author: WALKER, Circuit Judge: JORDAN, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mario WILCHCOMBE, Nathaniel Erskine Rolle, Alteme Hiberdieu Beauplant, Defendants-Appellants.
    No. 14-14991
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/04/2016

      Phillip Drew DiRosa, U.S. Attorney’s Office, Fort Lauderdale, FL, Christopher Barrett Browne, Assistant U.S. Attorney, Wifredo A. Ferrer, Daren Grove, Kurt K. Lunkenheimer, Kathleen Mary Salyer, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.
    Martin Alan Feigenbaum, Surfside, FL, for Defendant-Appellant Mario Wilchcom-be.
    Jordan M. Lewin, Jordan M. Lewin, PA, Coral Gables, FL, for Defendant-Appellant Nathaniel Erskine Rolle.
    Simon Patrick Dray, S. Patrick Dray, PA, Miami, FL, for Defendant-Appellant Alteme Hiberdieu Beauplant.
    Before MARCUS, JORDAN and WALKER, Circuit Judges.

       Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation.

   WALKER, Circuit Judge:

Defendants Mario Wilchcombe, Nathaniel Erskine Rolle, and Alteme Hiberdieu Beauplant appeal from a judgment entered in the United States District Court for the Southern District of Florida (Altonaga, J.) following a jury trial convicting (1) all defendants of conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana while on board a vessel subject to U.S. jurisdiction, in violation of 46 U.S.C. §§ 70503(a) and (b) and 70506(a), 21 U.S.C. §§ 960(b)(1)(B) and (2)(G) and 18 U.S.C. § 2; and (2) Rolle individually of failing to obey a lawful order to heave to his vessel of which he was the master, operator, and person in charge, in violation of 18 U.S.C. § 2237(a)(1). The district court sentenced Beauplant and Wilchcom-be principally to 120 months’ imprisonment and Rolle to 135 months’ imprisonment.

On appeal, the defendants argue that (A) the district court lacked subject matter jurisdiction over the prosecution; (B) the evidence was insufficient to support Wil-chcombe’s conviction; (C) the district court erred in failing to declare a mistrial based on improper prosecutorial comment on Rolle’s and Beauplant’s post-custody, pre-Mimnda silence;. (D) the district court erred in denying Beauplant’s motion to dismiss on the basis of the unavailability of favorable evidence; and (E) the district court abused its discretion in admitting uncharged misconduct evidence against Beauplant. Finding no merit in any of these arguments, we AFFIRM.

I.

A.

Keno Wade Russell, a Bahamian fisherman and cooperating witness, and members of the Coast Guard testified to the following facts.

In April 2014, Russell met in the Bahamas with a drug smuggler known as Kool Aid, Rolle, and two other men. During the meeting, Rolle agreed to use his small fishing boat, located in Haiti, to bring drugs from Haiti to the Bahamas. Kool Aid gave Rolle money to fly to Haiti and arranged to travel with Russell to Haiti via freighter. The men agreed that once Kool Aid and Russell arrived in Haiti, they would meet with Rolle; Mario Wilchcombe, a longtime acquaintance of Russell; and another drug smuggler named Enoch.

After arriving in Haiti, Kool Aid and Russell met Enoch, Rolle, Wilchcombe, and Beauplant on the íle de la Tortue, where they remained for a week. Russell, Rolle, Beauplant, and others (not including Wilchcombe) loaded cocaine and marijuana onto Rolle’s boat, stacking the bales on the deck and placing drugs in the center console. When the boat was ready for departure, a 17-year-old Haitian named either Pepe Anri or Pepe Henri (“Henri”), arrived at the boat, and Enoch told Rolle to bring Henri to the Bahamas.

On May 3, 2014, at around seven or eight in the evening, Rolle’s boat left Haiti with Rolle, Wilchcombe, Beauplant, Russell, and Henri on board. A few hours later, the crew of the United States Coast Guard cutter Charles Sexton, ■ which was patrolling the' ocean between Cuba and Haiti, received a tip that a boat carrying drugs had recently departed from the lie de la Tortue. Shortly thereafter, the Charles Sexton began tracking Rolle’s boat, which was powered by two engines and was heading north at 10 to 15 knots per hour, Because of the boat’s relatively high speed, Lieutenant Scott Nichols and four other crewmen left the cutter to pursue the target in a small rubber chase boat.

As the chase boat approached, Rolle’s boat increased its speed and continued to travel with its lights off. The chase boat turned on its lights, spotlight, flashing blue lights, and siren. After the chase boat fixed Rolle’s boat in its spotlight, its crewmem-bers saw that Rolle’s boat was not flying a flag. At that point, Petty Officer Michael Irigoyen ordered Rolle’s boat to stop. Instead, Rolle further increased the speed of his boat and made a series of evasive turns while repeatedly looking back at the chase boat. During the pursuit, two men in addition to Rolle stood on the deck of Rolle’s boat and spent approximately 10 minutes throwing large packages into the water. After they finished, Rolle slowed his boat.

After the chase boat pulled alongside Rolle’s boat, Lieutenant Nichols saw two men on board in addition to Rolle and the two men who had been jettisoning packages. One of the newly-spotted men was near the front and the other was near the back by the engines. It appeared to Lieutenant Nichols that the man near the engines, later identified as Wilchcombe, had been laying on the deck. Russell explained at trial that Wilchcombe had been holding a loose wire in place so that one of the engines, which had malfunctioned during the trip, could continue to function.

Two members of the Coast Guard boarded Rolle’s boat and'turned off the engines. They returned to the chase boat and' Lieutenant Nichols questioned the men on Rolle’s boat to determine the identity of the captain, the boat’s country of registration, and its destination. Rolle responded that he was from the Bahamas and owned the boat, which was registered in the Bahamas. He said that two of the other men on the boat were Bahamian and that the other two were Haitian. He said that he was traveling between Bahamian islands. To Lieutenant Nichols, the men on Rolle’s boat appeared calm and relaxed. None asked to speak with him privately.

Lieutenant Nichols radioed the information provided by Rolle back to the cutter, and the Coast Guard requested that the Bahamian Government provide a statement of no objection (“SNO”), which would allow the Coast Guard to board Rolle’s Bahamian-registered boat for law-enforcement reasons. The time between the request and the response was approximately two hours. While the crew of the chase boat waited, Lieutenant Nichols saw Rolle speaking with the man later identified as Russell and directed them to stop.

After receiving word from the cutter that the Bahamian Government had confirmed that the target vessel was registered in the Bahamas and had provided the SNO, Lieutenant Nichols and Petty Officer Irigoyen boarded Rolle’s boat, frisked the occupants, and found several pocketknives on the men and nearly $2,000 in cash in Rolle’s waistband. In response to a question, Rolle said that he and two friends were giving a ride to two other friends. The Coast Guard took the passengers into custody and Lieutenant Nichols and Petty Officer Irigoyen searched the boat. During the search, Lieutenant Nichols and Petty Officer Irigoyen took photos and seized personal effects. They also inspected Rolle’s boat to determine whether it could be towed to port. After determining that this would be neither feasible nor safe, the Coast Guard sank the boat.

By the time that Lieutenant Nichols and Petty Officer Irigoyen completed the search and returned to the cutter with the suspects, the cutter’s crew had recovered 40 package's that had been thrown overboard, along with two duffel bags and a GPS. The packages contained 35 kilograms of cocaine and 860 kilograms of marijuana. The Coast Guard detained the men aboard the cutter for a few days during which time they learned their identities.

Throughout their detention on the chase boat and the Charles Sexton, the men were placed in leg irons. They were not read their Miranda rights. None were interrogated nor did any ask to speak privately with any members of the Coast Guard. However, at one point, when Petty Officer Irigoyen and Rolle were alone together, Rolle expressed his belief that Petty Officer Irigoyen was the boss and asked him to cut him some slack. Similarly, Russell told Petty Officer Irigoyen that he had fallen on hard times after his fishing boat broke down and he was unable to provide for his family.

After a few days, the men were transferred from the Charles Sexton to a second Coast Guard cutter, the Paul Clark, and Henri was repatriated to Haiti. After the transfer, Beauplant told an interpreter that he was -Haitian, that he had been stranded, and that the Bahamians had offered him a ride. He also said he had been traveling with Henri, an orphan from his village, to whom he was not related.

At trial, Rolle, the only defendant to testify, told a very different story. He claimed that Russell had tricked him and then forced him and Wilchcombe at gunpoint to bring the drugs from Haiti to the Bahamas. He also testified that Beauplant and- Henri had stowed away in his boat and that he did not know they were there until after the journey was well underway,

B. '

On May 22, 2014, Rolle, Wilchcombe, Beauplant, and Russell were indicted for conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana while on- a vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a) and (b) and 70506(a), 21 U.S.C. §§ 960(b)(1)(B) and (2)(G) and 18 U.S.C. § 2. Rolle was also charged with failing to obey a lawful order to heave to his vessel, of which he was the master, operator, and person in charge, in violation of 18 U.S.C. § 2237(a)(1).

Russell pleaded guilty to conspiracy to distribute cocaine and marijuana and agreed to cooperate with the government by testifying at the trial of Rolle, Wil-chcombe, and Beauplant.

On July 28, 2014, the trial of Rolle, Wilchcombe, and Beauplant began. The district court empaneled two juries, one for Rolle and Wilchcombe. and the other for Beauplant, to avoid any potential prejudice that could result from evidence of Beauplant’s prior criminal trafficking. All three men were convicted on all charges. The district ■ court sentenced . Beauplant and Wilchcombe principally to 120 months’ imprisonment and Rolle to 135 months’ imprisonment.

II.

A.

