American Bar Association
Media Alerts
Media Alerts - 11th Circuit
Decrease font size
Increase font size
September 27, 2017
  United States v. Blake-11th Circuit
Headline: Eleventh Circuit holds that an order to bypass security features of IPad was within the authority granted by the All Writs Act and warrants for Facebook while overbroad, fall within the good faith exception.

Area of Law: Criminal Law

Issue: Whether an order to bypass security features of IPad was within the authority granted by the All Writs Act and whether warrants for Facebook were overbroad requiring suppression of evidence.

Extended Summary: The Federal Bureau of Investigation ("FBI") arrested and charged Appellants, Dontavious Blake ("Blake") and Tara Jo Moore ("Moore") with crimes related to sex trafficking. The FBI obtained search warrants for Moore's Facebook and Microsoft accounts. The Facebook warrants were not limited to specific data or to a specific timeframe. The Microsoft warrant was limited to emails linked to the sex trafficking charges. The FBI also obtained an order ("bypass order") issued under the All Writs Act requiring that Apple bypass the security measures of an IPad recovered during a search of Blake and Moore's home. Blake and Moore were convicted after the district court denied their motions to suppress the evidence gathered from Facebook, Microsoft and the IPad. On appeal, the Eleventh Circuit noted that the scope of the Facebook warrants could and should have been limited. In addressing the particularity requirement of the Fourth Amendment, the court determined that even if the warrants were overly broad, they were supported by probable cause and the "good-faith" exception would apply. The court also held that the Microsoft warrant was valid because it was supported by probable cause and limited in scope to emails that had the potential to contain incriminating evidence. The Eleventh Circuit declined to determine if Moore and Blake had the prudential standing to contest the bypass order, but held that the bypass order did not exceed the district court's authority under the All Writs Act because all of the necessary requirements were met. The court found no error with the district court's rulings regarding the other issues raised on appeal. Accordingly, the Eleventh Circuit affirmed.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201513395.pdf

Panel: Carnes, Chief Judge; Fay, Circuit Judge, and Parker (United States Circuit Judge for the Second Circuit, sitting by designation)

Argument:

Date of Issued Opinion: August 21, 2017

Docket Number: 15-13395

Decided: Affirmed.

Case Alert Authors: Gabrielle F. McCabe, Franklin Sandrea-Rivero, and Peter Abraham-Orejuela

Counsel:

Author of Opinion: Carnes, Chief Judge.

    Posted By: Gary Kravitz @ 09/27/2017 03:32 PM     11th Circuit     Comments (0)  

March 27, 2017
  Evans v. Georgia Regional Hospital Charles Moss, et. al. - 11th Circuit
Headline: Eleventh Circuit holds Title VII affords relief for gender non-conformity discrimination, but not sexual orientation discrimination.

Area of law: Constitutional Law, Civil Rights

Issue: Whether a Title VII claim is available for both gender non-conformity and sexual orientation discrimination.

Extended Summary: Jameka Evans ("Evans") filed a pro se Title VII complaint seeking recovery based on sexual orientation and gender non-conformity discrimination, as well as retaliation, which allegedly occurred during her employment at Georgia Regional Hospital. The magistrate judge found that Evans' first claim, sexual orientation discrimination, was not proper under Title VII. With regard to the gender non-conformity discrimination claim, the magistrate judge concluded that it was just another way to allege what was contained in the first count. The district judge dismissed the complaint, adopting the magistrate judge's report and recommendation. The Eleventh Circuit affirmed the dismissal of the first count finding that it was not cognizable as a Title VII claim. However, the court found the second count for gender non-conformity discrimination was a permissible, valid and separate, distinct avenue for relief under Title VII. The court also found Evans' argument relating to the retaliation claim was deemed waived. Accordingly, the Eleventh Circuit affirmed in part, vacated in part, and remanded for further proceedings.

Judge William Pryor concurred with a separate opinion. Judge Rosenbaum concurred in part and dissented in part.

To view the full opinion: http://media.ca11.uscourts.gov...ub/files/201515234.pdf

Panel: William Pryor and Rosenbaum, Circuit Judges, and Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation.

Argument: December 15, 2016

Date of Issued Opinion: March 10, 2017

Docket Number: 15-15234

Decided: Affirmed in part, vacated in part and remanded.

Case Alert Authors: Luis Garcia, Shantell Monreal, and Uxsunn Ramirez

Counsel:
Gail S. Coleman for Amicus Curiae Equal Employment Opportunity Commission
Gregory R. Nevins for Appellant Jameka K. Evans

Author of Opinion: Jose E. Martinez, United States District Judge

    Posted By: Gary Kravitz @ 03/27/2017 05:43 PM     11th Circuit     Comments (0)  

February 15, 2017
  Brown Jordan International, Inc., v. Carmicle - 11th Circuit
Headline: Eleventh Circuit holds an interruption of service is not required to be compensated under the Computer Fraud and Abuse Act ("CFAA").

Area of Law: Civil, Commerce, Employment

Issue: Whether interruption of service is required to be compensated under the CFAA.

Extended Summary: On March 11, 2014, Appellee, Brown Jordan International, Inc. ("Brown Jordan"), initiated a suit against Appellant, Christopher Carmicle ("Carmicle"), including claims for violation of the CFAA and of the Stored Communications Act ("SCA"). After a bench trial, the district court concluded Carmicle's access to the email accounts violated the CFAA and SCA. On appeal, Carmicle contended the district court erred in finding a violation of the CFAA because there was no interruption of service, and thus no "loss." In a case of first impression, the Eleventh Circuit found a "loss" included the direct costs of responding to a CFAA violation, without it being related to an interruption of service. Accordingly, the Eleventh Circuit affirmed the lower court's determination on the CFAA violation. The court also rejected the other contentions raised by Carmicle.

To view the full opinion: http://media.ca11.uscourts.gov...ub/files/201611350.pdf

Panel: Marcus and Black, Circuit Judges, and Cohen (United States District Judge for the Northern District of Georgia, sitting by designation).

Argument: November 18, 2016

Date of Issued Opinion: January 25, 2017

Docket Number: 16-11350

Decided: Affirmed

Case Alert Authors: Luis Garcia, Shantell Monreal, and Uxsunn Ramirez

Counsel:
Glenn Alan Cohen for Appellant
Lloyd B. Chinn for Appellees

Author of Opinion: Black, Circuit Judge

    Posted By: Gary Kravitz @ 02/15/2017 03:46 PM     11th Circuit     Comments (0)  

  Dukes v. Deaton - 11th Circuit
Headline: Eleventh Circuit holds officers who used a "flashbang" without visually inspecting a room violated the Fourth Amendment, but were entitled to qualified immunity.

