice Blackmun’s opinion in Ballew and subsequent

research to suggest that empirical evidence shows that six-person juries do not

function as well as twelve-person juries. (Pet. at 32–37); see also Khorrami, 143 S. Ct.

at 26–27 (Gorsuch, J., dissenting from denial of certiorari). But those do not present

the

kinds

of

overwhelming

developments

sufficient

to

“erode”

Williams’

“underpinnings,” Janus, 138 S. Ct. at 2482—and in many ways later developments

corroborate Williams.

20

To start, Ballew itself did not find that the purported developments warranted

overruling Williams; it “adhere[d] to” and “reaffirm[ed]” Williams. 435 U.S. at 239

(opinion of Blackmun, J., joined by Stevens, J.). And for good reason: post-Williams

scholarship is, at most, mixed on this point.

In fact, social-science studies amply support Williams’ conclusions, leading

some scholars to criticize courts for claiming that six-person juries are inferior. See

Kaushik Mukhopadhaya, Jury Size and the Free Rider Problem, 19 J.L. Econ. & Org.

24, 24 (2003). Smaller juries are preferable to larger ones in several ways. For one,

larger juries can lead to a “free riding” phenomenon where jurors pay less attention

and participate less in deliberations because they think there are plenty of other

jurors to do the work. Id. at 40. That, in turn, can lead to less accurate verdicts. Id.

Six-person juries, by contrast, are more likely to make decisions as a group

rather than by a few outgoing jurors who dominate deliberations. See Bridget M.

Waller et al., Twelve (Not So) Angry Men: Managing Conversational Group Size

Increases Perceived Contribution by Decision Makers, 14 Grp. Processes & Intergrp.

Rels. 835, 839 (2011); see also Nicolas Fay et al., Group Discussion as Interactive

Dialogue or as Serial Monologue: The Influence of Group Size, 11 Psych. Sci. 481, 481

(2000) (reporting similar findings in non-jury groups). Put differently, a juror is more

likely to find his or her voice in a smaller group setting.

Many assume that the additional jurors in a twelve-person jury make it more

likely that one or more jurors will prevent the conviction of an innocent defendant.

But if that were true, the rates of hung juries would be higher for twelve-person juries

21

than six-person juries. Yet empirical data shows no significant differences in the rates

of hung juries between six- and twelve-person juries. See, e.g., Barbara Luppi &

Francesco Parisi, Jury Size and the Hung-Jury Paradox, 42 J. Legal Stud. 399, 402–

04 (2013) (collecting studies). And other studies show that if required to be

unanimous, six-person juries do not suffer from a meaningful increase in inaccurate

verdicts. See Alice Guerra et al., Accuracy of Verdicts Under Different Jury Sizes and

Voting Rules, 28 Sup. Ct. Econ. Rev. 221, 232 (2020) (concluding that unanimous sixperson juries “are alternative ways to maximize the accuracy of verdicts while

preserving the functionality of juries”).

That reality is reflected in publicly available statistics. Far from returning

higher rates of convictions, see Khorrami, 143 S. Ct. at 26 (Gorsuch, J., dissenting

from denial of certiorari), Florida juries convict criminal defendants at comparable—

and possibly even slightly lower—rates than juries in jurisdictions that use twelve

jurors. For example, between 2017 and 2019, felony juries in Florida convicted

defendants at rates of 74.0%, 1 73.3%, 2 and 72.1%, 3 respectively. In the same years,

See Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts Statistical Reference

Guide FY 2016-17 3-21 (2018), https://ti-nyurl.com/4drv24ky (1,901 convictions out of

2,570 cases that went to the jury).

2 See Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts Statistical Reference

Guide FY 2017-18 3-21 (2019), https://ti-nyurl.com/433vwfy3 (1,784 convictions out of

2,434 cases that went to the jury).

3 See Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts Statistical Reference

Guide FY 2018-19 3-21 (2020), https://ti-nyurl.com/43zywh5n (1,621 convictions out

of 2,248 cases that went to the jury).

22

felony juries in Texas convicted at rates of 79.0%, 4 81.0%, 5 and 78.0%; 6 felony juries

in California convicted at rates of 86.0%, 7 85.0%, 8 and 84.0%; 9 and felony juries in

New York convicted at rates of 74.6%, 10 73.7%, 11 and 75.2%. 12 Minor’s implication

that Florida juries are steamrolling criminal defendants relative to other jurisdictions

thus lacks support in the data. Instead, the data reflect what multiple studies have

shown: six- and twelve-person juries similarly serve to “interpos[e] between the

accused and his accuser . . . the commonsense judgment of a group of laymen.”

Williams, 399 U.S. at 100. 13 It is thus not true, as Minor would have it, that Williams’

assessment of the six-person jury’s effectiveness “has proven incorrect.” (Pet. at 31).

