U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

March 2010 Archives

US v. Suarez, No. 08-13675

In US v. Suarez, No. 08-13675, the court of appeals affirmed defendants' alien smuggling convictions and sentences, holding that 1) there was no reasonable basis to believe that the testimony of the aliens defendant was alleged to have smuggled would be material and favorable to him; 2) an agent's testimony regarding the contents of the affidavit in support of a wiretap provided ample support; 3) an excluded statement by a witness was made after the fact, not at the time of the incident, and thus was not an expression of state of mind; and 4) the evidence supported the district court's sentencing enhancements for special skills and substantial risk of death.

As the court wrote:  "In December 2007, a federal grand jury returned a superseding indictment against Appellants Alexis De La Cruz Suarez ("De La Cruz"), Ramon Barrabi Puentes ("Barrabi"), and Jose Vazquez ("Vazquez"), and three other co-defendants. The indictment charged the Appellants with conspiracy in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) to commit alien smuggling in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and to bring aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. § 1324(a)(1)(A)(I) ("Count 1"); and attempting to bring aliens into the United States for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 ("Counts 2-35"). Vazquez was charged with 35 additional counts of attempting to bring aliens into the United States for the purpose of commercial advantage and private financial gain ("Counts 36-70"). Barrabi was charged with 66 additional counts of attempting to bring aliens into the United States for the purpose of commercial advantage and private financial gain ("Counts 36-101"). After a joint trial, a jury found the Appellants guilty as to Count 1. As to the remaining counts, the Appellants were either acquitted, or the charges were dismissed.

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SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, No. 07-11178

SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, No. 07-11178, concerned an action against an investment bank, claiming damages due to violations of federal and state securities laws, breach of fiduciary duty, and constructive fraud.  The court of appeals affirmed the dismissal of the complaint, holding that 1) the district court properly relied on an agreement outside the pleadings because it undeniably determined the terms of the relationship between the parties; and 2) the agreement explicitly stated that defendant was not acting as an adviser or fiduciary to plaintiff.

As the court of appeals wrote:  "Whether Banc of America Securities had a fiduciary duty to SFM is determined by the substantive agreement of the parties. It is not determined by labels placed on the relationship. Kim, Lee and Shoreland acted as SFM's investment advisor. Kim exercised discretionary control over the account according to the allegations of the complaint. The PB Agreement explicitly stated the Banc of America Securities was not acting as an adviser or fiduciary to the customer. It had no direct contact with SFM. Given this relationship, the fiduciary is the party who has direct contact with and provides investment advice to the
customer. See McDaniel v. Bear Stearns & Co., 196 F. Supp. 2d 343, 353 (S.D.N.Y. 2002) (clearing firms only liable when they become "actively and directly involved in the introductory broker's actions" and not when performing 12 mere "routine clearing functions."). Even if Banc of America Securities actually served as the prime and executing broker, "[i]n no way, shape or form does the complaint plead that [Banc of America Securities] was making decisions regarding the accounts [but rather] simply executed the [SFM] transactions along with the other transactions sent to it by [Kim]." Dillon v. Militano, 731 F. Supp. 634, 636 (S.D.N.Y. 1990)."

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US v. Sneed, No. 09-13195

In US v. Sneed, No. 09-13195, the court of appeals vacated defendant's drug and firearm possession sentence, holding that sentencing courts may not use police reports to determine whether predicate offenses under 18 U.S.C. section 924(e)(1) were committed on "occasions different from another."

As the court wrote:  "Kevin Earl Sneed appeals his 180-month sentence for possession of a firearm by a convicted felon and possession of marijuana. On appeal, Sneed argues that his sentence was improperly enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), because the district court used police reports to determine whether Sneed's prior drug convictions were committed on different occasions and thus qualified as predicate felonies for the § 924(e) enhancement. After review, we conclude the district court erred in relying on non-Shepard approved records and thus vacate Sneed's sentence."

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Coffield v. Handel, No. 09-13277

Coffield v. Handel, No. 09-13277, concerned an action claiming that plaintiff was unconstitutionally denied access to the 2008 general election ballot as an independent candidate to represent Georgia's Fourth Congressional District in the House of Representatives.  The court of appeals affirmed the dismissal of the complaint, on the ground that plaintiff was unable to collect a sufficient number of signatures to satisfy Georgia's requirement that an independent candidate submit a nomination petition signed by at least 5% of the total number of registered voters eligible to vote in the last election for the position the candidate seeks, and the Supreme Court had upheld that requirement.