Area of Law: Criminal, Constitutional law

Issue: Whether officers who used a "flashbang" without visually inspecting a room, in violation of the Fourth Amendment, are entitled to qualified immunity.

Extended Summary: On July 21, 2010, law enforcement officers executed a search warrant on an apartment connected with the sale of narcotics. Prior to entering the apartment, one of the officers used a "flashbang" to disorient the occupants, which included Appellant, Treneshia Dukes ("Dukes"). Dukes filed a complaint for various claims, including violation of her right to be free from excessive force under the Fourth Amendment. The district court entered summary judgment in favor of the officers based on qualified immunity. On appeal, the Eleventh Circuit noted the decisions of other circuit courts, which found the use of a "flashbang" in similar circumstances, constituted excessive force in violation of the Fourth Amendment. While the Eleventh Circuit agreed with that determination, the court held qualified immunity applied because the use of excessive force was not "clearly established" as a statutory or constitutional violation at the time the search warrant in this case was executed. Accordingly, the summary judgment was affirmed.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201514373.pdf

Panel: William Pryor and Rosenbaum, Circuit Judges, and Ungaro (United States District Judge for the Southern District of Florida, sitting by designation)

Argument: December 14, 2016

Date of Issued Opinion: January 26, 2017

Docket Number: 15-14373

Decided: Affirmed

Case Alert Authors: Luis Garcia, Shantell Monreal, and Uxsunn Ramirez

Counsel:
Mario Bernard Williams for Appellant Treneshia Dukes
Wayne Steven Melnick for Appellees Nicholas Deaton and Steve Branham.

Author of Opinion: William Pryor, Circuit Judge

    Posted By: Gary Kravitz @ 02/15/2017 03:39 PM     11th Circuit     Comments (0)  

September 29, 2016
  Gelin v. U.S. Attorney General - 11th Circuit
Headline: Eleventh Circuit holds that a conviction for abuse of an elderly person or disabled adult under Fla. Stat. § 825.102(1) is a crime involving moral turpitude, making an alien ineligible for relief from removal under 8 U.S.C. § 1229b(b)(1)(C).

Area of Law: Immigration, Criminal

Issue: Whether a conviction for abuse of an elderly person or disabled adult under Florida Statute § 825.102(1) is a crime involving moral turpitude, making an alien ineligible for relief from removal.

Extended Summary: On January 22, 2014, an immigration judge ordered Jean Bernard Gelin ("Gelin"), a native and citizen of Haiti, be removed from the United States based upon his conviction of the crime of abuse of an elderly person or disabled adult, in violation of Fla. Stat. § 825.102(1). The IJ also found that the conviction was a crime involving moral turpitude. The Board of Immigration Appeals affirmed the order of removal. In a case of first impression, the Eleventh Circuit found that the abuse of an elderly person or disabled adult, in violation of § 825.102, is a crime involving moral turpitude. In making this determination, the court noted the culpable state of mind required by the statute and the particularly vulnerable nature of the victims. The court also rejected Gelin's argument that § 825.102 was unconstitutionally void for vagueness. Judge Martin dissented, finding that a person could be convicted under the statute without committing a crime involving moral turpitude.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201512497.pdf

Panel: Hull and Martin, Circuit Judges, and Wright (United States District Judge for the Eastern District of Arkansas, sitting by designation).

Argument: September 14, 2016

Date of Issued Opinion: September 22, 2016

Docket Number: 15-12497

Decided: Petition Dismissed

Case Alert Author: Martha Ferral and Marina Gonzalez

Counsel:
Michael S. Vastine for Petitioner Jean Bernard Gelin
Stefanie N. Hennes for Respondent U.S. Attorney General

Author of Opinion: Hull, Circuit Judge

    Posted By: Gary Kravitz @ 09/29/2016 05:06 PM     11th Circuit     Comments (0)  

September 20, 2016
  Sergeeva v. Tripleton Intl. Ltd., et al. - 11th Circuit
Headline: Eleventh Circuit holds that discovery pursuant to 28 U.S.C. § 1782 reaches documents located outside of the United States sought in conformity with the Federal Rules of Civil Procedure ("FRCP").

Area of Law: Civil Procedure/International Judicial Assistance

Issue: Whether discovery pursuant to 28 U.S.C. § 1782 reaches documents located outside of the United States sought in conformity with the FRCP.

Brief Summary: Anna Sergeeva ("Sergeeva") sought to obtain information from Trident Corporate Services, Inc. ("Trident") through an ex parte application for judicial assistance demonstrating her ex - husband's beneficial ownership of a Bahamian corporation that was an affiliate of Trident. Trident objected to production of documents located outside of the United States arguing that the court lacked authority under section 1782. The Eleventh Circuit affirmed the district court's ruling denying Trident's motion to vacate the order granting judicial assistance and quash the subpoena. The court also affirmed the contempt order and sanctions imposed.

Extended Summary: In a proceeding in Russia to divide marital assets, Sergeeva claimed her former husband was concealing and dissipating marital assets held outside of Russia. The district court granted an application for judicial assistance and ordered the issuance of a subpoena directed to Trident. The court denied Trident's motion to vacate and compelled production of all the documents responsive to the subpoena. After Trident appealed these orders, the district court held Trident in contempt and imposed sanctions for failing to produce responsive documents.
The Eleventh Circuit affirmed the district court, finding the court properly concluded it was authorized to order production of documents located outside of the United States provided they were in the possession, custody, and control of Trident. The court noted that the applicable federal rule relates to the location of the act of production and not the location of the documents. The Eleventh Circuit also affirmed the district court's finding that Trident had control over the responsive documents and the sanctions order.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201513008.pdf

Panel: Jordan and Anderson Circuit Judges, and Dalton (United States District Judge for the Middle District of Florida, sitting by designation).

Argument: N/A

Date of Issued Opinion: August 23, 2016

Docket Numbers: 15 - 13008 & 15 - 15066

Decided: Affirmed

Case Alert Author: Marina Gonzalez, Martha Ferral

Counsel:
Philip Whitworth Engle for Appellant Trident Corporate Services, Inc.
Fredric J. Bold for Appellee Anna Aleksandrovna Sergeeva

Author of Opinion: Dalton, District Judge

    Posted By: Gary Kravitz @ 09/20/2016 01:27 PM     11th Circuit     Comments (0)  

  United States v. Phillips - 11th Circuit
Headline: Eleventh Circuit finds a civil writ of bodily attachment is a warrant within the meaning of the Fourth Amendment.