The defendants advance multiple arguments in urging us to conclude that the district court lacked jurisdiction over this case. We review de novo “a district court’s interpretation and application of statutory provisions that go to whether the court has subject matter jurisdiction” and review factual findings related to jurisdiction for clear error. United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002) (internal quotation marks omitted).

1.

Wilchcombe and Rolle first argue that the MDLEA violates the Due Process Clause because it does not require proof of a nexus between the United States and a defendant. Because we have previously rejected this argument, United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 704, 190 L.Ed.2d 438 (2014), they seek en banc review.

We cannot reconsider this issue, nor do we support en banc review. The text of the MDLEA does not require a nexus between the defendants and the United States; it specifically provides that its prohibitions on drug trafficking are applicable “even though the act is committed outside the territorial jurisdiction of the United States.” 46 U.S.C. § 70503(b). The Constitution and principles of international law support our interpretation of the MDLEA, Campbell, 743 F.3d at 810, and Wilchcombe and Rolle make no convincing arguments to the contrary. Further, of the other circuits to have considered this question, all but one share our view. Compare United States v. Suerte, 291 F.3d 366, 369-72 (5th Cir. 2002) (stating that the due process does not require a nexus for the MDLEA to apply outside the territorial jurisdiction of the United States), and United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (same), and United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993) (same), with United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998) (stating that the MDLEA requires a nexus). Accordingly, we reject Wilcheombe’s and Rolle’s arguments that our interpretation of the MDLEA violates due process.

2.

Rolle, Wilchcombe, and Beauplant argue that the government failed to establish jurisdiction over Rolle’s boat because the SNO obtained from the Bahamian Government does not conform to the requirements of 46 U.S.C. § 70502(c)(1)(C).

The MDLEA permits the United States to exercise jurisdiction over “a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.” 46 U.S.C. § 70502(c)(1)(C). Under the MDLEA, a foreign nation, can consent or waive objection “by radio, telephone, or similar oral or electronic means[,] and [this consent or waiver] is proved conclusively by certification of the Secretary of State or the Secretary’s des-ignee,” id. at § 70502(c)(2), although courts must still determine whether the MDLEA’s jurisdictional requirements have been met, see United States v. McPhee, 336 F.3d 1269, 1272 (11th Cir. 2003).

The defendants focus specifically on claimed defects in the language of the SNO, but we have never required the language in SNOs to precisely mirror the language contained in the MDLEA; to the contrary, we have approved of SNOs that did not. For example, in United States v. Brant-Epigmelio, 429 Fed.Appx. 860, 862 (11th Cir. 2011) (unpublished), we considered the effect of two SNOs, one of which “waived objection to the enforcement of U.S. law by the United States,” and the other of which “waived objection to the enforcement of U.S. law by the United States over the Colombian crewmember of the ... vessel.” We held that the variation in language between the two was “immaterial,” as long as “both show that the [foreign] government ... waived objection to the enforcement of United States law.” Id. at 863. In United States v. Persaud, 605 Fed.Appx. 791, 795 (11th Cir. 2015) (unpublished), we stated that the district court’s receipt of an “[SNO] stating that Jamaica waived primary jurisdiction over” the defendant meant that the district court did not err in concluding that it had jurisdiction under the MDLEA.

Here, Coast Guard Commander Fazio, a designee of the Secretary of State, certified to the district court that “the Government of the United States requested the [Bahamian Government] consent to the United States exercising jurisdiction over the vessel” and the Bahamian Government “notified the Government of the United States that it waived its right to exercise primaiy jurisdiction over the vessel.” The language informing the United States that the Bahamian Government “waived its right to exercise primary jurisdiction over the vessel” is similar to the language in the SNO that we approved in Persaud, differing only in that it mentions the vessel instead of the specific defendants. In fact, the SNO in this case actually hews closer to the MDLEA than the Persaud SNO, because both this SNO and the MDLEA speak of a waiver of jurisdiction over the vessel and not the defendants.

Although Persaud and Brant-Epigmelio do not bind us because they are unpublished opinions, we are persuaded that their approach is correct. Accordingly, we reiterate that, as long as the substance of the consent or waiver is communicated, the language contained in SNOs need not exactly track the language contained in § 70502(c)(1)(C) to satisfy the requirements of the MDLEA. The SNO in this case was sufficient to inform the United States that the Bahamian Government consented to the United States’ exercise of jurisdiction over Rolle’s vessel.

3.

Beauplant and Rolle argue here, as they did to the trial court, that the evidence at trial demonstrated that the Coast Guard misled the Bahamian Government about the documentation of the registration status of Rolle’s boat that was available to the Coast Guard when it was seeking the SNO. If the Bahamian Government had been accurately informed of the existing documentation, the defendants argue, the Coast Guard would have had to await the arrival of a Bahamian law enforcement officer before boarding the boat.

We agree with Beauplant and Rolle that the evidence presented at trial suggests that the Coast Guard may have incorrectly informed the Bahamian Government about the registration documents provided by Rolle to the Coast Guard. An affidavit from Commander Fazio, on which the district court relied before trial to determine whether the U.S. had jurisdiction over Rolle’s boat, states that when the Coast Guard initially contacted the Bahamian Government, the Coast Guard stated that they had found the registration number painted on the hull of the boat. The affidavit also states that no other registration information was provided to the Coast Guard at this time. Lieutenant Nichols’ trial testimony supports this version of events. He testified that he recovered the registration documents in one of the bags thrown overboard, and therefore the documents would not have been available to Commander Fazio when he contacted the Bahamian Government for the SNO.

At'trial, Russell provided contradictory testimony. He asserted that Rolle showed his' registration' card to the Coast Guard before the officers boarded the boat. This version of events is supported by the fact that the registration card was listed in the inventory of objects found on Rolle when he was searched.

There are multiple reasons why this inconsistency does not lead us to fault the district court’s decision to exercise jurisdiction over the defendants. First, given the contradictory evidence in the record, we cannot say that the district court committed “clear error,” Tinoco, 304 F.3d at 1114, in concluding that the facts here supported the exercise of jurisdiction. Second, even if we accept the defendants’ claim that Commander Fazio had seen Rolle’s registration card but told the Bahamian Government that he had not, this fact, in the context of this case, does not render the exercise of jurisdiction improper. The Coast Guard cannot have obtained an advantage from any such misrepresentation because Commander Fazio informed the Bahamian Government that Rolle’s boat had the registration number painted on its hull, thus permitting the Bahamian Government to check the boat’s registration if it wished to do so. Finally, despite the defendants’ assertions to the contrary, there is also no evidence in the record of bad faith or intentional misrepresentations on the part of the Coast Guard, a fact which a district court may take into account when determining whether a foreign government has consented to the United States’ exercise of jurisdiction pursuant to the MDLEA. See id. (considering whether the Coast Guard had acted in bad faith in providing inaccurate information to the Colombian government about a vessel’s registration and concluding that it did not matter because the inaccurate information did not affect the Colombian government’s response).

We accordingly reject this challenge to the district court’s exercise of jurisdiction.

B.

Wilchcombe argues that the government’s evidence only proved that he was present at the scene of the drug trafficking conspiracy, not that he participated in it. Put another way, he asserts that the government did not disprove his “mere presence” defense to the charges of conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana.

We review de novo challenges to the sufficiency of the evidence supporting a criminal conviction. United States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir. 2011). The evidence, viewed in the light most favorable to the government, must be such that “a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). “We assume that the jury made all credibility choices in support of the verdict and accept all reasonable inferences that tend to support the government’s case.” Id. (internal quotation marks omitted).

In maritime drug-trafficking cases, “[a] jury may find knowledgeable, voluntary participation from presence when the presence is such that it would be unreasonable for anyone other than a knowledgeable participant to be present.” United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985). In making this determination, a jury may consider factors such as

(1) [the] probable length of the voyage, (2) the size of the contraband shipment, (3) the ... close relationship between captain and crew, (4) the obviousness of the contraband, and (5) other factors, such as suspicious behavior or diversionary maneuvers before apprehension, attempts to flee, inculpatory statements made after apprehension, witnessed participation of the crew, and the absence of supplies or equipment necessary to the vessel’s intended use.

Tinoco, 304 F.3d at 1123. The government bears a heavier burden where the quantity of drugs is smaller; if the quantity of drugs is “large,” the government need only prove any one of the additional factors listed above. Id.

Here, the evidence is sufficient to sustain Wilchcombe’s convictions for conspiring to possess with intent to distribute and possessing with intent to distribute under the MDLEA. See id. at 1123-24 (stating that “the circumstances that were sufficient to support the appellants’' conspiracy conviction also support their conviction on the possession count” under the MDLEA). Plainly, given the relatively small size of the boat, 895 kilograms, or nearly one ton, of narcotics is a “large quantity.” See id. But even if that were not the case, ample additional evidence defeats the insufficiency argument. As Russell testified, some of the drugs were stored on deck. A reasonable jury could have inferred on the basis of this testimony that the drugs would have been obvious to Wil-chcombe at the start of the voyage. Testimony from both Russell and members of the Coast Guard permitted the jury to find that Wilchcombe had aided the boat’s attempts to evade capture by lying on the deck and holding a wire in place so that the second-engine could operate. Finally, Russell’s testimony provided evidence that Wilchcombe had close relationships with Rolle, who captained the boat; with Beau-plant;- and with Russell himself. Russell specifically testified that he had known Wilchcombe for a long time and that Wil-chcombe had spent time before the voyage getting to know the other passengers. The relationships between Wilchcombe and the crew members made it more likely that Wilchcombe knew of the presence of the drugs on the boat.