As the court wrote:  "Appellant-Plaintiff Coffield sought access to the 2008 general election ballot as an independent candidate to represent Georgia's Fourth Congressional District in the United States House of Representatives. She was not on the ballot. Briefly stated, she was unable to collect a sufficient number of signatures to satisfy Georgia's requirement that an independent candidate submit a nomination petition signed by at least 5% of the total number of registered voters eligible to vote in the last election for the position the candidate seeks. GA. CODE ANN. § 21-2-170. This appeal presents one issue: whether the district court erred when it dismissed Coffield's constitutional challenge for failure to state a claim under Rule 12(b)(6). We conclude it did not."

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US v. Ramunno, No. 09-10446

US v. Ramunno, No. 09-10446, involved a mail and wire fraud prosecution in which the district court denied a victim's petition to the district court to amend its preliminary order of forfeiture, contending that the victim was entitled to a constructive trust in the funds he invested.  The court of appeals affirmed, holding that, if the movant were granted a constructive trust and recovered his entire loss, the other victims would recover less than their pro-rata share of the seized assets.

As the court wrote:  "Anthony Michael Ramunno, Jr. pleaded guilty to one count of mail fraud and one count of wire fraud, in violation of 18 U.S.C. sections 1341 and 1343 respectively. As part of his plea agreement, Ramunno agreed to forfeit his ill-gotten gains to the Government. The district court entered a preliminary order of forfeiture by consent. Thomas Martin, one of Ramunno's victims, petitioned the district court to amend its preliminary order of forfeiture, contending that he was entitled to a constructive trust in the funds he invested with Ramunno. The district court granted the Government's motion to dismiss Martin's petition. Martin appeals. We affirm."

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Criminal and Elections Cases

In US v. Frank, No. 07-13685, the court of appeals affirmed defendant's conviction for traveling and engaging in illicit sexual conduct with minors.  The court held that 1) the district court did not err in denying defendant's motion to suppress defendant's non-Mirandized statements to Cambodian officials because the statements did not fall under the joint venture doctrine; 2) 18 U.S.C. section 2251A applied extraterritorially to reach defendant's conduct; 3) defendant's statement that the minor girls came to his hotel "for the pictures and to have sex together," taken into account with the other evidence presented, allowed the jury to conclude beyond a reasonable doubt that defendant engaged in illicit sexual conduct; and 4) the term "purchase," as used in 18 U.S.C. section 2251A(b), covered situations where a defendant pays a minor directly for sex.

Dermer v. Miami-Dade Cty., No. 08-15061, involved a First Amendment challenge to a county ordinance prohibiting any false statement concerning the contents or effect of any petition for initiative, referendum, or recall.  The court of appeals reversed partial summary judgment for plaintiff on the grounds that 1) plaintiff lacked standing to challenge the ordinance because he failed to submit any detail, such as when, where, or how he intended to exercise his right to free speech in the future, that illuminated the specifics of his claimed injury; and 2) plaintiff's claim was not ripe because his allegations contained no factual specificity and, therefore, did not demonstrate a credible threat of prosecution.

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Civil Rights and Criminal Matters

In US v. Davis, No. 08-16654, the court of appeals affirmed defendant's firearm possession conviction, on the ground that the good faith exception to the exclusionary rule allowed the use of evidence obtained in reasonable reliance on well-settled precedent, even though in this case the Supreme Court overruled that precedent in Arizona v. Gant.

Rehberg v. Paulk, No. 09-11897, concerned an action for malicious prosecution, retaliatory investigation and prosecution, and evidence fabrication.  The court of appeals affirmed the denial of defendants' motion to dismiss based on absolute and qualified immunity in part, holding that plaintiff sufficiently alleged the requisite retaliatory motive, absence of probable cause, and but-for causation to state a retaliatory prosecution claim.  However, the court reversed the order in part, on the grounds that 1) even if defendants knew one defendant's testimony before a grand jury was false, they still received absolute immunity for the act of testifying to the grand jury; and 2) plaintiff's voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information.

