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

May 2010 Archives

In Thomas v. Allen, No. 09-12869, a capital habeas matter, the court of appeals affirmed the district court's grant of the petition, holding that: 1) there was no Alabama precedent stating that when a capital offender has numerous IQ test scores during the developmental period, and one of those IQ scores is over 70, the court cannot find the offender mentally retarded; 2) petitioner showed, by a preponderance of the evidence, that he had significant subaverage intellectual functioning during the developmental period; and 3) the district court did not clearly err in its determination regarding petitioner's adaptive behavior during the developmental period.

Tiara Condo. Assoc., Inc. v. Marsh & McLennan Cos., No. 09-11718, concerned an action for breach of contract between an insurance broker and the association responsible for managing a condominium tower located on Singer Island, Florida.  The Eleventh Circuit affirmed in part summary judgment for defendant, holding that plaintiff failed to offer evidence that any of the alleged errors made by defendant were intentional or made in bad faith.  Further, the Eleventh Circuit certified the following question to the Florida Supreme Court, holding that "Does an insurance broker provide a "professional service" such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured?"

In US v. Cunningham, No. 09-13989, the court of appeals affirmed defendant's sentence for violating his supervised release, following his convictions for conducting monetary transactions over $10,000 in criminally derived property and conspiracy to commit money laundering, holding that 18 U.S.C. section 3583(e)(3) did not violate the Fifth or Sixth Amendments because the violation of supervised release need only be proven by a preponderance of the evidence, and there was no right to trial by jury in a supervised release revocation hearing.

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In US v. Alfaro-Moncada, No. 08-16442, the Eleventh Circuit affirmed defendant's child pornography possession conviction, holding that 1) customs officials had statutory authority under 6 U.S.C. section 1581(a) to search the cabin; 2) the suspicionless search of defendant's cabin on a foreign cargo ship, while it was docked at the Antillean Marine on the Miami River, was not a violation of the Fourth Amendment; 3) defendant knew that he was in possession of child pornography; and 4) the 87-month, within the guidelines, sentence in this case was not outside the range of reasonableness.

In US v. Boffil-Rivera, No. 08-16098, the court of appeals affirmed defendant's conviction for making a false statement of material fact in a matter within the jurisdiction of a government agency, holding that 1) there was sufficient evidence for a jury to conclude that defendant's statement was false; 2) given that defendant denied having anything to do with guns despite having held the gun at issue for pictures and claiming ownership of it, a reasonable juror could have concluded that defendant intentionally lied to agents when they asked whether he had a gun; and 3) because possessing a gun violated the conditions of defendant's release, a reasonable juror could have concluded that defendant's statement was capable of influencing the agency's investigation.

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Firearm Possession Sentence Affirmed

In US v. Wright, No. 09-12685, the court of appeals affirmed defendant's conviction and sentence for knowingly possessing a firearm and ammunition that affected interstate commerce, holding that 1) because the Sentencing Commission's intent was clear, there was no need to address the rule of lenity; 2) community control was sufficiently analogous to probation to warrant the application of U.S.S.G. section 4A1.2(k); and 3) 18 U.S.C. section 922(g) only required that the government prove some "minimal nexus" to interstate commerce, which it may accomplish by demonstrating that the firearm possessed traveled in interstate commerce.

As the court wrote:  "Ricky Wright appeals his conviction and eighty-four month sentence for knowingly possessing a firearm and ammunition that affected interstate commerce after having been convicted of a felony. Wright presents a case of first impression as to whether section 4A1.2(k) of the United States Sentencing Guidelines applies to Florida's community control program. Wright also challenges the constitutionality of his conviction by alleging that Congress exceeded its authority in passing the law under the Commerce Clause. After careful consideration, we find that section 4A1.2(k) applies to Florida's community control program. We also find that Wright's conviction is constitutionally sound. Accordingly, Wright has presented no reversible error and we affirm the decision of the district court."