In sum, because a reasonable jury could have concluded from the government’s evidence that Wilchcombe was not simply present on Rolle’s boat but was a knowing participant in the conspiracy, we reject Wilchcombe’s argument that the evidence was insufficient to support his convictions.

C.

Beauplant and Rolle argue, that the. district court erred when it refused tq declare a mistrial based on the governments comments at trial on their silence after they were taken into custody.

The defendants did not receive a Miranda warning at any point while they were in the custody of the Coast Guard and government witnesses testified about the defendants’ silence at several points after their boat had been' intercepted. For the purposes of this discussion, we assume that the defendants were in custody from the time that the Coast Guard crew first boarded Rolle’s boat, turned off the motor, and returned to their own boat. At this time the defendants were kneeling on board their boat with their hands draped over the gunnel so that the Coast Guard could watch them. Petty Officer Irigoyen testified that the Coast Guard “made it clear that we had no intent on having a conversation” with them but did. not entirely stop them from talking to the Coast Guard or to each other. The government elicited testimony that the defendants remained quiet and did not attempt to talk to the Coast Guard.. Later, after the Coast Guard transferred the defendants to the Charles Sexton and took their photographs, two crewmembers testified that the detainees did not attempt to talk to them. In summation, the government repeatedly referred to the defendant’s silence aboard their own boat and aboard the Charles Sexton to make the argument that, if the defendants were on the ship under duress, as Rolle had testified, they would have sought help by trying to speak with members of the Coast Guard.

A district court’s decision not to grant a mistrial on the basis of comments regarding a defendant’s choice to remain silent is reviewable for abuse of discretion. United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). A defendant in custody after receiving Miranda warnings' indisputably has the right under the Fifth Amendment to remain silent. See Oregon v. Elstad, 470 U.S. 298, 304, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). The Supreme Court has stated, however, that it is constitutionally permissible to use a defendant’s post-arrest, pre-Miranda silence to impeach a defendant. Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Eleventh Circuit goes a step further. We permit the prosecution to use a defendant’s post-arrest, pre-Miranda silence as direct evidence that may tend to prove the guilt of the defendant United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) (“[T]he government - may comment on a defendant’s silence when fit occurs after arrest, but before Miranda warnings are given.”). See also United States v, Valencia, 169 Fed.Appx. 565, 574-75 (11th Cir. 2006) (unpublished) (citing Rivera for the proposition that' the government could comment on the silence of defendants who were in custody but who had not received Miranda warnings). But see United States v. Campbell, 223 F.3d 1286, 1290 (11th Cir.2000) (acknowledging a challenge to Rivera’s statement regarding the “broad use of pre-Miranda silence” but declining to “sort out this confusion”).

The defendants correctly point out that the circuit courts do hot agree as to when the government may comment on a defendant’s silence. The First, Second, Sixth, and Seventh Circuits prohibit the use of even pre-arrest silence as substantive evidence of guilt. United States v. Okatan, 728 F.3d 111, 120 (2d Cir. 2013); Ouska v. Cahill-Masching, 246 F.3d 1036, 1049 (7th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989). But see United States v. Zarauskas, 814 F.3d 509, 515-16 (1st Cir. 2016) (We assume “without deciding, that prosecutorial comment on the defendant’s pre-custodial silence violates the Fifth Amendment.”). The Ninth, Tenth, and D.C. Circuits prohibit the use of post-arrest, pre-Miranda silence as substantive evidence of guilt. United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007); United States v. Moore, 104 F.3d 377, 389 (D.C. Cir. 1997); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991). In addition to the Eleventh Circuit, the Fourth and Eighth Circuits permit the government to comment on a defendant’s silence at any time prior to the issuance of Miranda warnings. United States v. Cornwell, 418 Fed.Appx. 224, 227 (4th Cir. 2011) (unpublished); United States v. Osuna-Zepeda, 416 F.3d 838, 844 (8th Cir. 2005). See also United States v. Pando Franco, 503 F.3d 389, 395 n.1 (5th Cir. 2007) (describing circuit split on this issue).

Although the Supreme Court once granted certiorari to resolve this question, the Court ultimately decided the case on other grounds, leaving the circuit split in place. Salinas v. Texas, — U.S.-,-133 S.Ct. 2174, 2179, 186 L.Ed.2d 376 (2013). In Salmas, the Court held that a defendant’s silence in response to a question in a non-custodial interview by a law-enforcement officer was admissible as substantive evidence of his guilt because the defendant did not “expressly invoke the privilege against self-incrimination in response to the officer’s question.” Id. at 2178. The fact that the Salinas defendant was not in custody at the time of his silence was central to the Court’s determination that his silence could be used as substantive evidence of guilt. Id. at 2178, 2180. Where, as here, a suspect is in custody, he “cannot be said to have voluntarily forgone .the privilege [against self-incrimination] unless he fails to claim it after being suitably warned.” Id. at 2180 (alterations and internal quotation marks omitted). Salinas therefore does not provide support for the prosecution’s comments in this case.

Given our precedent on this issue, however, we cannot conclude that the district judge abused her discretion in declining to declare a mistrial on the basis of the challenged conduct. 'Whatever the state of the law in other circuits, in our circuit it was permissible for the government to comment on Beauplant’s silence.

In any event, any error caused by the government’s comment on Beauplant’s and Rolle’s pr e-Miranda silence that might have occurred would not warrant reversal. As to Beauplant, any such error would have been harmless in light of the ample evidence of his guilt that was presented at trial. See United States v. Davila, 749 F.3d 982, 992 (11th Cir. 2014). As for Rolle, who did testify at trial, Brecht, 507 U.S. at 628, 113 S.Ct. 1710, permitted the government to use his pr e-Miranda silence to impeach his trial testimony to the effect that Russell had coerced him into carrying the drugs and that he was frightened of Russell.

Therefore, the district court did not abuse its discretion in declining to grant a mistrial as to Beauplant and Rolle.

D.

Beauplant argues that the government violated his due process rights both by destroying the boat without photographing the central console and by repatriating Henri, whose version of what happened could have aided his defense. Because Rolle testified that Beauplant and Henri had stowed away in the boat’s center console, Beauplant believes that an examination of the boat and ■ Henri’s' testimony would have supported Rolle’s testimony.

We will not pause to address the government’s assertion that Beauplant has waived this argument based on his failure to raise it before trial because we agree with the government on the merits. See United States v. Mathis, 767 F.3d 1264, 1277 n.6 (11th Cir. 2014), cert. denied, — U.S.-, 135 S.Ct. 1448, 191 L.Ed.2d 403 (2015). Whether there was a due process violation as a result of the government’s destruction of evidence or failure to preserve evidence is a mixed question of law and fact. United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006). We review the district court’s factual determinations for clear error and its legal conclusions de novo. Id.

To establish that the destruction of evidence constitutes a violation of due process, “[a] defendant must show that the evidence was likely to significantly contribute to his defense.” Id. (internal quotation marks omitted). This means that the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence, by other reasonably available means.” Id. (internal quotation marks omitted). The defendant must also demonstrate’ that the government acted in bad faith. Id. To prove a violation of a defendant’s constitutional rights resulting from the government’s deportation of a witness, a defendant must “show that there was a reasonable basis to believe that the testimony would be material and favorable to him, and that the government had acted in bad faith in repatriating the alien[ ].” United States v. De La Cruz Suarez, 601 F.3d 1202, 1212-13 (11th Cir. 2010).

Beauplant cannot satisfy the bad faith requirement here. Nothing in the record suggests that the Coast Guard, in destroying the boat without photographing it or in repatriating Henri, acted in bad faith. In support of his claim regarding the boat’s destruction, Beauplant asserts nothing beyond the fact that the Coast Guard misallocated its resources in choosing to collect the drug bales rather than measuring and photographing the center console where Russell'testified that Beauplant hid. Such a typical and reasonable law enforcement decision about how to allocate limited resources and manpower does not permit an inference of bad faith. As for the decision to repatriate Henri, Beauplant has not made any showing that, in deciding to allow Henri to return to Haiti, the Coast Guard believed that he would provide exculpatory testimony. Speculation to that effect cannot support his claim that the Coast Guard acted in bad faith.

Accordingly, we conclude that the district court properly denied Beauplant’s motion to dismiss on this basis.

E.

Beauplant argues that the district court erred by permitting a DEA agent to testify that in 2010, the Bahamian authorities arrested. Beauplant because he was the captain of a Haitian freighter that had arrived in the Bahamas carrying 165 kilograms of cocaine and some marijuana. Beauplant asserts that, in violation of Federal Rule of Evidence 404(b), this evidence was used to establish propensity and bad character, rather than knowledge or motive.

We review for “clear abuse of discretion” a district court’s choice to admit evidence under Rule 404(b). United States v. Sterling, 738 F.3d 228, 234 (11th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 2682, 189 L.Ed.2d 224 (2014) (internal quotation marks omitted).

Evidence of prior crimes is admissible under 404(b) as long as (1) it is “relevant to an issue other than defendant’s character,” (2) the government has introduced “sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question,” and (3) the probative value of the evidence is not “substantially outweighed by undue prejudice.” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

In concluding that the evidence satisfied these three requirements, the court did not clearly abuse its discretion. First, Beauplant’s defense, as presented in Rolle’s testimony, was that he was merely a stowaway and lacked the knowledge that there were drugs on the boat and thus the intent to smuggle them. The agent’s testimony was relevant as tending to prove Beauplant’s knowledge that drugs were present and that he intended to smuggle them. The fact that he was previously arrested for captaining a boat used to smuggle drugs makes his defense less plausible, because it makes it more likely that Beau-plant could recognize when a boat is-smuggling drugs. Second, the DEA agent’s testimony was sufficient to prove Beauplant’s prior involvement in smuggling by a preponderance of the evidence. Captains are in a “special position to know of the vessel’s contents,” United States v. Garate-Vergara, 942 F.2d 1543, 1548 (11th Cir. 1991), amended sub nom. United States v. Lastra, 991 F.2d 662 (11th Cir. 1993) (per curiam), and the jury could infer that because Beauplant was the captain of the earlier boat he knew that the boat was carrying drugs. And, third, the probative value of the evidence to show Beauplant’s knowledge and intent was not substantially outweighed by its prejudice. Moreover, the district court’s standard limiting instruction mitigated whatever prejudice may have resulted from the admission of evidence. Edouard, 485 F.3d at 1346.