Griswold v. Cty. of Hillsborough, No. 09-12421, involved an action by plaintiff, a disabled veteran, claiming that defendants violated his rights under the Veterans Benefits Act of 2003, by interfering with plaintiff's businesses' ability to obtain certain government contracts.  The court of appeals affirmed the dismissal of the complaint on the ground that plaintiff's claims were barred under the doctrine of res judicata due to earlier litigation brought by plaintiff's companies arising from the same facts.

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Criminal and Immigration Cases

Vila v. US Atty. Gen., No. 08-16013, concerned a petition for review of the BIA's denial of petitioner's application for a waiver of inadmissibility.  The Eleventh Circuit denied the petition on the ground that, because petitioner's approved I-140 visa petition did not make him a lawful resident under section 212(h) when the Immigration and Naturalization Service formally approved his application for adjustment, petitioner did not lawfully reside continuously in the U.S. for the seven years preceding the initiation of his removal proceedings on October 25, 2003.

In US v. Ternus, No. 08-15687, the court of appeals affirmed defendant's conviction for conspiracy to transport in foreign commerce stolen goods, on the grounds that 1) defendant's guilty plea waived all non-jurisdictional defects in the proceedings against him; and 2) the district court was not required to define "foreign commerce" in order to adequately explain the nature of the charges against him.

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US v. Brummer, No. 09-13613

US v. Brummer, No. 09-13613, involved defendant's appeal from the district court's order that he forfeit two firearms and six rounds of ammunition pursuant to his conviction of knowingly and willfully failing to declare firearms to a common carrier.

As the per curiam court of appeals opinion states:  "Fed. R. Crim P. 32.2(b)(1) requires that, "[a]s soon as practical after a . . . plea of guilty or nolo contendere is accepted, on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute." Rule 32.2(b)(2) explains the next step: "If the court determines that the property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture . . . directing forfeiture of the specific property . . . ." The district court properly determined that the two guns and six rounds of ammunition involved in Brummer's willful violation of § 922(e) were subject to forfeiture under § 924(d)(1). Fed. R. Crim. P. 32.2 therefore required the district court to direct forfeiture of the guns and ammunition. The court lacked discretion to do otherwise."

The Eleventh Circuit affirmed, on the ground that the indictment charging defendant with violating 18 U.S.C. section 922(e) included a notice of forfeiture, and thus the district court therefore was required to order forfeiture of the property.

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Construction, Criminal and Personal Injury Matters

The Eleventh Circuit decided one appeal on a personal jurisdiction issue in a construction dispute, one criminal matter and one personal injury case.

In PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., No. 08-10401, an action for fraud and breach of contract arising out of two contracts for the supply and installation of windows and doors for a hotel construction project on the island of Saint Maarten in the Netherlands Antilles, the court of appeals affirmed the dismissal of the action for lack of personal jurisdiction where defendants did not do business in Florida, were not otherwise subject to the reach of Florida's long-arm statute, and lacked minimum contacts with Florida.

In US v. Dodge, No. 08-10802, the court affirmed defendant's conviction for failure to register under the Sex Offender Registration and Notification Act (SORNA), on the ground that SORNA's broad definition of "sex offense" encompassed the conduct that underlies defendant's conviction, namely knowingly transferring obscene matter over the Internet to minors.

Dietz v. SmithKline Beecham Corp., No. 09-10167, involved a personal injury action against a drug manufacturer alleging that plaintiff's decedent committed suicide due to taking defendant's antidepressant.  The court affirmed summary judgment for defendant, holding that plaintiff could not demonstrate that defendant's alleged failure to warn plaintiff's doctor about increased suicide risks associated with the drug proximately caused the decedent to commit suicide.

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The Eleventh Circuit affirmed one firearm possession conviction, and one set of drug conspiracy convictions.  The court also affirmed the denial of a capital habeas petition.

In US v. Rozier, 08-17061, the court affirmed defendant's firearm possession conviction and sentence, on the grounds that 1) 18 U.S.C. section 922(g)(1) is constitutional, even if a felon possesses a firearm purely for self-defense; and 2) it was a sufficient basis for defendant's sentence that the district judge, at sentencing, found that defendant had in fact been convicted of three or more prior serious drug offenses.