4 Off. of Ct. Admin., Annual Statistical Report for the Texas Judiciary Fiscal

Year 2017 Court-Level - 20 (2018), https://ti-nyurl.com/mtrp379s.

5 Off. of Ct. Admin., Annual Statistical Report for the Texas Judiciary Fiscal

Year 2018 Court-Level - 21 (2019), https://ti-nyurl.com/2s3fsmpf.

6 Off. of Ct. Admin., Annual Statistical Report for the Texas Judiciary Fiscal

Year 2019 Court-Level 23 (2020), https://ti-nyurl.com/ywh779v3.

7 Jud. Council of Cal., 2018 Court Statistics Report: Statewide Caseload Trends

69 (2018), https://ti-nyurl.com/5n6tj9pr.

8 Jud. Council of Cal., 2019 Court Statistics Report: Statewide Caseload Trends

69 (2019), https://ti-nyurl.com/mwmby3h5.

9 Jud. Council of Cal., 2020 Court Statistics Report: Statewide Caseload Trends

55 (2020), https://ti-nyurl.com/2mym3hrx.

10 Chief Adm’r of Cts., New York State Unified Court System 2017 Annual

Report 48 (2018), https://tinyurl.com/yckheu9v.

11 Chief Adm’r of Cts., New York State Unified Court System 2018 Annual

Report 42 (2019), https://tinyurl.com/yc7cvjhe.

12 Chief Adm’r of Cts., New York State Unified Court System 2019 Annual

Report 38 (2020), https://tinyurl.com/2wtwfmdm.

13 Relying on studies purporting to show that smaller juries result in fewer

minority jurors, Minor suggests that six-person juries threaten the right to a jury

drawn from a fair cross-section of the community. (Pet. at 23); see also Khorrami, 143

(footnote continued)

23

Minor adds insult to error in suggesting that Florida’s six-person jury rule was

adopted “to suppress minority voices.” (Pet. at 35). Beyond noting that the rule dates

from Reconstruction, however, Minor cites no evidence suggesting that is so and

makes no attempt to explain how a rule establishing the size of juries without regard

to race could be a covert instrument of racism.

Florida history in fact shows quite the opposite. Minor believes it nefarious

that “[t]he common law rule of a jury of twelve was still kept in Florida while federal

troops remained in the state,” but that Florida then reduced the size of certain juries

to six in 1877, after the departure of federal troops that had occupied Florida after

the Civil War. (Pet. at 33). But petitioner fails to note that, even after that, Florida

also retained 12-person juries in capital cases, Act of February 17, 1877, ch. 3010, §

6, 1877 Fla. Laws 54, a fact quite inconsistent with petitioner’s charge of racism. And

in any event, petitioner does not contend that any part of Florida’s current

constitution—which was adopted in 1968 and provides that “the number of jurors,

not fewer than six, shall be fixed by law,” Fla. Const. art. I, § 22—was motivated by

racial animus.

Finally, Minor does not so much as acknowledge, let alone dispute, that

overruling Williams would have sweeping consequences for the citizens of Arizona,

Connecticut, Florida, Indiana, Massachusetts, and Utah, which have for decades

relied on Williams in using criminal juries of less than twelve jurors.

S. Ct. at 26 (Gorsuch, J., dissenting from denial of certiorari). Even if that were true,

the fair-cross-section requirement applies only to the venire, not the petit jury.

Lockhart v. McCree, 476 U.S. 162, 173–74 (1986).

24

Florida is the third most populous state in the country and tries all noncapital

crimes before six-person juries. Currently, roughly 5,000 criminal convictions are

pending on direct appeal in Florida. Overruling Williams would force the use of public

resources to conduct thousands of retrials on top of the trials already pending and

might well result in the release of convicted criminals into the public.

The states’ reliance interests here far outstrip the already “massive” and

“concrete” reliance interests in Ramos. 140 S. Ct. at 1438 (Alito, J., dissenting). There,

only two states allowed nonunanimous jury verdicts, and overruling Apodaca affected

only those convictions that were actually obtained by nonunanimous verdicts. The

affected convictions numbered somewhere in the hundreds. Id. at 1406. Here, by

contrast, six states use juries with less than twelve jurors in at least some criminal

prosecutions. And all convictions from those juries would suddenly be suspect. In

Florida, that is every conviction that is not a capital case, which amounts to several

thousand.

As a last point on reliance, overruling Williams would not affect only criminal

cases. In Colgrove, this Court relied on Williams in holding that the Seventh

Amendment permits six-person juries in civil trials. 413 U.S. at 158–60.

Consequently, nearly 90% of federal civil verdicts would also be in jeopardy. See Fed.

R. Civ. P. 48(a); Patrick E. Higginbotham et al., Better by the Dozen: Bringing Back

the Twelve-Person Civil Jury, 104 Judicature 46, 50 (2020) (finding that only roughly

12% of federal civil trials use twelve-person juries).