Accordingly, the defendants’ CONVICTIONS are AFFIRMED.

JORDAN, Circuit Judge,

concurring, in which WALKER, Circuit Judge, joins:

As the court explains, United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991), allows the government, in its casein-chief at trial, to use the post-arrest/pre-Miranda silence of a defendant as substantive evidence of guilt. We are bound by Rivera, but its reading of the Fifth Amendment is misguided and should be reconsidered en banc in an appropriate case.

Just before midnight on May 3, 2014, about 25 nautical miles from Haiti, Coast Guard officers approached Nathaniel Rolle’s boat with their firearms drawn. The officers ordered the boat’s occupants, including Mario Wilehcombe and Alteme Beauplant, to get on their knees with their hands behind their heads (and later with their hands on the gunnel of the boat). The officers also told the men on the boat that they were not free to move around and made it clear to them that they “had no intent on having a conversation .at that point.” D.E. 175 at 333.

Several hours later, after the Coast Guard had received authorization to board, and after the boat was searched, the officers put the occupants in leg irons and transferred them to a Coast Guard vessel. The occupants' were- told to write down their names, dates of birth, and nationalities on cards and were then photographed holding those cards.' After about two to three days, the occupants, still shackled, were taken to a second Coast Guard vessel. They arrived in Miami after five days at sea.

The Coast Guard officers never told Mr. Wilehcombe and Mr. Beauplant that it was permissible for them to speak, and did not give them Miranda warnings. Mr. Wil-ehcombe and Mr. Beauplant were not questioned by the officers, and aside from asking if they could have food and water, they did not speak (or ask to -speak) to the Coast Guard officers while at sea. While on the second Coast Guard vessel, Mr. Beau-plant told a Creole interpreter that he was from Haiti,- that he had been stranded on one of the islands, and that the Bahamians on the boat had offered him a ride home.

Mr. Wilehcombe and Mr.'-Beauplant did not testify at trial. The government, in its case-in-chief and over defense objection, elicited from several of the Coast Guard officers that 'Mr. Wilehcombe and Mr. Beauplant did not say anything to them while in custody aboard the Coast Guard vessels and that they did not ask to speak to any of the officers in private. The district court denied defense motions for mistrial based on the testimony pertaining to their post-arrest/pre-Mmmcto silence.

In its initial closing argument, the government argued to the jury that, had the two men not been involved in the drug-smuggling venture, they would have said something to the Coast Guard officers after they were arrested and while they were at sea. The government also returned to the post-arrest silence of Mr. Wilchcom-be and Mr. Beauplant in its rebuttal closing argument, telling the jury that, although the Coast Guard officers did not ask the men any questions, they were able to make statements if they wished, as shown by Mr. Beauplant’s conversation with the Creole interpreter.

About 50 years ago, the Supreme Court held that comments by the prosecution and instructions by the trial court on inferences which can be drawn from a defendant’s failure to testify at trial violate the Fifth Amendment, even if the jury is also instructed that a defendant has a constitutional right to not take .the stand in his own defense:

It is in substance a rule of evidence that allows the State a privilege of tendering to the jury for its consideration the fail- . ure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are the equivalent of an offer of evidence and its ac- . ceptance.

Griffin v. California, 380 U.S. 609, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Court explained that “[cjomment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ which the Fifth Amendment outlaws.” Id. at 614, 85 S.Ct. 1229 (citation omitted). The Fifth Amendment, the Supreme Court concluded, “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id. at 615, 85 S.Ct. 1229.

A decade later, the Supreme Court explained that “Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.” Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). So, “[wjhere the prosecutor, on his own initiative asks the jury to draw an adverse influence from a defendant’s silence, Griffin holds that the privilege against self-incrimination is violated.” United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).

As I see it, the government here did what the Fifth Amendment, as interpreted in Griffin, forbids. It elicited testimony about the post-arrest silence of Mr. Wil-chcombe and Mr. Beauplant in its case-in-chief, and then suggested to the jury in closing argument that their silence should be considered as substantive evidence of guilt.

Rivera, citing only to Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), held that “the government may comment on a defendant’s silence when it occurs after arrest, but before Miranda warnings are given,” Rivera, 944 F.2d at 1568. Fletcher, however, cannot bear the weight Rivera placed on it.

First, Fletcher was decided under the “fundamental fairness” standard of the Due Process Clause of the Fourteenth Amendment, and not under the Self-Incrimination Clause of the Fifth Amendment. See Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. Due process (whether of the Fifth or Fourteenth Amendment varieties) and the privilege against self-incrimination (located in the Fifth Amendment) “are not coextensive, nor do they have the same underlying rationales. There is, therefore, no principled reason ... [for the] application of a due process analysis to an inquiry about the privilege against self-incrimination.” Maria Noelle Berger, Defining the Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence be Admissible as Substantive Evidence of Guilt?, 1999 U. III. L. Rev. 1015, 1025.

Second, Fletcher addressed the use of silence to impeach a defendant during cross-examination, and not the use of silence in the government’s case-in-chief. It held that the due process clause—as interpreted in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)—permit-ted the use of post-arrest/pre-Mirawto silence on cross-examination of a defendant who took the stand at trial: “In the absence of the sort of affirmative assurance embodied in the Miranda warnings, we do not believe it violates due process of law for a State to permit cross-examination as to post[-]arrest silence when a defendant chooses to take the stand.” Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. Later cases have explained that Fletcher was decided on due process grounds using a “fundamental fairness” standard. See, e.g., Wainright v. Winfield, 474 U.S. 284, 290, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (“Since Fletcher ... we have continued to reiterate our view that Doyle rests on ‘the fundamental unfairness of implicitly assuring a subject that his silence will not be used against him and then using that silence to impeach an explanation offered at trial.’ ”) (citation omitted). Here, of course, we are not dealing with the use of silence for impeachment during a defendant’s’ cross-examination.

⅝ ⅜ ⅝ ⅝ ⅜ ⅝ ⅜ ⅜ ⅜

Although the Supreme Court has held that a voluntary custodial statement taken in violation of Miranda may be used on cross-examination to impeach a testifying defendant, the rationale for this rule is that a defendant who testifies at trial, and who places his credibility on the line, cannot use the Fifth Amendment as “a shield against contradictions of his untruths.” Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (citation and internal quotation marks omitted). See also id. at 226, 91 S.Ct. 643 (“The shield of Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”). Significantly, when evidence is offered in this manner, it is probative not of the defendant’s guilt but of his credibility. The two factual premises underlying the Harris rationale—(1) a defendant who makes a statement to the police, and (2) then testifies in a way that contradicts that statement—are missing here. Mr. Wilchcombe and Mr. Beauplant made no statements to the Coast Guard officers in the five days they were in custody, and did not testify at trial.

I agree with what Judge Sentelle wrote for the D.C. Circuit in holding that the Fifth Amendment prohibits the government from using post-arrest/pre-Miranda silence as substantive evidence of guilt in its case-in-chief:

[N]either Miranda nor any other ease suggests that a defendant’s protected right to remain silent attaches only upon the commencement of questioning as opposed to custody. While a defendant who chooses to volunteer an unsolicited admission or statement to the police before questioning may be held to have waived the protection of that right, the defendant who stands silent must be treated as having asserted it.

United States v. Moore, 104 F.3d 377, 385 (D.C. Cir. 1997).

If there is going to be a trigger for the constitutional protection of silence, that trigger should be custody and not the recitation of Miranda warnings. The right to remain silent comes from the Fifth Amendment, not Miranda, and exists independently of Miranda warnings. See United States v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion) (explaining that Miranda warnings “protect[ ]” the fundamental right secured by the Self-Incrimination Clause of the Fifth Amendment). Accordingly, “[i]t simply cannot be the case that a citizen’s protection against self-incrimination only attaches when officers recite a certain litany of his rights.” Moore, 104 F.3d at 385."

But if we Want to talk about Miranda, that decision contains broad language which supports the view that it is custody that matters when the issue is the use of a defendant’s silence as substantive evidence: “[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at .trial the fact that he stood mute or claimed his privilege in the face of an accusation.” Miranda, 384 U.S. at 468 n.37, 86 S.Ct. 1602.

' The'Court-in Miranda also made clear that the warning was just that: a warning that informs the suspect of the privilege against self-incrimination that he already possesses while in police custody and of the consequences of forgoing it. See id. at 469, 86 S.Ct. 1602 (“The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed.in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system— that he is not in the presence of persons acting solely in his interest.”). Nothing in Miranda suggests that the warning is the source of the right to remain silent. It thus makes no sense to conclude, as Rivera did, that whether a defendant possesses the privilege against self-incrimination is derived from issuance of the warning and not whether he is in custody. Even Justice Scalia, a critic of Griffin, viewed Miranda as a broad prohibition against the use of post-arrest silence by the government in its case-in-chief. See Mitchell, 526 U.S. at 338 n.2, 119 S.Ct. 1307 (“[W]e did say in Miranda ... that a defendant’s post-arrest silence could1 not be introduced as substantive evidence against him at trial.”).