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Illegal Reentry Sentence Reversed

In US v. Garcia, No. 09-10534, the court of appeals affirmed defendant's conviction for illegal reentry into the U.S., on the ground that the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds.  However, the court reversed defendant's sentence, on the ground that the district court committed error by enhancing defendant's sentence based on his conviction for aggravated assault under Arizona law.

As the court wrote:  "Luis Palomino Garcia appeals his conviction and 70-month sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). He argues that his prosecution was barred altogether by the statute of limitations. Failing that, he argues that he was sentenced improperly in several ways. He says that his sentence was wrongly enhanced because his prior Arizona conviction for aggravated assault is not a "crime of violence" under the Sentencing Guidelines; that his sentence is unreasonable; and that the government's failure to allege in the indictment or prove to a jury a prior aggravated felony conviction violates his rights under the Fifth and Sixth Amendments. After thorough review and oral argument, we conclude that the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds. We do, however, find the district court committed error by enhancing Mr. Palomino Garcia's sentence based on his conviction for aggravated assault under Arizona law. We therefore reverse and remand for resentencing on that issue."

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Peer v. Lewis, No. 09-10882, concerned a case arising from a contentious Florida election, a district court's order denying defendant's request for sanctions against three attorneys who represented plaintiff in the underlying matter.  The court of appeals affirmed in part, on the grounds that 1) defendant's motion for Rule 11 sanctions was untimely because the district court had already rejected the offensive pleading at the time defendant moved for sanctions; and 2) counsel did not delay the judicial proceedings after he filed the offending complaint.  However, the court reversed in part, holding that 1) the district court failed to address defendant's Rule 11 motion for sanctions against certain attorneys; and 2) there was overwhelming evidence that one attorney knowingly pursued a frivolous claim, and thus acted in bad faith.

As the court wrote:  "Daniel Lewis ("Lewis") appeals the district court's order denying sanctions against the three attorneys who represented his political rival, James Peer ("Peer"). Although Lewis filed numerous motions for sanctions during the pendency of this case, he only appeals the disposition of two of these motions: (1) his July 9, 2007, motion for sanctions against Peer's original counsel, Richard L. Rosenbaum ("Rosenbaum"), pursuant to Rule 11, 28 U.S.C. § 1927, and the court's inherent power; and (2) his October 10, 2006, motion for sanctions against Barry G. Roderman ("Roderman") and Scott M. Greenbaum ("Greenbaum") pursuant to Rule 11.

On appeal, Lewis argues that Rosenbaum's conduct is sanctionable because he knowingly filed a baseless Fair Credit Reporting Act ("FCRA") claim in federal court. Similarly, Lewis contends Roderman and Greenbaum violated Rule 11 by representing Peer in his meritless federal suit. Rosenbaum claims that he had a reasonable basis to file suit because (1) there was "suspicious" access which showed on Peer's credit report, (2) Lewis filed his state court complaint with ¶ 19, which mentioned Peer's credit report, and (3) Lewis refused to disclose the source of his information in interviews with the Miami Herald and the Sun-Sentinel Digest newspapers. Roderman and Greenbaum did not respond to Lewis' appeal or appear at oral arguments. For the reasons stated below, this Court will affirm in part, reverse in part, and remand the case to the district court for further proceedings consistent with this Opinion."

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Green v. Drug Enf. Admin., No. 07-15334, concerned plaintiffs' appeal from the district court's dismissal of their claim that the DEA lacked jurisdiction over property the DEA seized from plaintiffs and then forfeited to the U.S. in a civil administrative forfeiture proceeding.  The court of appeals dismissed the appeal, holding that the appeal was untimely because Fed. R. App. P. 4(a), which enforced a jurisdictional time limit, was tolled only by timely motions, and plaintiff's Fed. R. Civ. P. 59(e) motion was untimely.

US v. Martinez, No. 08-13846, involved a petition for rehearing of the court of appeal's prior decision, which permitted the government to introduce new evidence on remand to support a claimed leadership sentencing enhancement in a criminal matter.  The court of appeals denied the petition, holding that 28 U.S.C. section 2106 granted the courts of appeal broad discretion to fashion mandates to allow appropriate proceedings on remand in a criminal case, and Eleventh Circuit precedent had long held that an appellate panel may in an appropriate case permit the government to introduce new evidence on a remand for resentencing.