Area of Law: Constitutional Law/Criminal Procedure

Issue: Whether a civil writ of bodily attachment is a warrant within the meaning of the Fourth Amendment.

Extended Summary: Ted Phillips ("Phillips") had an outstanding writ of bodily attachment against him for unpaid child support and was also wanted by police for questioning on an unrelated matter. As an officer approached Phillips to arrest him, Phillips reached for his waistband and the officer grabbed his hand and removed a loaded firearm from Phillips' waistband. Phillips was subsequently indicted on one count of being a felon in possession of a firearm and an armed career criminal. Phillips moved to suppress the firearm arguing that the civil writ of bodily attachment was insufficient as a basis to arrest him. After the district court denied Phillips' motion to suppress, he conditionally pleaded guilty and was sentenced to the 15 - year mandatory minimum as a career criminal. In affirming, the Eleventh Circuit determined that a writ of bodily attachment for a civil offense, similar to a bench warrant, satisfies the Fourth Amendment. Additionally, the court found that Phillips waived his right to raise the sentencing issue on appeal.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201414660.pdf

Panel: William Pryor and Jill Pryor, Circuit Judges, and Richard W. Story (United States District Judge for the Northern District of Georgia, sitting by designation).

Argument: July 14, 2016

Date of Issued Opinion: August 23, 2016

Docket Number: 14 - 14660

Decided: Affirmed

Case Alert Author: Marina Gonzalez, Martha Ferral

Counsel:
Christine Carr O'Connor for Appellant Ted Phillips
Francisco Raul Maderal for Appellee United States of America

Author of Opinion: Circuit Judge William Pryor

    Posted By: Gary Kravitz @ 09/20/2016 10:33 AM     11th Circuit     Comments (0)  

September 1, 2016
  Alberts v. Royal Caribbean Cruises, Ltd.- 11th Circuit
Headline: Eleventh Circuit finds that a seaman's work traveling to or from a foreign country constitutes "performance . . . abroad" under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention").

Area of Law: Arbitration/Maritime Law.

Issue: Whether a seaman's work traveling to or from foreign countries constitutes "performance . . . abroad" under the Convention.

Extended Summary: Robert Alberts ("Alberts"), a United States citizen, worked as the lead trumpeter on a Royal Caribbean, Ltd. ("Royal Caribbean") passenger cruise ship. His two employment agreements with Royal Caribbean contained the same arbitration clause, requiring all disputes to be resolved exclusively through binding arbitration pursuant to the Convention. After becoming ill, Alberts sued Royal Caribbean under various causes of action based on the alleged failure to provide him with an adequate medical exam and attend to his complaints. The district court granted Royal Caribbean's motion to compel arbitration. In affirming, the Eleventh Circuit initially found that Albert's employment agreements satisfied three of the four jurisdictional requirements to compel arbitration under the Convention. The court's opinion focused on the fourth requirement, whether the contract "envisage[d] performance . . . abroad." Deciding an issue of first impression, the Eleventh Circuit concluded that performance abroad included a seaman's work traveling to or from a foreign country. The court also found that based on this definition, "performance . . . abroad" had a reasonable relation with a foreign state and the arbitration clause was enforceable.

To view the full opinion: Text

Panel: William Pryor, Jill Pryor, and Richard L. Voorhees (United States District Judge for the Western District of North Carolina, sitting by designation).

Argument: July 13, 2016

Date of Issued Opinion: August 23, 2016

Docket Number: 15-14775

Decided: Affirmed

Case Alert Author: Marina Gonzalez and Martha Ferral

Counsel:
Phillip Parrish for Appellant Robert Alberts
James Norford Hurley for Appellee Royal Caribbean Cruises, Ltd.

Author of Opinion: Circuit Judge William Pryor

    Posted By: Gary Kravitz @ 09/01/2016 02:06 PM     11th Circuit     Comments (0)  

April 7, 2016
  Eternal Word Television Network v. Alabama-11th Circuit
Headline: Eleventh Circuit holds that the accommodation for the Affordable Care Act's ("ACA") contraceptive mandate does not violate the Religious Freedom Restoration Act ("RFRA").

Area of Law: Constitutional Law

Issue: Whether the government imposes an undue burden on nonprofit organizations with a religious objection to providing contraceptive coverage by requiring them to opt out of ACA's contraceptive mandate.

Brief Summary: In three consolidated cases, Eternal Word Television Network, Inc. ("EWTN") and other nonprofit organizations with religious objections to providing contraceptive coverage to employees, challenged ACA's accommodations that required them to opt out of ACA's contraceptive mandate. The Eleventh Circuit found that ACA's accommodation does not substantially burden EWTN's rights because (1) the government has a compelling interest that justifies the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.

Extended Summary: EWTN and the Secretary of the United States Department of Health & Human Services ("HHS") filed cross-motions for summary judgment, with EWTN claiming that ACA's accommodation violated RFRA, the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause of the First Amendment. The district court denied EWTN's motion, but granted the government's motion, and both parties filed appeals. In the other two cases, the district court granted a group of Catholic entities' summary judgment motions on the claim that the accommodation violated RFRA. The government appealed.

The Eleventh Circuit found that the mandate and accommodation did not violate RFRA because the accommodation survives strict scrutiny. This determination also disposed of the Free Speech claim. The court also rejected the Free Exercise claim, because the mandate was facially neutral and the government's legitimate interest was rationally related to the mandate. Additionally, the court determined that, since the accommodation distinguishes on the basis of tax status rather than religious denomination, it did not violate the Establishment Clause. The Eleventh Circuit stayed enforcement of the mandate, noting the presence of several cases currently pending before the United States Supreme Court on this issue.

Judge Tjoflat dissented based on his determinations that the regulatory scheme imposes a substantial burden on the religious exercise of the parties and that it does not survive strict scrutiny.

To view the full opinion please click here

Panel: Tjoflat, Jill Pryor and Anderson, Circuit Judges

Argument: February 4, 2015

Date of Issued Opinion: February 18, 2016

Docket Numbers: 14-12696, 14-12890, 14-13239

Decided: Affirmed in part, reversed in part, and remanded

Case Alert Author: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit

Counsel:
Lori Halstead Windham for Appellant EWTN
Joshua Marc Salzman for Appellant/Appellee U.S. Dep't of Health et al.
Janine Cone Metcalf for Appellee The Roman Catholic Archdiocese

Author of Opinion: Circuit Judge Jill Pryor

    Posted By: Gary Kravitz @ 04/07/2016 03:24 PM     11th Circuit     Comments (0)  

  Quigg v. Thomas County School District-11th Circuit
Headline: The Eleventh Circuit holds the McDonnell Douglas framework is inapplicable to mixed-motive discrimination claims that are based on circumstantial evidence.