25

B.

This Case is a Poor Vehicle.

As in Guzman, the case sub judice is a poor vehicle for reconsidering Williams.

This Court generally avoids deciding legal issues when doing so will have no effect on

the litigants in the case. See Chafin v. Chafin, 568 U.S. 165, 172 (2013). Yet even if

the Court granted the petition and overruled Williams, Minor would not obtain relief

because the error would be harmless.

A constitutional error at trial generally does not require automatic reversal.

Chapman v. California, 386 U.S. 18, 22 (1967). An error usually requires reversal

only if it was likely to have affected the outcome of the trial. Id. Thus, “most

constitutional errors can be harmless.” Neder v. U.S., 527 U.S. 1, 8 (1999). If the

defendant had the assistance of counsel in a trial with an impartial adjudicator,

“there is a strong presumption” that any errors are subject to harmless-error analysis.

Id.

The only exception to the general rule subjecting constitutional errors to

harmless-error analysis is for so-called “structural errors.” Weaver v. Massachusetts,

137 S. Ct. 1899, 1907 (2017). But the exception applies only to a “very limited class”

of errors. Neder, 527 U.S. at 8. Those errors fall under three categories—none of

which would include empaneling fewer than twelve jurors. First, an error may be

structural when the violated right protects some interest other than preventing

erroneous convictions. Weaver, 137 S. Ct. at 1908. But Minor himself argues that

accuracy is the interest protected by the purported twelve-person requirement. (Pet.

at 32–34). Second, errors are structural when they are inherently harmful such that

they always result in fundamental unfairness. Weaver, 137 S. Ct. at 1908. Smaller

26

juries, however, cannot be said to always result in unfairness—in many cases they

will have no effect or may even benefit the defendant. Third, an error is structural if

the effect of the error is impossible to determine. Id. But as this Court held in Neder,

the effect of violating a defendant’s Sixth Amendment jury right is sometimes

possible to determine because a court can review the record and, if the evidence is

“overwhelming” and “uncontroverted,” determine beyond a reasonable doubt what

the jury would have done. 527 U.S. at 9.

In Neder, an element of the charged offense was omitted from the jury

instructions such that the jury did not find every element of the offense. See id. at 8.

Even though that error deprived the defendant of his Sixth Amendment jury right

because the omission meant a jury never convicted him of the charged offense, the

Court held that the error was harmless. Id. at 15, 19–20. Because the record

contained “overwhelming” and “uncontroverted” evidence of the omitted element, the

Court found beyond a reasonable doubt that the jury would have found the omitted

element. See id. at 9, 19–20. Similarly, this Court has subjected other deprivations of

a Sixth Amendment jury to harmless-error analysis. See Washington v. Recuenco, 548

U.S. 212, 221–22 (2006) (subjecting a judge’s unconstitutional finding of a fact that

increased the maximum possible sentence to harmless-error analysis); Hurst v.

Florida, 577 U.S. 92, 102–03 (2016) (remanding to determine whether depriving

defendant of the right to have a jury find aggravating factors necessary for a death

sentence was harmless).

27

Were Williams overruled, the same reasoning would apply here. A court can

review the trial record and evaluate whether the evidence was “overwhelming” such

that there is no reasonable doubt that an additional six jurors would not have affected

the outcome. If anything, the case for harmless-error review is stronger here than in

Neder as an appellate court at least has the benefit of a jury finding as to each element

of the offense.

The State would prove any error here harmless beyond a reasonable doubt.

The evidence at trial was “overwhelming.” Minor had an account on the computer and

the images were downloaded from a website for which Minor had a subscription (T.

377-378). Minor admitted to his wife that he did not know why he kept all of the

material (T. 470-471). Changing the size of the jury would not have altered that

outcome. Thus, Minor would not be entitled to reversal of his conviction whether or

not the Court overruled Williams. So even if the Court wishes to take the drastic step

of overruling a fifty-five-year-old precedent, the Court should at least do so in a case

where the decision will affect the ultimate outcome.

CONCLUSION

Based on the foregoing, Minor’s petition for writ of certiorari should be denied.

Respectfully submitted,

JAMES UTHMEIER

ATTORNEY GENERAL

OF FLORIDA

Tallahassee, Florida

By:/s/ Celia Terenzio

CELIA TERENZIO

Bureau Chief, Criminal Appeals

28

By:/s/ Melynda L. Melear___

MELYNDA L. MELEAR

Senior Assistant Attorney General

Office of the Attorney General

State of Florida

1515 N. Flagler Drive, Suite 900

West Palm Beach, FL 33401

Tel: (561) 837-5016

crimappwpb@myfloridalegal.com

Counsel for Respondent, State of Florida

29