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H&R Block's Non-Competition Covenant Upheld, and Criminal Matters

H&R Block Eastern Enters., Inc. v. Morris, No. 09-11184, involved an action by a tax preparation firm against a former employee claiming that defendant violated the terms of her employment agreement by soliciting plaintiff's clients, providing tax-preparation services to plaintiff's former clients, and soliciting and hiring plaintiff's employees.  The Eleventh Circuit affirmed in part summary judgment dismissing both parties' claims, on the grounds that 1) the district court did not err by granting summary judgment on defendant's wrongful termination counterclaim because, even if defendant was hired for the 2006 tax season, no enforceable employment agreement governed the relationship; 2) defendant failed to exhaust her administrative remedies on her Title VII claim; and 3) an intra-corporate communication to someone who clearly had reason to receive the information did not constitute a publication for defamation purposes.  However, the court reversed in part, on the grounds that 1) the agreement's non-competition covenant was reasonable, considering the nature and extent of the business, the situation of the parties, and other relevant circumstances; and 2) the non-solicitation clause was enforceable because it was reasonable with respect to duration and activity covered, and it did not prohibit defendant from accepting unsolicited business.

In US v. Frazier, No. 08-11655, the court of appeals affirmed defendant's convictions for making false statements to a firearms dealer in connection with the acquisition of firearms, exporting firearms and money laundering, on the grounds that 1) defendant's identity was material to the lawfulness of the firearms sales at issue; 2) because defendant stipulated that he did not have a license to export firearms to Canada, the jury reasonably determined that he had violated 18 U.S.C. section 554(a) beyond a reasonable doubt and the district court did not err in denying his motion for judgment of acquittal; and 3) a reasonable jury would be able to infer that a wire transaction was the proceeds of unlawful activity that defendant had knowledge of.  However, the court reversed one defendant's sentence, holding that a miscalculated Sentencing Guidelines offense level affected defendant's substantial rights.

In US v. Ghertler, No. 09-10609, the court of appeals affirmed defendant's wire fraud sentence in part, holding that 1) the district court then imposed a sentence that clearly reflected consideration of the 18 U.S.C. section 3553(a) factors; and 2) the district court did not clearly err in finding that defendant used sophisticated means to perpetrate or conceal his fraudulent scheme.  However, the court reversed in part, on the ground that defendant did not occupy a position of trust with respect to the victims of his frauds.

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Am. Dental Assn. v. Cigna Corp., No. 09-12033, involved an action by dentists against managed care plans alleging that defendants engaged in a fraudulent scheme to reduce payments to plaintiffs.  The court of appeals affirmed the dismissal of the complaint, on the grounds that 1) plaintiffs did not point to a single specific misrepresentation by defendants regarding how plaintiffs would be compensated in any of the challenged communications, nor did they allege the manner in which they were misled by the documents; and 2) the allegations in plaintiffs' complaint did not support an inference of an agreement to the overall objective of the conspiracy or an agreement to commit the predicate acts.

As the court wrote:  "The question presented in this appeal is whether, under Fed. R. Civ. P. 9(b) and the pleading standard recently articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009), Plaintiffs/Appellants ("Plaintiffs") have sufficiently pled factual allegations in their RICO complaint to survive a motion to dismiss. After reviewing the briefs and record and having the benefit of oral argument, we affirm the district court order dismissing the complaint."

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In US v. Gomez-Castro, No. 09-12557, the court of appeals affirmed defendant's aggravated identity theft conviction is affirmed where the government, holding that the government, in its prosecution of an offender for aggravated identity theft, 18 U.S.C. section 1028A(a)(1), could rely on circumstantial evidence about the offender's misuse of the victim's identity to satisfy its burden of proving that the offender knew the identity belonged to a real person.