In this case the Coast Guard officers chose not to give Miranda warnings to Mr. Wilehcombe and Mr. Beauplant while they were kept in shackles for five days at sea, and after they were told that the officers were not interested in having a conversation. In, my view, the Fifth Amendment’s privilege against self-incrimination did not permit the government to use the post-arrest silence of Mr. Wil-ehcombe and Mr. Beauplant—neither of whom testified at trial—as substantive evidence of their guilt in its case-in-chief. Cf. United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (federal case decided on evidentiary grounds: “In most circumstances silence is so ambiguous that it is of little probative force.”).

I join Judge Walker’s opinion for the court with the hope that, one day, we will revisit Rivera.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . I recognize that Griffin has its critics. See, e.g., Mitchell v. United States, 526 U.S. 314, 331, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (Scalia, J., dissenting); Albert Alschuler, “A Peculiar Privilege in Historical Perspective,” in The Privilege Against Self-Incrimination: Its Origins and Developments 199-202 (1997). But it also has its supporters. See, e.g., Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 52, 73-74 (1997); Stephen J. Shulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 U. Va. L. Rev. 311, 330-35 (1991). More importantly for us, however, Griffin has not been overruled, and remains binding precedent.

      . Given the other evidence presented against Mr. Wilchcombe and Mr. Beauplant, I do not think this case is a good vehicle for en banc reconsideration of Rivera.


source: Caselaw Access Project

author: MARCUS, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. F. Gordon SPOOR, as the Personal Representative of the Estate of Louise P. Gallagher, as the TRUSTEE OF the LOUISE PAXTON GALLAGHER REVOCABLE TRUST, Defendant-Appellee, Paxton Media Group, LLC, Intervenor-Appellee.
    No. 15-12877
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/04/2016

      Rachel Ida Wollitzer, U.S. Department of Justice, Chief Appellate Section Tax Division, Washington, DC, Caroline D. Cir-aolo, Chief Counsel—IRS, Washington, DC, Gregory L. Jones, U.S. Department of Justice, Tax Division, Washington, DC, Teresa E. McLaughlin, U.S. Department of Justice, Chief Appellate Section Tax Division, Washington, DC, for Plaintiff-Appellant.
    Hala A. Sandridge, Darren Farfante, Buchanan Ingersoll & Rooney, PC, Tampa, FL, for Intervenor-Appellee.
    William G. Lazenby,- Law Office of Ellison & Lazenby, PLLC, St. Petersburg, FL, Steven L. Brannock, Brannock & Humphries, PA, Tampa, FL, Ceci Berman, Brannock & Humphries, PA, Tampa, FL, for Defendant-Appellee.
    Before MARCUS and WILLIAM PRYOR, Circuit Judges, and LAWSON, District Judge.

       Honorable Roger H. Lawson, Jr., United States District Judge for the Middle District of Georgia, sitting by designation.

   MARCUS, Circuit Judge:

In this tax case, the United States appeals the district court’s determination that commissions claimed by Defendant F. Gordon Spoor as personal representative of the Louise P. Gallagher Estate and as trustee of the Louise Paxton Gallagher Revocable Trust have priority over a special deferred estate tax lien on property designated by agreement under I.R.C. § 6324A. Our review, aided by oral argument, of the text and structure of § 6324A leads us to the opposite conclusion. We agree with the United States that special estate tax liens on property designated by § 6324A, unlike estate tax liens on the gross estate pursuant to § 6324, are not subject to an executor’s claims for administrative expenses. We also hold that Spoor’s administrative expenses do not take -priority over income tax liens imposed pursuant to § 6321.

I.

The basic facts are not in .dispute. On October 17, 1989, Louise Paxton Gallagher created the Louise P. Gallagher Revocable Trust (“Trust”). When Gallagher died on July 5, 2004, the Trust contained 3,970 membership units (later redenominated as 39,700 units) in Paxton Media Group, LLC (“Paxton”), a privately held and family-owned newspaper publishing company. Defendant F. Gordon Spoor is the personal representative of Gallagher’s estate as well as the trustee of the Trust.

On September 30, 2005, Spoor filed a Form 706 federal estate tax return on behalf of the Estate. The tax return valued the Estate .at $36,624,546, of which $34,936,000 reflected the Paxton membership units held in the Trust. The return reported a federal estate tax liability of $15,524,223. Spoor claimed a $1,086,265 deduction for his personal representative fee for administering the Estate. The IRS challenged the valuation of the Paxton units, and the Estate filed a petition in Tax Court to contest the deficiency determination. The Tax Court valued the Paxton units at $35,761,760, and assessed an additional estate tax liability and failure to pay penalties totaling $401,743.89.

On its estate tax return the Estate elected to defer and pay its estate tax liability in ■ ten equal installments, pursuant to I.R.C.- § 6166. The Estate made tax payments totaling $3,007,364.83 in 2005, and a payment of $687.70 in March 2006. The Estate made additional payments of between $1.7 million and $1.8 million each in April of 2006, 2007, and 2008. In August 2010, the Estate agreed to the creation of a special deferred estate tax lien on the Paxton units pursuant to § 6324A. The IRS recorded notice of the lien in the public records of McCracken County, Kentucky, on September 3, 2010. By 2012 the value of the Paxton units had become less than the unpaid portion of the deferred tax and interest, and the IRS demanded additional collateral from the Estate'. When the Estate was unable to provide additional collateral within 90 days, the IRS accelerated the remaining deferred tax obligations. As of September 10, 2013, the remaining' estate tax, penalties, and interest totaled $10,483,006.47. Because the Estate also failed to pay its reported income taxes, as of September 2013 the • Estate owed an additional $551,106.39 in income tax, penalties, and interest. Pursuant to § 6321, the failure to pay income tax liabilities resulted in federal tax liens attaching to the Estate beginning on September 20, 2010.

On September 17, 2013, the United States filed a complaint in the United States District Court for the Middle District of Florida against the Estate and Trust to foreclose.the designated property lien, under § 6324A and the income tax liens. Spoor did not dispute the validity or amount of the IRS liens, and on September 26, 2014, the district court granted summary judgment in favor of the United States on its right to foreclose its tax liens on the Paxton units. Spoor filed a cross-motion for summary judgment, asserting that his claim to administrative expenses took priority over the government’s liens. At the time of summary judgment, Spoor had paid himself $600,000 of his $1,086,265 claim, leaving $486,265 yet to be paid. According to Spoor, the value of Paxton units owned by the Estate had fallen to approximately $2 million. Because the estate taxes take priority over the unpaid income taxes, and the Estate’s assets are insufficient to cover both the estate taxes and Spoor’s commissions, the key question is whether estate taxes take priority over Spoor’s commissions.

The district court entered summary judgment in favor of Spoor. The court held that § 6324A is “silent as to the priority of claims which arise prior to a federal tax lien.” To resolve the question, the- court relied on the common-law principle that “the first in time is the first in right.” Because Spoor’s administrative expense claim, as filed with the Form 706 tax return in 2005, arose prior to the tax liens that were recorded and assessed in September 2010, the court concluded that Spoor’s claim had priority. The court further held that this result was supported by public policy considerations, because estates might not be administered if personal representatives were not confident that they would be compensated for their efforts, The United States timely, appealed this adverse portion of the court’s order.

II.

We review a district court’s grant of summary judgment de novo. See Boim v. Fulton Cty. Sch. Dist., 494 F.3d 978, 982 (11th Cir. 2007). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Clemons v. Dougherty Cty., 684 F.2d 1365, 1368 (11th Cir. 1982).

The priority of federal tax liens against competing claims is governed by federal law. Aquilino v. United States, 363 Ü.S. 509, 513-14, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338, 1344 (11th Cir. 2010). “Federal tax liens do not automatically have priority over all other liens. Absent provision to the contrary, priority for purposes of federal law is governed by the common-law principle that ‘the first in time is the first in right.’ ” United States v. McDermott, 507 U.S. 447, 449, 113 S.Ct. 1526, 123 L.Ed.2d 128 (1993) (quoting United States v. New Britain, 347 U.S. 81, 85, 74 S.Ct. 367, 98 L.Ed. 520 (1954)).

III.

A.

We begin with an overview of the relevant tax lien, statutes. Generally, when a taxpayer fails to pay a tax, that amount, plus interest and penalties, becomes a lien in favor of the United States upon all property belonging to the taxpayer. § 6321. The lien arises at the time the tax assessment is made. § 6322. Until the lien is recorded, it does not have priority against any purchaser, holder of a security interest, mechanic’s -lienor, or judgment lien creditor. § 6323(a). Once the lien is recorded, it may still be primed by various other claims enumerated in § 6323(b), such as by certain purchasers who do not have actual notice or knowledge of the lien. § 6323(b)(1)(A).

Liens for estate taxes operate slightly differently. Under § 6324, - the estate -tax lien arises automatically from the date of death, and attaches to the- gross estate, “except that such part of the gross estate as is used .for the - payment- of charges against the estate and expenses of its administration .,. shall be divested of such lien.” .§ 6324(a)(1). The estate tax lien' is not valid against a mechanic’s lienor or any of the interests that prime general tax liens listed in § 6323(b). § 6324(c)(1).