In US v. Bacon, No. 08-10463, the court of appeals affirmed defendants' drug conspiracy conviction and sentence in part where 1) the jury was entitled to find the government's case convincing and the government witnesses credible even though the evidence was circumstantial; 2) the jurors could reasonably infer that one defendant was a drug distributor; and 3) the jury could consider presence as a probative factor in determining whether one defendant knowingly and intentionally participated in a criminal scheme.  However, the court vacated one defendant's sentence where, when a defendant is convicted of participating in a drug trafficking conspiracy under 21 U.S.C. section 846, the court must sentence the defendant based on an individualized finding, supportable by a preponderance of the evidence, as to the drug quantity foreseeable by that defendant.

In Williams v. Allen, No. 08-11905, a capital habeas case, the court of appeals affirmed the denial of the petition where 1) defense counsel was not ineffective because the record illustrated several reasons why a reasonable defense counsel would pursue an insanity defense based on a mental disease, exclusive of voluntary intoxication; 2) given the contradictory accounts regarding the degree of petitioner's intoxication, it was unlikely that inconsistencies in testimony on that issue would have changed the outcome of the proceedings; 3) counsel adequately emphasized that petitioner engaged in excessive alcohol and drug consumption prior to the crimes, and petitioner did not demonstrate that counsel needed to argue further; and 4) the jury instructions did not relieve the prosecution's burden of proving intent to commit capital murder.

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The Eleventh Circuit decided one civil rights matter and two criminal cases.

Keating v. Miami, No. 09-10939, was an action alleging violations of plaintiffs' First and Fourth Amendment rights during a demonstration held in November 2003 outside the Free Trade Area of the Americas meeting in Miami.  The court of appeals affirmed the denial of summary judgment based on qualified immunity on plaintiffs' First Amendment claims against certain defendants, holding that plaintiffs satisfied the heightened pleading requirement for a 42 U.S.C. section 1983 claim under a supervisory liability theory by alleging a causal connection established by facts that supported an inference that defendants directed subordinate officers to act unlawfully.

However, the court reversed the denial of summary judgment based on qualified immunity on the grounds that the protesters failed to allege that defendant violated their First Amendment rights in his supervisory capacity by failing to stop the subordinate officers from using less than lethal weapons to disperse a crowd of peaceful demonstrators because defendant was merely present, and could not contravene the orders directing such unlawful activity given by the police chief.

In US v. Culver, No. 07-14708, the court of appeals affirmed defendant's conviction and sentence for production of child pornography, holding that 1) defendant's argument that 18 U.S.C. section 2251(a) was unconstitutional as applied to his conduct was foreclosed by the court's earlier conclusion that Congress had broad authority to regulate both intrastate and interstate child pornography; and 2) the government's incremental need for the drug and stun gun evidence submitted at trial to overcome any potential doubt generated by the victim's inability to remember the events in question, and the overall similarity between the acts depicted on the tape and the events of the date of the offense rendered that evidence highly probative.

Richardson v. Johnson, No. 08-16795, involved a 42 U.S.C. section 1983 action by a prisoner against prison authorities based on an assault against him by another inmate.  The court of appeals affirmed the dismissal of the complaint in part where plaintiff failed to allege how defendants were deliberately indifferent to his medical needs.  However, the court of appeals vacated the dismissal in part on the ground that, as long as the court-appointed agent could locate the prison-guard defendant with reasonable effort, prisoner-litigants who provide enough information to identify the prison-guard defendant had established good cause for Fed. R. Civ. P. 4(m) purposes.

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Decision in Criminal Case of US v. DuBose

In US v. DuBose, No. 09-11400, defendant was convicted of making a false statement in connection with the acquisition of a firearm, and possessing a firearm while subject to a protective order.

The court of appeals affirmed defendant's conviction on the grounds that 1) a conviction under 18 U.S.C. section 922(g)(8) did not require that the precise language found in subsection (C)(ii) must be used in a protective order for it to qualify under the statute; 2) the district court's prohibition of irrelevant evidence complied with Fed. R. Evid. 402 and was not clear error; and 3) defendant could not challenge the validity of the underlying protective order as a means of collaterally attacking his 18 U.S.C. section 922(g)(8) prosecution.

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