Shaw v. Nat'l. Union Fire Ins. Co., No. 09-14669, concerned a challenge to defendant-insurer's denial to plaintiff of "permanent total disability" benefits under an insurance policy.  The court of appeals affirmed summary judgment for defendant, on the ground that plaintiff could not be "permanently totally disabled" without suffering one of the injuries listed in a certain paragraph of the policy, and plaintiff did not suffer such an injury.

Howard v. Walgreen Co., No. 09-11823, involved an action alleging retaliation claims under Title VII and the Florida Civil Rights Act.  The court of appeals reversed judgment for plaintiff, holding that, even if plaintiff subjectively believed that his supervisor unlawfully discriminated against him when he left a message stating that plaintiff's job was in jeopardy, his belief could not have been objectively reasonable, because the supervisor's warning was not an adverse employment action.

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Lapaix v. US Atty. Gen., No. 09-12488, involved a petition for review of the BIA's decision affirming the immigration judge's ("IJ") order denying petitioner's applications for asylum and withholding of removal.  The court of appeals denied the petition, on the grounds that 1) petitioner was given the opportunity to testify or offer any evidence she or her counsel might have thought could have persuaded the IJ; 2) petitioner offered no explanation as to how her prior offense of aggravated battery with a deadly weapon was not a particularly serious crime; and 3) petitioner was not entitled to relief under the Convention Against Torture because she made no allegation of persecution at the hands of the government, nor any allegation of government acquiescence to outside forces.

In US v. McNair, No. 07-11476, the Eleventh Circuit affirmed in part defendants' convictions and sentences for conspiracy to commit bribery, substantive offenses of bribery, honest services mail fraud, mail fraud, and obstruction of justice, holding that 1) the indictment itself was not defective for failure to allege a specific quid pro quo; 2) there was no requirement in 18 U.S.C. section 666(a)(1)(B) or (a)(2) that the government allege or prove an intent that a specific payment was solicited, received, or given in exchange for a specific official act, termed a quid pro quo; 3) direct evidence of an agreement to pay a bribe was unnecessary to prove conspiracy, and the existence of the agreement and a defendant's participation in the conspiracy could be proven entirely from circumstantial evidence; and 4) Fed. R. Evid. 404(b) did not exclude evidence that was "inextricably intertwined" with evidence of the charged offense.  However, the court reversed one defendant's conviction as to a bribery conspiracy count, on the ground that defendant's receipt of the benefit of certain March and June 2000 disbursements could not be considered "overt acts" knowingly committed by him, and the bribery conspiracy in Count 75 was hence beyond the statute of limitations.

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Ayala v. US Atty. Gen., No. 09-12113, concerned a petition for review of the BIA's denial of petitioner's application for asylum and withholding of removal.  The Eleventh Circuit granted the petition, holding that the analysis of the BIA as to whether the mistreatment petitioner suffered rose to the level of persecution lacked "any review of the most important facts presented in this case."

Beckford v. Dept. of Corrs., No. 09-11540, involved an action by female corrections officers claiming that the institution failed to remedy a sexually hostile work environment that male inmates created for female employees.  The court of appeals affirmed judgment for plaintiffs, on the grounds that 1) there was no reason to treat prison inmates differently from other third-party harassers and prisons differently from other employers under Title VII; 2) a reasonable jury could have found that prison officials should have enforced the inmate dress policy, which required inmates to wear pants when female staff were in the close management dorms; and 3) the refusal of the district court to instruct the jury about the Faragher defense did not prejudice defendant.

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Trademark Infringement Action Concerning Auto Sales

Caliber Automotive Liquidators, Inc. v. Premier Chrysler, No. 08-16179, concerned a trademark infringement action involving service marks related to advertising promotions for car dealerships.  The court of appeals reversed summary judgment for defendant, on the grounds that 1) plaintiff proffered competent summary judgment evidence of actual confusion of the car dealerships, the relevant purchasing population; and 2) the mark at issue had attained federal incontestible status, and thus the district court erred in holding that the mark was not entitled to strong protection.