An alternative to this gross estate tax lien is available if more than 35 percent of the value of the adjusted gross estate is attributable to an interest.in a closely held business. § ■ 6166(a)(1). Then, the executor may elect to pay the tax in up to ten equal installments, with the first, payment due up to five years from the payment due date that would otherwise apply. Id.; § 6166(a)(3). The deferred amount of estate tax, plus any-interest, penalties, and costs, becomes a lien in favor of the United States. § 6324A(a). As collateral, the executor may identify “section 6166 lien property” in lieu of the § 6324 gross estate lien after receiving written consent from each person having an interest in the designated property. § 6324A(a), (c), (d)(4). The maximum value of the property which the United States may require as § 6166 lien property shall not be greater than the deferred amount and required interest, taking into account any encumbrance on the property such as a lien on farm property. § 6324A(b)(2). Until the special lien is recorded, it is not valid against any purchaser, holder of a security interest, mechanic’s lien, or judgment lien creditor. § 6324A(d)(l). Even after the special lien is recorded, it is not valid against certain other interests including real property tax and special assessment liens. § 6324A(d)(3).

If the value of the property designated by the agreement ever becomes less than the unpaid portion of the deferred tax and interest amount, the government may require that additional property be added to the agreement, although in no case may the value of the designated property exceed the unpaid portion of the tax liability. § 6324A(d)(5). If property is not provided within 90 days to satisfy the liability, such failure accelerates payment obligations of the deferred portion. Id.

B.

1.

Spoor argues that we should apply the common law “first in time is first in right” principle because federal law does not provide otherwise. Under that approach, Spoor contends that his claim for commissions takes priority over the government’s special estate tax lien because his commissions claim arose before the lien was recorded. As we see it, however, the text and structure of § 6324A do not permit an executor’s administrative expenses to prime a § 6324A estate tax lien. Additionally, although § 6324A does not mention administrative expenses and some decisions of the U.S. Supreme Court suggest that the common law principle applies when a statute is silent, we need not decide whether Spoor would prevail under the common law principle. Spoor’s claim for commissions is not a lien and therefore is not governed by the principle.

“Context is a primary determinant of meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). When interpreting a statute, we may discover the meaning of one section by reading it in context with surrounding sections. Id. As Sir Edward Coke explained in 1628, “[I]t is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.” 1 Edward Coke, The First Part of the Institutes of the Laws of England, or a Commentary upon Littleton § 728, at 381a (1628; 14th ed. 1791), as quoted in Scalia & Garner, Reading Law at 167. Thus, we begin our inquiry by comparing the two sections governing estate tax liens, and we notice a stark difference. Namely, the special property lien—unlike the gross estate lien—does not exclude amounts related to administrative expenses from the lien. While § 6324 provides that the estate tax “shall be a lien upon the gross estate ... except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration,” § 6324(a)(1), § 6324A simply states that the deferred estate tax “shall be a lien in favor of the United States on the section 6166 lien property,” § 6324A(a).

In deciding not to repeat § 6324’s exclusion for administrative expenses in § 6324A, Congress refused to give priority to administrative expenses on special liens. “A familiar principle of statutory construction ... is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.” Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006); see also Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (“[Wjhere Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983))). Because Congress excluded administrative expenses from one type of estate tax lien but not the other type, a fair reading suggests the statute does not give administrative expenses priority over special property hens. Thus, the United States’ special property lien on the Paxton units should not be subject to Spoor’s claim for administrative expenses.

Second, we can draw a similar inference from the priorities and exclusions listed in § 6324A. The plain language of '§ 6324A does not contain an exception for administrative expenses, despite clearly listing a number of other exceptions. Section 6324A provides that four types of interests take precedence over a § 6324A lien if they arise before the lien is recorded: purchasers, security interests, mechanic’s liens, and judgment liens. § 6324A(d)(l). The statute also lists three types of interests that take precedence over a § 6324A lien even if they arise after the lien is recorded: real property tax and special assessment liens, mechanic’s liens for the repair or improvement of real property, and interests arising from real property construction of improvement financing agreements. § -6324A(d)(3). The three “superpriorities” listed in § 6324A are more selective than the eleven interests that can prime a recorded § 6324 lien. §§ 6324(c), 6323(b). Moreover, these “su-perpriorities” only come into play when the government permits them because an executor cannot designate encumbered property to satisfy a special hen unless the government agrees. § 6324A(c). The seven delineated categories of interests that may take priority over a § 6324A lien conspicuously do not include an executor’s interest in administrative expenses. “The canon of statutory construction that the inclusion of one implies the exclusion of others is well-established.” United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993); accord Sca-lia & Garner, Reading Law at 107. “When Congress provides exceptions in a statute,” the proper inference “is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.” United States v. Johnson, 529 U.S. 53, 58, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). Notably, § 6324A does not simply parrot or adopt the priorities and exceptions of § 6324. Rather, Congress considered which interests should take priority over a § 6324A lien and decided on a narrower list than the interests that take priority over a § 6324 lien. As relevant here, Congress did not include an exception for administrative expenses, and we, therefore, do not create such a priority by implication.

' Third, we note the difference in how the two types of estate tax liens may arise. A § 6324 lien is imposed automatically by law from the date of the decedent’s death. § 6324(a)(1). A § 6324A lien, in contrast, arises only if the executor elects to defer taxes under § 6166 and each person with an interest in the property designated by the executor consents in writing pursuant to § 6324A(c). The express allowance for the exclusion of administrative expenses is thus appropriate for the § 6324 lien upon the gross estate because that lien attaches automatically to all of the estate’s assets that might be used to pay the executor’s expenses. The special § 6324A lien, on the other hand, attaches only to property chosen by the executor if the executor chooses to defer estate tax payments. The discretion and control provided to the executor under § 6324A allows the executor to allocate other estate property to fund administrative expenses. Congress did not heed to exclude certain property from the § 6324A lien because, unlike with the § 6324 lien, the! executor himself can seek to ensure the § 6324A lien does not attach to property necessary to pay his expenses and commissions.

Fourth, the two types of estate tax liens arise at different periods of the administration of the estate. A § 6324 lien arises from the date of death, whereas a § 6324A lien arises “at the time the executor is discharged from liability under section 2204 (or, if earlier, at the time notice is filed).” §§ 6324(a)(1), 6324A(d)(2). Here, the estate did not elect to designate- a § 6324A lien until 2010, six years after Gallagher had died. Additionally, the agreement identifying the § 6166 lien property must designate a responsible person to pay the deferred estate tax payments and communicate with the IRS as necessary. § 6324A(c)(2). Thus, while the § 6324 lien will arise before the executor has administered the estate, the §. 6324A lien will not arise until the executor has been discharged or has no further duties regarding the special, lien property. This means that § 6324A provides the executor an opportunity to designate property for his own expenses before consenting to a designated property lien. This textual construction defeats Spoor’s argument that an alternative interpretation is needed, to assure executors that they will be compensated for their efforts. The purpose of the two statutes, as expressed in the text, is plainly to provide the executor with a special opportunity to defer certain tax payments and designate property of his choice for a special lien. The presence of such an additional opportunity is unlikely to deter an executor from administering an estate—if he does not desire the creation of a special lien, then he is not compelled to designate one. Moreover, the executor’s power to choose which property will be subject to the § 6324A lien enables him to organize the estate so that other assets are reserved to pay his personal commissions. If the executor neglects to set aside assets for these and other administrative expenses, nothing in § 6324A permits him to .then offset those expenses against the property that he specially designated to secure a § 6324A lien. The voluntary nature of this lien ensures that estates will continue to be administered even if § 6324A is enforced as written.

Fifth, reading § 6324’s exception for administrative expenses into § 6324A would undermine § 6324A by rendering the estate’s tax liability permanently un-dersecured. We favor an interpretation that furthers the manifest purpose of a statute so long as the interpretation is textually permissible. Scalia & Garner, Reading Law at 63. While the lien provided under § 6324 is imposed on the gross estate, the § 6324A lien applies, only to designated property, the value of which is strictly limited:

(2) Maximum value of required property. The maximum value of the property which the Secretary may require as section 6166 lien property with respect to any estate shall be a value which is not greater than the sum of—
(A) the deferred amount, and
(B) the required interest amount.
For purposes of the preceding sentence, the value of any property shall be determined as of the date prescribed by section 6151(a) for payment of the tax imposed by chapter 11 and shall be determined by taking into account any encumbrance such as a lien under section 6324B [Special lien for additional estate tax attributable to farm, etc., valuation.].

§ 6324A(b)(2). Federal regulations require that the designated property lien agreement list “all encumbrances on the property, including mortgages and any lien under section 6324B.” 26 G.F.R. § 301.6324A-l(b)(l)(iv). Because § 6324A caps the value of property that can be designated as lien property at the amount owed to the IRS, if the executor could also use this property to pay his own commissions, then the estate’s tax liability would never be fully secured. Under § 6166, the executor may postpone the first installment payment for five years, and thereafter pay in annual installments over the course of a decade. § 6166(a). In return for permitting this deferral, the United States reasonably requires full collateral.

Not only is the government forbidden from accepting collateral in excess of the value of the estate’s tax liability, but neither may the estate permit the value of the collateral to fall below the owed sum. The statute provides:

If at any time the value of the property covered by the agreement is less than the unpaid portion of the deferred amount and the required - interest amount, the Secretary may require -the addition of property to the agreement (but he may not require under this paragraph that the value of the property covered by the agreement exceed such unpaid portion).

§ 6324A(d)(5). Thus, it is apparent from the text of the statute that the value of the property designated as lien property will precisely track the value of the tax obligation owed by the estate. Allowing the executor to pay himself with the designated property would defeat this clear textual purpose.