Area of Law: Employment Law

Issue: Whether the McDonnell Douglas framework is proper for evaluating mixed-motive employment discrimination claims that are based on circumstantial evidence.

Brief Summary: In a mixed-motive claim, the district court applied the framework set out in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The Eleventh Circuit reversed the district court's use of the McDonnell Douglas framework and adopted a less burdensome standard used in other circuits.

Extended Summary: Linda Quigg, ("Quigg") claimed discriminatory and retaliatory practices when the Thomas County School District, and five members of the school board refused to renew her employment contract. The district court applied the McDonnell Douglas framework to Quigg's claim and found that no triable issue of discrimination existed based on the circumstantial evidence presented
On appeal, the Eleventh Circuit held the McDonnell Douglas summary judgment framework is "fatally inconsistent" with mixed-motive theory because the framework predicates on a single "true reason" for an adverse action. The Eleventh Circuit evaluated the framework applied in other circuits and held the proper analysis should only require a plaintiff to provide evidence sufficient to convince a jury that a defendant took adverse action and that a protected characteristic was a motivating factor in the action. Applying this framework, the Eleventh Circuit found Quigg's circumstantial evidence was sufficient to establish a jury issue. Additionally, the Eleventh Circuit affirmed the dismissal of some of Quigg's § 1983 claims and all her retaliation claims.

To view full opinion: Click Here

Panel: Wilson, William Pryor, and Gilman (United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation)

Argument: October 06, 2015

Date of Issued Opinion: February 22, 2016

Docket Number: 14-14530

Decided: Affirmed in part, reversed in part

Case Alert Authors: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit.

Counsel: Harlan S. Miller, III for Appellant
Randall C. Farmer; Edward F. Preston for Appellee

Author of Opinion: Circuit Judge Wilson

    Posted By: Gary Kravitz @ 04/07/2016 02:28 PM     11th Circuit     Comments (0)  

February 29, 2016
  Garcia v. Fuenmayor-11th Circuit
Headline: Eleventh Circuit holds serious threats to parent can constitute a grave risk of harm to the child and provide exception to return of child under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention").

Area of Law: International Law; Children

Issue: Whether threats and violence directed against a parent satisfies the "grave risk of harm" exception to the return remedy of the Convention.

Extended Summary: Hayet Naser Gomez ("Naser"), the mother of M.N., petitioned under the Convention for return of M.N. when the child's father, Alfredo Jose Salvi Fuenmayor ("Salvi") wrongfully removed M.N. from Venezuela. The district court denied the petition, finding that the acts of violence towards Salvi presented evidence that there was a grave risk that the child's return would expose M.N. to physical or psychological harm. As such, it satisfied the grave risk of harm exception to the Convention.

The Eleventh Circuit noted that the district court's factual findings showed that Salvi's family was shot at, had property vandalized and that drugs were planted in Salvi's mother's car. Naser did not contest the district court's findings of fact. In affirming the district court, the Eleventh Circuit found that the facts in this case showed sufficiently serious threats and violence against a parent which posed a grave risk of harm to the child. Accordingly, the court determined the grave risk of harm exception to the return remedy of the Convention was present and that M.N. would not be required to return to Venezuela.
To view the full opinion click here:


Panel: Marcus, Jordan, and Black, Circuit Judges

Argument: January 12, 2016

Date of Issued Opinion: February 5, 2016

Docket Number: 15-12075

Decided: Affirmed

Case Alert Author: Matthew Carcano, Kevin Coppin, Oscar Quintero, Kielan Saborit

Counsel: Paul Morris, et al. for Appellant
Brett Alan Barfield, et al. for Appellee

Author of Opinion: Circuit Judge Stanley Marcus

    Posted By: Gary Kravitz @ 02/29/2016 01:17 PM     11th Circuit     Comments (0)  

November 11, 2015
  United States v. Puentes
Headline: Eleventh Circuit holds the district court lacks the authority pursuant to a Rule 35(b) motion to eliminate restitution imposed by the Mandatory Victims Restitution Act.

Area of Law: Sentencing and Restitution

Issue: Whether the district court erred in eliminating, pursuant to a Rule 35(b) motion, a mandatory restitution obligation.

Brief Summary: The Government challenges the district court's elimination, pursuant to a Rule 35(b) motion, of a mandatory restitution obligation imposed on Appellee, Angel Puentes ("Puentes") by the Mandatory Victims Restitution Act ("MVRA"). The Eleventh Circuit reversed in part and remanded.

Extended Summary: Puentes pled guilty to a charge of conspiracy to commit wire and bank fraud. Puentes was held jointly and severally liable with co-conspirators to pay $4,445,305.94 in restitution. While incarcerated, Puentes assisted federal law enforcement authorities with the investigation of another inmate in an unrelated case. The Government filed a Rule 35(b) motion to reduce his term of incarceration based on his assistance. The district court granted the motion and reduced Puentes' prison sentence from 97 months to 42 months. Additionally, the court, without application from the parties, eliminated Puentes' obligation to pay restitution.

Reversing in part, the Eleventh Circuit found: (1) the court had jurisdiction to hear the case; (2) the Government properly preserved the restitution claim by making several objections; (3) the invited error doctrine did not apply and (4) section 3664(o) of the MVRA does not permit a district court to modify an order of restitution pursuant to a Rule 35(b) motion.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201510532.pdf

Panel: Marcus, William Pryor, and Jill Pryor, Circuit Judges

Argument: October 1, 2015

Date of Issued Opinion: October 5, 2015

Docket Number: 14-13587

Decided: Reversed in part and remanded with instructions

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel: Madeleine R. Shirley, et al. for Appellant
Jan Christopher Smith, II, et al. for Appellee

Author of Opinion: Marcus, Circuit Judge

    Posted By: Gary Kravitz @ 11/11/2015 02:37 PM     11th Circuit     Comments (0)  

  United States v. Hernandez-11th Circuit
Headline: The Eleventh Circuit holds the imposition of both restitution and forfeiture does not implicate double jeopardy.

Area of Law: Restitution

Issue: Whether the imposition of both restitution and forfeiture judgments for a single offense implicates double jeopardy.