As the court wrote:  "Caliber Automotive Liquidators, Inc. provides advertising promotions to car dealerships and owns service marks on "Slash-It! Sales Event" and "Slasher Sale." Premier Automotive Group uses its own marketing - an infomercial called the "Slasher Show" - to sell cars. Caliber sued Premier in the Northern District of Georgia under both federal and state law, claiming infringement. The district court granted Premier summary judgment, holding that no reasonable jury could find a likelihood of confusion between Caliber's marks and Premier's advertising. Caliber appealed. Persuaded that the district court erred in its measure of confusion of Caliber's customers by Premier's advertising and in the weight it gave an incontestible mark, we reverse and remand."

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Coventry First, LLC v. McCarty, No. 09-11682, concerned an action to enjoin the enforcement of a records request to plaintiff by the Florida Office of Insurance Regulation.  The court of appeals affirmed the dismissal of the complaint, on the grounds that 1) plaintiff had no plausible right to relief under either the Florida Viatical Settlement Act or the dormant Commerce Clause; 2) under Rule 15(a) of the Federal Rules of Civil Procedure, the district court had the discretion to deny plaintiff's motion to amend as futile, given that Coventry could have filed an amended complaint as a matter of course.

As the court wrote:  "This appeal arises from the District Court's order dismissing Coventry's complaint and denying its motion to amend that complaint. Although Coventry could have filed an amended complaint as a matter of course, it filed a motion to amend and thereby invited the District Court to rule on that motion. For this reason, we conclude that Coventry cannot complain that the District Court accepted its invitation to so rule. We affirm the order of the District Court."

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Full Text of Coventry First, LLC v. McCarty, No. 09-11682

Old West Annuity & Life Ins. Co. v. Apollo Grp., No. 09-10994, concerned the government's appeal from the district court's allocation of surplus proceeds from the sale of real property in a foreclosure action.  The court of appeals affirmed, on the grounds that 1) the district court correctly concluded that Florida law supplied the pertinent alter ego test; 2) even if the government was correct that the district court should have transferred the surplus proceeds to the trustee to distribute according to the Bankruptcy Code or that the district court itself should have applied the Bankruptcy Code's priorities, a creditor would be entitled to the disputed proceeds actually awarded to it by the district court; and 3) even assuming that the trustee of the estate at issue had a hypothetical lien that took priority over the two secured creditors' liens, the secured creditors' liens could not be avoided by the trustee.

Penley v. Eslinger, No. 09-13092, involved a civil rights action alleging excessive force by police.  The court of appeals affirmed summary judgment for defendant-officers, on the ground that the decedent's act of bringing a firearm to school, threatening the lives of others, and refusing to comply with officers' commands to drop the weapon were undoubtedly serious crimes, and thus the officer who shot the decedent reasonably believed he was in danger.

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Campbell v. Ga. Power Co., No. 09-13472, concerned a product liability action in which the district court granted summary judgment to defendant based on Georgia's statute of repose.  The Eleventh Circuit certified the following question to the Georgia Supreme Court:  "In a strict liability or negligence action, does the statute of repose in O.C.G.A. section 51-1-11 begin running when 1) a component part causing an injury is assembled or tested; 2) a finished product, which includes an injuring component part, is assembled; or 3) a finished product, which includes an injuring component part, is delivered to its initial purchaser?

As the court wrote:  "Ronald J. Campbell, Jr., a Georgia Power Company employee, was injured while operating an A77-T bucket truck when the lower boom lift cylinder failed on June 30, 2006. Altec Industries, Inc. ("Altec") manufactured and sold the bucket truck to Georgia Power Company; Texas Hydraulics, Inc. ("THI") manufactured the defective lift cylinder, which was developed jointly by Altec and THI for use in the bucket truck. On February 4, 2008, Ronald J. Campbell, Jr. and his wife, Kristie Campbell (collectively, "Campbell") brought this action against Altec and THI on theories of defective design, manufacturing, and assembly of the bucket truck under principles of strict liability and negligence."

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