_ Sixth and finally, we note that a'§ 6324A lien may substitute for the bond that otherwise may be required under § 6165 to secure . deferred. tax liabilities. § 6324A(d)(6). Generally, the government may require a bond of up to double the amount of the tax liability when an extension of time to pay has been granted. § 6165. That § 6324A permits a special lien capped at the amount of the tax liability in lieu of a larger bond further suggests that the special lien provision does not imply a priority exception for administrative expenses. Just as taxpayers may not reduce the bond required under § 6165 to pay personal commissions, neither may they deduct such commissions from the § 6324A lien that they may elect in place of a bond. Together, these six considerations lead us to the conclusion that the statute does not permit an executor to pay his own commissions from property designated as § 6324A lien property.

2.

Spoor argues that because the statute does not mention administrative expenses, his claim for commissions has priority under the common law principle of “the first in time is the first in right.” We disagree. Spoor cites two Supreme Court cases for the first-in-time principle. First, in United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954), the Court had to determine whether federal tax liens on a property took priority over competing municipal liens. Id. at 82, 74 S.Ct. 367. In an earlier version of § 6323, federal law provided that an unrecorded federal lien is not valid as against “any mortgagee,- pledgee, purchaser, .or judgment creditor,” but the law said nothing about municipal liens. Id. at 87 n.10, 74 S.Ct. 367, The Court concluded that the first-in-time principle governs where federal law has not otherwise created “a schedule of priority.” Id. at 85-86, 74 S.Ct. 367. “[A]s to any funds in excess of the amount necessary to pay the mortgage and judgment creditors,” the Court said, “Congress intended to assert the federal lien.” Id. at 88, 74 S.Ct. 367. “There is nothing in the language of [§ 6323] to show that Congress intended antecedent federal taxes to rank behind any but the specific categories of interests set out therein.” Id. The Court remanded to the state court to re-determine the order of priority of the various liens encumbering the property. Second, in United States v. McDermott, 507 U.S. 447, 113 S.Ct. 1526, 123 L.Ed.2d 128 (1993), the Court adjudicated the competing priorities of a federal tax lien and a private creditor’s judgment hen. Id. at 448, 113 S.Ct. 1526. After reciting that “[a]bsent provision to the contrary, priority ... is governed by the common-law principle that the first in time is the first in right,” id. at 449, 113 S.Ct. 1526 (internal quotation marks omitted), the Court heid that the federal lien had priority over a judgment hen because the federal hen was filed before the property was acquired and the judgment hen did not become perfected until the property was acquired, id. at 450-53, 113 S.Ct. 1526.

Although the first-in-time principle applies when a federal tax hen competes for priority with other hens and the federal statute does not allocate priority, the principle does not govern this appeal because Spoor’s claim for commissions is not a hen. A hen is often defined as “[a] charge or security or incumbrance upon property.” Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 198, 127 S.Ct. 2352, 168 L.Ed.2d 85 (2007) (quoting Lien, Black’s Law Dictionary (4th ed. 1951)); see also Fla. Stat. § 727.103(11) (“‘Lien’ means a charge against or an interest in property to secure payment of a debt or performance of an obligation....”). Although Florida statutes grant Spoor a right to remuneration, they stop short of creating a lien: “A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services,” Fla. Stat. § 733.617(1), and “[a] trustee is entitled to be reimbursed out of the trust property ... for reasonable expenses,” id. § 736.0709(1). Neither statute grants a security interest in property. Yet Florida law expressly provides for hens in circumstances not applicable here, which supports our reading that the right to a commission does not create a lien. Id. § 736.0709(2) (“An advance by the trustee of money for the protection of the trust gives rise to a hen against trust property to secure reimbursement with reasonable interest.”). Because Spoor does not have a hen on the property, the common law rule that “first in time is first in right” does not apply. Accordingly, the federal hen on the property designated under § 6324A takes priority over Spoor’s claim for commissions.

C.

Because the Paxton units are of insufficient value to satisfy the estate tax liability, it is of little moment whether Spoor’s claim for commissions or the government’s § 6321 income tax hen would be next in line for payment. But if the fortunes of the newspaper industry turn by the time the Paxton units are liquidated, we agree with the United States that the income tax hen takes priority over the Estate’s administrative expenses.

We reach this conclusion for many of the same reasons we determined that Congress granted priority to § 6324A liens. As with the exceptions and priorities relevant to the special estate lien codified at § 6324A(d)(l) and (3), we read the exceptions and priorities listed in § 6323(a) and (b) as controlling—at least where the moving party does not have a perfected lien. Congress carefully enumerated which interests take priority over an unrecorded tax lien, and which take priority over certain recorded liens. Notably, unlike the general § 6324 estate tax lien on the gross estate, Congress did not except property from the lien to pay personal commissions.

Additionally, the common law rule that the “first in time is the first in right” does not apply here because Spoor’s claim is not a lien. We agree that the first-in-time principle applies when a federal tax lien competes for priority with other liens and Congress has not allocated priority. We decline, however, to grant priority to other interests, such as an executor’s commissions.

IRS regulations provide:

Federal law controls in situations in which a federal tax lien competes with any interest under state law or by contract. However, the Service may in its discretion not assert priority of its federal tax lien over reasonable administrative expenses of.the estate, to the extent that such expenses are not covered by an insurance policy, trust or other similar benefit that covers the cost of administrative expenses of the estate. State statutes may limit the amount of reasonable administrative expenses permitted to be paid during probate.

I.R.M. 5.5.2.4(B) (emphasis in original). Here, the IRS has chosen to assert the priority of its federal tax lien over the administrative expenses of the estate. As we see it, Congress has permitted it to do so. Accordingly, we reverse the order below and remand for proceedings not inconsistent with this opinion.

REVERSED.

      . Unless noted otherwise, all statutory citations are to the Internal Revenue Code.

      . Paxton intervened to protect its corporate interests, such as its subchapter-S corporate status, in the event of a foreclosure sale of the Trust’s membership units.

      . Spoor did not list his personal commissions as an encumbrance on the special lien property.


author: WILLIAM PRYOR, Circuit Judge:

text:
    JANE DOE I, Jane Doe II, et al., Plaintiffs, Melissa Milward, Elyse Ugalde, et al., Plaintiffs-Appellants, v. VALENCIA COLLEGE BOARD OF TRUSTEES, in its official capacity, Defendant, Linda Shaheen, in her individual capacity, Barbara Ball, in her individual capacity, et al., Defendants-Appellees.
    No. 15-15240
    United States Court of Appeals, Eleventh Circuit.
    Filed: 10/04/2016

      Justin Matthew Eisele, Gagnon Eisele, PA, Winter Park, FL, Matthew Aaron Kudzin, Covington & Burling, LLP, Washington, DC, for Plaintiffs-Appellants.
    Jeffrey T. Kuntz, GrayRobinson, PA, Fort Lauderdale, FL, Richard E. Mitchell, Sara Huff, GrayRobinson, PA, Orlando, FL, for Defendants-Appellees.
    Lawrence G.. Walters, Walters Law Group, Longwood, FL, Christopher Robert Dillingham, II, Gagnon Eisele, PA, Winter Park, FL, David Andrew Cortman, Alliance Defense Fund, Lawrenceville, GA, for Amicus Curiae.
    Before MARCUS and WILIAM PRYOR, Circuit Judges, and LAWSON, District Judge.

       Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide two issues: whether student speech that objects to the pedagogy of officials of a public college is “school-sponsored” expression under the First Amendment and whether an invasive ultrasound constitutes a “search” under the Fourth Amendment when performed for instructional reasons instead of investigative or administrative reasons. After several employees of Valencia College encouraged students to submit voluntarily to invasive ultrasounds performed by peers as part of a. training program in sonography, some students objected. The employees then allegedly retaliated against the objecting students and successfully pressured two students to undergo the procedure. The students filed a complaint against the employees, which the district court dismissed for failure to state a claim. Because the district court erroneously classified the students’ speech as school-sponsored expression and the district court' erroneously ruled that the ultrasound was not a search under the Fourth Amendment, we vacate the order dismissing the complaint and remand for further proceedings.

I. BACKGROUND

When reviewing an appeal from a dismissal for failure to state a claim, we accept all allegations in the complaint as true. The students—Melissa Milward, Elyse Ugalde, and Ashley Rose—are former sonography students at Valencia College, a public college in Florida. The so-nography program at Valencia is highly competitive and admits only 12 students per year. At the time, Barbara Ball was the chair of the program, Linda Shaheen was the clinical and laboratory coordinator, Maureen Bugnacki was a laboratory technician, and Suda Amodt was a laboratory and physics instructor. Each employee is a defendant in this appeal. All three students quit the program because the employees had their students perform transvaginal ultrasounds on each other and retaliated against the students for objecting.

A transvaginal ultrasound is used to detect problems with a woman’s fertility, among other uses. It requires inserting a probe into- the vagina, which allows the sonographer to see the woman’s cervix and other reproductive organs. Receiving a transvaginal ultrasound is invasive and can be embarrassing. One of the students who would perform the procedure was male. The probe is also rather large and can be painful for some women. It requires heavy lubrication, and sometimes the technician will stimulate the patient to help insert the probe.

Although the transvaginal ultrasounds were purportedly voluntary, in practice, the employees required students to perform them on each other. At the orientation for new students, a second-year student explained, that the employees believed female students should undergo the procedure to become better, technicians. If students refused, the employees would browbeat them and threaten their academic standing as well as their future careers. For example, when Milward and Ugalde complained to Ball about the ultrasounds, Ball told them they could find another school if they did not wish to be probed. When Milward complained to Shaheen about the ultrasounds, Shaheen responded that she would suffer academically and professionally if she refused to participate. The employees also threatened to lower the students’ grades, and Bugnacki threatened to blacklist them at the local hospitals. Milward and Ugalde eventually submitted to the transvaginal ultrasounds. But Rose refused. As punishment, the employees did not allow Rose to watch the other students perform the ultrasounds. Amodt also threatened to bar Rose from a local hospital, gave Rose two failing grades, and yelled at Rose for an hour until she had a panic attack.