Extended Summary: Appellee Noel Hernandez ("Hernandez") pled guilty to theft of government funds, and the government moved for entry of a forfeiture judgment of $117,659.00. The district court denied the government's motion for forfeiture, but ordered Hernandez to pay restitution in the same amount. On appeal, the government contended that the forfeiture money judgment was required by law. In response, the Appellee argued that the imposition of both forfeiture and restitution violated double jeopardy. The Eleventh Circuit rejected Appellee's double jeopardy argument, stating that both restitution and forfeiture money judgment served different purposes. Additionally, the court noted the parties recovering the forfeiture and restitution were different entities. The Eleventh Circuit vacated and remanded to re-impose Hernandez's sentence to include both a forfeiture money judgment and a restitution order, each in the amount of $117,659.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201511202.pdf

Panel: Hull, Marcus and William Pryor, Circuit Judges

Date of Issued Opinion: October 19, 2015

Docket Number: 15-11202

Decided: Vacated and Remanded

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel for Appellant: Nicole M. Andrejko, et al.

Counsel for Appellee: Rosemary Cakmis, et al.

Author of Opinion: Per Curiam

    Posted By: Gary Kravitz @ 11/11/2015 02:30 PM     11th Circuit     Comments (0)  

September 21, 2015
  United States v. Maiello-11th Circuit
Headline: Eleventh Circuit holds the district court properly applied the one-year delay to a motion for sentence reduction made pursuant to the sentencing guidelines amendment that reduced the base offense levels for most drugs infractions.

Area of Law: Sentencing

Issue: Whether the district court erred in applying the one-year delay to a motion for sentence reduction pursuant to the guidelines amendment, which reduced base offenses for most drugs infractions.

Brief Summary: Appellant, Michael Paul Maiello Jr. ("Maiello"), a prisoner sentenced before November 1, 2014, challenged the district court's application of the one-year delay to his motion for a sentence reduction. The Eleventh Circuit affirmed.

Extended Summary: After amending the sentencing guidelines to reduce the base offense levels for most drug offenses (Amendment 782), the U.S. Sentencing Commission passed Amendment 788, making Amendment 782 retroactive, but with a one-year delayed effective date as set out by USSG § 1B1.10(e).

On February 3, 2015, Maiello moved for a reduction of his sentence pursuant to Amendment 782. Maiello requested the reduction be granted without application of the one-year delay. The district court granted Maiello's sentence reduction, but declined to suspend the application of section 1B1.10(e), and set a release date of November 2, 2015. Absent the delay, Maiello would have been eligible for immediate release. In affirming, the Eleventh Circuit found: (1) the Sentencing Commission acted within its authority in passing section 1B1.10(e); (2) the Sentencing Commission's selection of November 1, 2015 as the earliest possible Amendment 782 release date was neither arbitrary nor capricious; and (3) section 1B1.10(e) does not violate the constitutional principle of separation of powers.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201510532.pdf

Panel: Martin, Rosenbaum, Circuit Judges and Proctor (United States District Judge for the Northern District of Alabama, sitting by designation)

Argument: May 14, 2015

Date of Issued Opinion: August 19, 2015

Docket Number: 15-10532

Decided: Affirmed

Case Alert Author: Evan Phoenix, Lizbell Lucero, Daniel Villavisanis, and Evelin Mac Clay

Counsel: Conrad Kahn, et al. for Appellant.
Arthur Lee Bentley, III, et al. for Appellee

Author of Opinion: Proctor, District Judge

    Posted By: Gary Kravitz @ 09/21/2015 11:18 AM     11th Circuit     Comments (0)  

September 16, 2015
  United States v. Durham-11th Circuit
Headline: The Eleventh Circuit holds an appellant may raise an issue or theory in a supplemental brief where the issue or theory is based on a separate intervening Supreme Court decision that overturns binding precedent.

Area of Law: Appellate Review

Issue: Whether the court should permit an appellant to assert a new issue in a supplemental brief where the issue is based on a separate intervening Supreme Court decision that overturned binding precedent.

Brief Summary: A prisoner filed a motion seeking to stay his appeal and to file a supplemental brief due to an intervening Supreme Court decision. The Eleventh Circuit, en banc, granted the prisoner's motion to file a supplemental brief.

Extended Summary: Appellant, Wayne Durham, was found to be an Armed Career Criminal under 18 U.S.C. § 924(e) (the "ACCA"). Durham challenged his sentence as substantively unreasonable, but failed to raise any issue involving application of the ACCA to his case. In June 2015, the Supreme Court issued Johnson v. United States, holding that the residual clause of the ACCA is unconstitutionally vague.

The Eleventh Circuit, en banc, granted Durham's motion to file a supplemental brief on the constitutionality of the ACCA's residual clause, receding from prior precedent and acknowledging the reasoning of other circuits. The court explained that where there is an intervening Supreme Court decision on an issue that overrules binding precedent and that provides appellant with a new claim or theory, the appellant may file a supplemental or substitute brief to raise the issue or theory in a timely fashion. Since the court granted the motion to file a supplemental brief, the motion to stay was denied as moot.

To view full opinion: http://media.ca11.uscourts.gov...les/201412198.enb.pdf

Argument: Non-Argument Calendar

Panel: Ed Carnes, Chief Judge, Tjoflat, Hull, Marcus, Wilson, William Pryor, Martin, Jordan, Rosenbaum, Julie Carnes, and Jill Pryor, Circuit Judges

Date of Issued Opinion: August 5, 2015

Docket Number: 14-12198 & 14-12807

Decided: Granted in part; denied, as moot, in part

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel: Margaret Y. Foldes et. al, for Appellant
Amit Agarwal et al, for Appellee

    Posted By: Gary Kravitz @ 09/16/2015 03:37 PM     11th Circuit     Comments (0)  

  Singh v. Caribbean Airlines, Ltd.
Headline: The Eleventh Circuit, in applying the core functions test, holds that the Minister of Finance of Trinidad and Tobago ("Minister") qualifies as a political subdivision of a foreign state.

Area of Law: Foreign Sovereignty

Issue(s): Whether the Minister qualifies as a political subdivision of a foreign state, thereby entitling Caribbean Airlines, Ltd. ("CAL") immunity from a jury trial under the Foreign Sovereign Immunities Act ("FSIA").

Brief Summary: Appellant, Soorajnine Singh ("Singh") filed a complaint against Appellee, CAL in state court. CAL removed the matter to the district court and sought to strike Singh's jury demand, claiming jury immunity under the FSIA. The district court granted the motion to strike. The Eleventh Circuit, applying the core functions test, affirmed.

Extended Summary: On December 15, 2011, Singh suffered a stroke on board a CAL flight. CAL is organized under the laws of Trinidad and Tobago and is majority-owned by the Minister. CAL moved to strike Singh's jury demand claiming it qualified as a "foreign state," as defined in the FSIA, and sought jury immunity. The district court granted CAL's motion to strike and, after a bench trial, found CAL not negligent.

On appeal, the Eleventh Circuit affirmed the district court's judgment, concluding the Minister was a political subdivision of Trinidad and Tobago, and thus, CAL qualified as an agency or instrumentality of the country. The court explained for purposes of asserting immunity from a jury trial under 28 U.S.C. § 1441(d), majority-owned subsidiaries of political subdivisions are entitled to foreign state status under the FSIA. The Eleventh Circuit adopted the core functions test as the appropriate standard to determine whether an entity qualifies as a political subdivision of a foreign state.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201414661.pdf

Panel: Marcus and Wilson, Circuit Judges, and Thapar (United States District Judge for the Eastern District of Kentucky, sitting by designation)

Argument: May 21, 2015

Date of Issued Opinion: August 20, 2015

Docket Number: 14-14661

Decided: Affirmed

Case Alert Author: Lizbell Lucero, Evelin Mac Clay, Evan Phoenix, and Daniel Villavisanis

Counsel: Charles M-P George for Appellants
John Maggio for Appellee

Author of Opinion: Wilson, Circuit Judge

    Posted By: Gary Kravitz @ 09/16/2015 01:54 PM     11th Circuit     Comments (0)  

April 20, 2015
  Zelaya v. United States- 11th Circuit
Headline: Eleventh Circuit finds the discretionary function and the misrepresentation exceptions apply to the general waiver of sovereign immunity under the Federal Tort Claim Act ("FTCA").

Area of Law: Government; Torts

Issue: Whether the discretionary function or misrepresentation exceptions to the sovereign immunity doctrine apply where the United States Securities and Exchange Commission ("SEC"), having information of a possible Ponzi scheme, failed to take action that may have prevented future losses.

Brief Summary: Carlos Zelaya and George Glantz ("Plaintiffs") sought to hold the SEC liable under the FTCA, alleging the SEC had breached two statutory duties through its inaction. The district court granted the Government's motion to dismiss, finding the SEC had sovereign immunity and was shielded from liability for its alleged negligence. The Eleventh Circuit affirmed the dismissal of both claims, finding the misrepresentation and the discretionary function exceptions applied to the SEC's general waiver of sovereign immunity under the FTCA.

Extended Summary: Plaintiffs invested into an Antiguan based company, Stanford Bank Ltd., as well as a series of entities operated by the bank, which turned out to be one of the biggest Ponzi schemes in American history. Despite four different investigations, the SEC failed to take any action against Stanford. The Plaintiffs filed two claims against the SEC under the FTCA. First, Plaintiffs argued the SEC had acted negligently in failing to notify the Securities Investor Protection Corporation ("SIPC"), pursuant to 15 U.S.C. § 78eee(a)(1), that Stanford Bank was running a Ponzi scheme. Second, Plaintiffs argued the SEC failed to revoke the bank's registration according to 15 U.S.C. § 80b-3(c). The district court initially granted the Government's motion to dismiss the registration claim, finding the discretionary function exception applied, but denied the motion as to the notification claim. Plaintiffs filed an amended complaint alleging only the notification claim. The district court granted the Government's motion to dismiss the claim based on the misrepresentation exception.

The Eleventh Circuit affirmed, finding the two exceptions to the general waiver of sovereign immunity applied. As to the registration claim, the court initially noted the SEC was not required to revoke a bank's registration under 15 U.S.C. § 80b-3(c), because that provision applied to granting or denying, rather than revoking, registration. The court further explained even if a duty existed, the SEC had discretionary authority to pursue violations of securities law, therefore the discretionary function exception under 28 U.S.C. § 2680(a) would apply. As to the notification claim, the court held the misrepresentation exception under 28 U.S.C. § 2680(h) applied to both miscommunication and non-communication by the Government. The court noted in order to overcome the application of the misrepresentation exception, Plaintiffs were required to show the Government breached an additional duty, distinct from the duty not to make a misrepresentation. Since Plaintiffs could not point to any separate "operational" duty the SEC had breached, the Eleventh Circuit affirmed the district court's dismissal of the Plaintiff's notification claim.

To view the full opinion: http://media.ca11.uscourts.gov...b/files/201314780.pdf

Panel: Tjoflat, Julie Carnes, and Gilman (United States Circuit Judge for the Sixth Circuit, sitting by designation)

Argument: September 11, 2014

Date of Issued Opinion: March 30, 2015

Docket Number: 13-14780

Decided: Affirmed

Case Alert Author: Astrid Lopez, Maria Catala, David Schnobrick, Khristopher Salado

Counsel: Gaytri Kachroo, et al. for Appellants
Steve Frank, et al. for Appellee, USA

Author of Opinion: Circuit Judge Julie Carnes

    Posted By: Gary Kravitz @ 04/20/2015 10:50 AM     11th Circuit     Comments (0)  

February 9, 2015
  Davila v. Gladden
Headline: Eleventh Circuit holds the Religious Freedom Restoration Act (RFRA) does not authorize money damages against government officers in their official capacity and even if the act authorized liability in their individual capacity, the officers in this case would be entitled to qualified immunity.

Area of Law: Constitutional

Issue(s) Presented: Whether RFRA authorizes money damages against officers in either their official or individual capacities.

Brief Summary: Appellant, Anthony Davila ("Davila"), filed a pro se complaint against a number of prison officials in their official and individual capacities, seeking money damages and injunctive relief. Davila alleged the prison officials violated his rights under RFRA. The district court dismissed all Davila's claims for money damages, and granted summary judgment as to the remaining claims for injunctive relief. The Eleventh Circuit reversed the district court's grant of summary judgment on the injunctive relief claim and affirmed the remainder of the district court's rulings.

Extended Summary: Davila, a federal prisoner and Santeria priest, was denied multiple requests for his personal set of beads and shells, which he claimed were infused with the spiritual force "Ache." The prison officials justified their denial based on a prison policy that requires all religious items to be brought in through approved vendors. Davila claimed the denial by prison officials violated his rights under the First Amendment and RFRA. The district court dismissed Davila's claims for money damages under RFRA and the First Amendment, and granted summary judgment in favor of the prison officials on all other claims.

The Eleventh Circuit, in addressing two issues of first impression, determined that Davila could not recover money damages under RFRA from prison officials in either their official or individual capacities. The court reasoned that Congress did not unambiguously waive sovereign immunity to authorize suits for money damages against officers in their official capacity when enacting RFRA. The court declined to address whether RFRA authorizes money damages against government officials in their individual capacity because the officers in this case would be entitled to qualified immunity. The Eleventh Circuit affirmed the dismissal of Davila's remaining claims, including its denial of monetary damages under RFRA. However, the Eleventh Circuit reversed the district court's grant of summary judgment on Davila's RFRA claim for injunctive relief.