In May 2015, the students sued Ball, Shaheen, Bugnacki, Amodt, and the Board of Trustees of Valencia College, The Board is no longer a party. In their second amended complaint, the students allege that the employees violated their rights under the First and Fourth Amendments, 42 U.S.C. § 1983. Specifically, all three students allege that the employees retaliated against them for speaking out against the ultrasounds, and Milward and Ugalde also allege that the ultrasounds were an unconstitutional search. The students also allege that the employees conspired to violate their rights, 42 U.S.C. § 1983. The students seek compensatory damages, punitive damages, injunctive relief, and fees and costs. Shortly after the students filed their complaint, the employees ended peer-to-peer transvaginal ultrasounds.

The district court dismissed the students’ complaint for failure to state a claim. The district court rejected the students’ claim under the First Amendment because they had not engaged in protected speech. The district court concluded that under the test from Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the students’ speech enjoyed only limited protection and could be overridden by the employees’ legitimate pedagogical choices. The district court also rejected the students’ claim under the Fourth Amendment because the transvaginal ultrasounds were not a search. A search must be “motivated by investigatory or administrative purposes,” according to the district court, and the transvaginal ultrasounds were done for educational purposes only. Milward v. Shaheen, 148 F.Supp.3d 1341, 1348 (M.D. Fla. 2015). Because the district court ruled that the employees did not violate the students’ constitutional rights, the district court also rejected the conspiracy claim and held that the employees were entitled to qualified immunity. Id.

II. STANDARD OF REVIEW

“We review de novo the dismissal of a complaint for failure to state a claim, and we accept all plausible factual allegations in the complaint.” Evanto v. Fed. Nat’l Mortg. Ass’n, 814 F.3d 1295, 1297 (11th Cir. 2016).

III. DISCUSSION

We divide our discussion into two parts. First, we explain why the district court erroneously classified the students’ speech as “school-sponsored” expression. Second, we explain why the district court erroneously concluded that an invasive ultrasound conducted for instructional reasons is not a search under the Fourth Amendment.

A. The District Cowl Erroneously Classified the Speech As School-Sponsored Expression.

The students argue that the employees violated the First Amendment by retaliating against them for speaking out against the transvaginal ultrasounds. “To establish a First Amendment retaliation claim, the plaintiff must show ‘first, that his speech or act was constitutionally protected; second, that the defendant’s retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech.’ ” Keeton v. Anderson-Wiley, 664 F.3d 865, 878 (11th Cir. 2011) (quoting Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). The employees argue, and the district court agreed, that the students’ speech is not protected under the First Amendment.

The parties primarily disagree about how to classify the students’ speech. In evaluating student speech, we consider “the special characteristics of the school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). We identify four classifications of student speech in the classroom: “vulgar expression, pure student expression, government expression, and school-sponsored expression.” Bannon v. Sch. Dist. of Palm Beach Cty., 387 F.3d 1208, 1213 (11th Cir. 2004). Pure student expression is “student expression that merely happens to occur on the school premises.” Id. It is governed by the standard in Tinker. That is, “schools must tolerate such expression unless they can reasonably forecast that the expression will lead to ‘substantial disruption of or material interference with school activities.’ ” Id. (quoting Tinker, 393 U.S. at 514, 89 S.Ct. 733). School-sponsored expression, by contrast, includes only expressive activities that meet three qualifications: 1) “students, parents, and members of the public might reasonably perceive [the activity] to bear the imprimatur of the school”; 2) the faculty supervises the activity; and 3) the activity, by design, imparts knowledge or skills to students or audiences. Hazelwood, 484 U.S. at 271, 108 S.Ct. 562. It is governed by the standard in Hazelwood: “schools may censor [it] so long as their actions are reasonably related to legitimate pedagogical concerns.” Bannon, 387 F.3d at 1213-14.

The district court assessed the students’ speech under Hazelwood, but that framework does not apply to this appeal. The speech at issue—the students’ complaints to the employees' about the transva-ginal ultrasounds—is not school-sponsored expression. Private complaints from individual students do not “bear the imprimatur of the school.” See id. at 1214. The employees rely on our decision in Keeton, which applied Hazelwood to a college student who wanted to counsel students that “it was not okay to be gay” during the college’s training program for future counselors. 664 F.3d at 868. But' counseling by a student-counselor during a college’s training program bears the imprimatur of the school. See id. at 875 (“[T]he clinical practicum, which Keeton seeks to participate in, is a ‘school-sponsored expressive activity],’ as those who receive counseling in the program and members of the general public ‘might reasonably perceive [it] to bear the imprimatur of the school.’ ” (second and third alterations in original) (quoting Hazelwood, 484 U.S. at 271, 108 S.Ct. 562)). Additionally, a student-counselor’s participation in a college training program is both “supervised by faculty members and designed to impart particular knowledge or skills.” Id. In this appeal, the students’ objections did not bear the imprimatur of the school, were not supervised by faculty, and were not designed to impart particular knowledge or skills.

Instfead of assessing the students’ speech as school-sponsored expression under Hazelwood, the district court should have evaluated it as pure student expression under Tinker because it “merely happened] to occur on the school premises.” Bannon, 387 F.3d at 1213. Accordingly, the employees must tolerate the students' complaints about the transvaginal ultrasounds “unless they can reasonably forecast that the expression will lead to ‘substantial disruption of or material interference with school activities.’ ” Id. (quoting Tinker, 393 U.S. at 514, 89 S.Ct. 733). We vacate the order dismissing the students’ claim under the First Amendment.

B. The Ultrasounds Were Searches Under the Fourth Amendment.

• Milward and Ugalde argue that the transvaginal ultrasounds were an unconstitutional search under the Fourth Amendment. The employees argue, and the district court agreed, that no search occurred because the transvaginal ultrasounds had no “investigative” or “administrative” purpose. The district court erred.

Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, — U.S. -—, 132 S.Ct. 945, 950-51 & n.3, 181 L.Ed.2d 911 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (citing Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body ... infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616, 109 S.Ct. 1402 (internal quotation marks and citations omitted).

Although the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word “search” in the Fourth Amendment does not contain a purpose requirement. The Supreme Court explained in Soldal v. Cook County why such a requirement would be anomalous:

[T]he reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies. What matters is the intrusion on the people’s security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. As we have observed on more than one occasion, it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”

506 U.S. 56, 69, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (emphases added) (quoting Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)).

The employees, like the district court, rely on the decision of the Ninth Circuit in United States v. Attson, 900 F.2d 1427 (9th Cir. 1990), but Attson is not good law. In Attson, a drunk driver crashed his car, killing one of his passengers. Id. at 1429. At the hospital, a doctor (who was employed by the federal government) took a sample of the driver’s blood. Id. The doctor took the sample “for medical reasons alone”: he wanted to ensure the driver was not too intoxicated to receive pain medication. Id. The driver consented to having his blood taken for medical purposes, but not police purposes. Id. The driver was eventually charged with manslaughter, and a grand jury subpoenaed the results of the blood test. Id. When the driver filed a motion to suppress, .the Ninth Circuit concluded that no “search” had occurred because the, doctor was not “motivated by investigatory or administrative purposes.” Id. at 1430-81, 1433. This reasoning flies in the face of Soldal, which the Supreme Court decided two years after Attson. And the reasoning in Attson contradicts our decision in Lenz v. Winbum, where we held that a “search” occurred when a guardian ad litem went through a closet to find clothes for a child that she was removing from the home. 51 F.3d 1540 (11th Cir. 1995). Citing Soldal, we expressly rejected the argument that a search must be “motivated by an investigative purpose.” Id. at 1547. We held that “even though [the guardian] looked through [the child’s] clothes out of concern for [the child’s] comfort and not as part of any investigation, the search falls within the ambit of the Fourth Amendment.” Id. at 1548. And later, the Ninth Circuit held, without citing Attson, that people “have a legitimate expectation of privacy in being free from an unwanted medical examination, whether or not that examination entails any particularly intrusive procedures.” Yin v. California, 95 F.3d 864, 871 (9th Cir. 1996).

We acknowledge that several of our sister circuits require an investigative or administrative purpose even after Soldal in decisions involving “peeping Toms,” but we find their reasoning unpersuasive. See, e.g., Doe v. Luzerne Cty., 660 F.3d 169, 179 (3d Cir. 2011) (concluding no search occurred when a male police officer filmed a female police officer in the shower); Poe v. Leonard, 282 F.3d 123, 137 (2d Cir. 2002) (similar). For instance, the decision in Luzerne County did not even cite Soldal. The decision in Poe did, but it confined Soldal to disputes arising from an investigation by the government as an employer or in the course of an official performing a traditional governmental function. Poe, 282 F.3d at 136-37. In support, the court in Poe relied on five Supreme Court decisions, including Soldal, that it interpreted as arising in those circumstances. Id. We think the decision in Poe reads Soldal too narrowly. The Supreme Court did not suggest its holding was limited to instances involving a government employer-driven investigation or an officer performing a traditional governmental function. Instead, it held broadly, “What matters is the intrusion on the people’s security from governmental interference.” Soldal, 506 U.S. at 69, 113 S.Ct. 538. Moreover, even if we found these decisions persuasive, we must follow our decisions until they are overruled by the Supreme Court or- an en banc-decision of this Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). The holding of Lenz squarely forecloses the ruling by the district court.. We vacate the order dismissing the students’ claim under the Fourth Amendment.

IV. CONCLUSION

We VACATE the dismissal of the students’ complaint and REMAND for further proceedings.