To view full opinion: http://media.ca11.uscourts.gov...b/files/201310739.pdf

Panel: Martin, Julie Carnes and Anderson, Circuit Judges

Argument: October 17, 2014

Date of Issued Opinion: January 9, 2015

Docket Number: 13-10739

Decided: Affirmed in Part, Reversed in Part and Remanded

Case Alert Author: Astrid Lopez, Maria Catala, David Schnobrick, Khristopher Salado

Counsel (if known): John Christopher Amabile for Appellant
Sanjay S. Karnik for Appellees


Author of Opinion: Martin, Circuit Judge

    Posted By: Gary Kravitz @ 02/09/2015 01:38 PM     11th Circuit     Comments (0)  

November 18, 2014
  Patricia Franza v. Royal Carribbean-11th Circuit
Headline: Eleventh Circuit holds that a passenger may use actual or apparent agency principles to hold a cruise line vicariously liable for onboard medical negligence.

Area of law: Maritime

Issue: Whether a passenger may use apparent or actual agency principles to impute liability to a cruise line for onboard medical negligence.

Brief Summary: Appellant filed suit for medical negligence by a doctor and nurse on a cruise ship. The district court, finding no basis for either the actual agency or apparent agency claim, dismissed the complaint. The Eleventh Circuit reversed and remanded for further proceedings after finding that the claim could be brought under either basis.

Extended Summary: Pasquale F. Vaglio ("Vaglio"), an elderly cruise ship passenger, fell and suffered head injuries while a passenger on the vessel "Explorer of the Seas" which was docked in Bermuda. Vaglio sought medical attention from the ship's onboard nurse and doctor. He was ultimately transported to a hospital in Bermuda where he died. Patricia Franza ("Franza"), Vaglio's daughter filed a complaint alleging Royal Caribbean Cruise, Ltd. was vicariously liable for the purported negligence of the ship's doctor and its nurse, under actual or apparent agency theories. The district court applied the actual agency rule set forth in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) as a basis to dismiss the actual agency claim. The court also dismissed the apparent agency claim as inadequately pled.

The Eleventh Circuit, in a case of first impression, reversed. The appellate court found the complaint set out a basis for holding the cruise line liable under actual authority and rejected the line of authority relied on by the district court. In doing so, the court found the reasons for the Barbetta rule are no longer valid. Specifically, the court noted that passengers were regularly permitted to invoke vicarious liability in other maritime tort cases. Additionally, the court pointed to the widespread application of vicarious liability in medical negligence cases. Accordingly, the Eleventh Circuit found that the allegations of the complaint were sufficient to withstand the Rule 12(b)(6) motion to dismiss. The court also reversed as to apparent authority since the factual allegations supported a finding that the elements were adequately pled. Thus, the cause was reversed and remanded for further proceedings.

To view full opinion:

Text

Panel:Marcus and Anderson, Circuit Judges, and Goldberg (United States Court of International Trade Judge, sitting by designation).

Argument: May 22, 2014

Date of Issued Opinion: November 10, 2014

Docket Number: 13-13067

Decided: Reversed and Remanded

Case Alert Author: Arlene Marie Hernandez, Alain Enrique Roman, Greg Light, and Asheley Yvette Figueroa

Counsel: Phillip D. Parrish for Appellant Patricia Franza
Rodolfo Sorondo, Jr. for Appellee Royal Caribbean Cruises Ltd.

Author of Opinion: Judge Marcus

    Posted By: Gary Kravitz @ 11/18/2014 01:18 PM     11th Circuit     Comments (0)  

April 4, 2014
  Arcia, et al., v. Florida Secretary of State
Headline: Eleventh Circuit holds the National Voter Registration Act prohibits the State of Florida's attempt to systematically remove names from voter rolls within 90 days of a federal election.


Area of Law: Voting, Elections

Issue(s) Presented: Whether the State of Florida violated the 90 Day Provision of the National Voter Registration Act by conducting a program to systematically remove names from voter rolls.

Brief Summary: Numerous plaintiffs sued Florida Secretary of State Kenneth W. Detzner ("Secretary Detzner") for systematically removing names from the voter rolls within 90 days of the 2012 Florida primary and general elections. The District Court found no violation of the National Voter Registration Act (NVRA) and denied plaintiffs' motions for an injunction and summary judgment. The Eleventh Circuit reversed and remanded finding Secretary Detzner's removal of the names constituted a violation of the 90 Day Provision of the NVRA.

Extended Summary: The 90 Day Provision of the NVRA requires states to complete any systematic removal of ineligible voters 90 days before federal primary and general elections. In 2012, Secretary Detzner implemented two programs to remove non-citizens from Florida voter registries. The first program utilized DMV records to generate a list of registered voters who previously presented identification suggesting non-citizenship. Although this program was suspended at the end of April 2012, suspected non-citizens continued to be removed from the voter rolls within 90 days of Florida's primary election. The second program relied on the Department of Homeland Security's Systematic Alien Verification for Entitlements (SAVE) database. This program also continued to operate within the 90 day period before Florida's general election. The Eleventh Circuit found both programs violated the 90 Day Provision of the NVRA because the methods chosen were "systematic" efforts to remove ineligible voters, and they took place within 90 days of a federal election. Accordingly, the district court's grant of judgment for the Appellee was reversed. Circuit Judge Jordan issued a concurring opinion and Circuit Judge Suhrheinrich dissented.

Panel: Martin, Jordan and Suhrheinrich (United States Circuit Judge for the Sixth Circuit, sitting by designation).

Argument: October 10, 2013

Date of Issued Opinion: April 1, 2014

Docket Number: 12-15738

Decided: Reversed and Remanded

Case Alert Author: Henry Alvarez, Michelle Gonzalez, Kathryn Lecusay, Maxine Meltzer, Colette Peterson, Jesse Peterson, Raphael Sanchez

Counsel: Marc A. Goldman, counsel for Appellants
Michael Anthony, counsel for Appellee

Author of Opinion: Martin

    Posted By: Gary Kravitz @ 04/04/2014 02:15 PM     11th Circuit     Comments (0)  

April 2, 2014
  In re Walter Leroy Moody, Jr.
Headline: Eleventh Circuit holds recusal is not required in a case arising out of the 1989 murder of an Eleventh Circuit judge.

Area of Law: Criminal, Recusals

Issue Presented: Whether the recusal of all the judges in the Eleventh Circuit is required in a case arising from the 1989 murder of a Eleventh Circuit judge.

Brief Summary: Mr. Moody was convicted in state court of murdering Eleventh Circuit Judge Robert S. Vance in 1989. Ultimately, Mr. Moody filed a petition for habeas corpus in federal court. Mr. Moody also petitioned to the Eleventh Circuit for a writ of mandamus to transfer the matter outside the Eleventh Circuit and moved for the recusal of all judges on the appellate court. The Eleventh Circuit denied his motion for recusal and mandamus petition.

Extended Summary: In 1989, Walter Moody mailed a series of packages containing bombs, one of which killed Judge Robert S. Vance. Mr. Moody was convicted of the murder in state court. After filing a federal petition for a writ of habeas corpus, Mr. Moody petitioned for a writ of mandamus ordering the recusal of the assigned district judge. Mr. Moody also filed a motion for recusal of all judges sitting on the Eleventh Circuit. The Eleventh Circuit denied the relief, noting that none of the panel members had a close personal or professional relationship with Judge Vance or his family and none were members of the federal judiciary at the time of the murder. The court also determined that none of the appellate judges had an interest that could be substantially affected by the outcome of Mr. Moody's case. In its reasoning, the court considered the remoteness of the interest and its extent or degree. The court also denied the request to recuse the district judge, noting that he had no close connection to Judge Vance or his relatives, was not in the federal judiciary at the time of crime, and was not part of the original investigation and prosecution.

To view opinion: http://www.ca11.uscourts.gov/o...ops/201312657.op2.pdf

Panel: Wilson, Martin and Jordan

Date of Issued Opinion: March 12, 2014

Docket Number: 13-12657

Decided: Motion for Recusal of Panel Denied; Mandamus Petition Denied.

Case Alert Author: Henry Alvarez, Michelle Gonzalez, Colette Petrerson, Kathryn Lecusay, Maxine Meltzer, Jesse Peterson, Raphael Sanchez

Author of Opinion: Per Curiam

    Posted By: Gary Kravitz @ 04/02/2014 10:54 AM     11th Circuit     Comments (0)  

February 20, 2014
  Feaz v. Wells Fargo Bank, N.A.
Headline: Eleventh Circuit holds flood insurance covenant in FHA mortgage contracts imposes the minimum coverage amount.

Area of Law: Banking, Mortgages

Issue(s) Presented: Whether the flood insurance covenant in FHA mortgage contracts imposes the minimum or maximum coverage amount.

Brief Summary: Faire Feaz ("Ms. Feaz") appealed the dismissal of her breach of contract claim against her lender. The Eleventh Circuit affirmed based on its interpretation of the flood insurance covenant in FHA mortgage contracts, concluding that the standard form language imposes a minimum coverage amount a borrower must have.

Significance (if any):

Extended Summary (if applicable): Ms. Feaz obtained $63,000 of flood insurance coverage on her home for an FHA issued mortgage from her initial lender. In 2003, Wells Fargo acquired the mortgage and Ms. Feaz renewed her flood insurance. In 2007, Wells Fargo required Ms. Feaz to increase her flood-insurance coverage to $250,000 or the home's replacement value, whichever was less. After she failed to do so, Wells Fargo force-placed the insurance and passed the premium cost to her.

The district court granted Wells Fargo's motion to dismiss, rejecting Ms. Feaz's claim that the force-placed insurance was a breach of contract. The Eleventh Circuit affirmed, finding the covenant requiring the borrower to insure "to the extent required by the Secretary" of HUD, unambiguously makes the federally mandated flood insurance amount the minimum, not the maximum requirement for coverage. The Eleventh Circuit, noting a split on the issue, agreed with the courts that declared the amount to be a minimum. The court relied upon the unique nature of a government-drafted contract, in which the intent of the contracting parties' is not determinative. Additionally, the court noted the language of the mortgage contract and the federal regulations in support of its conclusion.

To view opinion: http://www.ca11.uscourts.gov/o...ons/ops/201310230.pdf


Panel (if known): Carnes, Chief Judge; Dubina, Circuit Judge, and Rosenthal (United States District Judge for the Southern District of Texas, sitting by designation)

Argument (if known): November 20, 2013

Date of Issued Opinion: February 10, 2014

Docket Number: 13-10230

Decided: Affirmed

Case Alert Author: Henry Alvarez, Michelle Gonzalez, Colette Largo, Kathryn Lecusay, Maxine Meltzer, Jesse Peterson, Raphael Sanchez

Counsel (if known): Mark R. Freeman, Amicus Curiae United States of America
Stanley P. Baudin, Appellant Faire Feaz
Jan T. Chilton, Appellees Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage, Inc.

Author of Opinion: Judge Rosenthal

    Posted By: Gary Kravitz @ 02/20/2014 09:52 AM     11th Circuit     Comments (0)  

November 20, 2013
  Donawa v. United States Attorney General
Headline: Eleventh Circuit holds conviction for possession of cannabis with intent to sell or deliver under Florida law is not an aggravated felony for purposes of discretionary cancellation of removal.

Area of Law: Immigration, Criminal

Issue(s) Presented: Whether a conviction under Florida law for possession with intent to sell or deliver is an aggravated felony for purposes of federal law, thus precluding discretionary cancellation of removal.

Brief Summary: Petitioner appealed the decision of the BIA finding him ineligible for the discretionary cancellation of his removal based on the contention that his conviction for possession with intent was not a drug trafficking aggravated felony. The Eleventh Circuit agreed based on a finding that the Florida statute lacked the knowledge requirement found in the corresponding federal drug statute.

Extended Summary (if applicable): After being convicted in state court for possession of cannabis with intent to sell or deliver under Florida Statute section 893.13(1)(a)(2), the Department of Homeland Security began removal proceedings against Dwight Donowa, a native and citizen of Antigua. The Immigration Judge found him removable and ineligible for cancellation of removal proceedings based on his conviction for an aggravated felony. The Board of Immigration Appeals affirmed the decision.

On appeal, Donowa contended that he was eligible for discretionary cancellation of removal because his conviction was not a drug trafficking aggravated felony as a matter of law. After applying the categorical approach and comparing the elements of section 893.13(1)(a)(2), Florida Statutes, and the corresponding federal statute, 21 U.S.C. § 841 (a)(1), the court agreed. In reaching this conclusion, the court noted that Florida law treats the lack of knowledge of the nature of the substance as an affirmative defense of the crime whereas the federal statute includes knowledge as an element the government must prove. Therefore, the court remanded to allow Donowa an opportunity to assert his eligibility for cancellation of removal.

To view full opinion: http://www.ca11.uscourts.gov/o...ons/ops/201213526.pdf

Panel (if known): Martin, Jordan and Suhrheinrich (United States Circuit Judge for the Sixth Circuit, sitting by designation).

Argument (if known): October 11, 2013

Date of Issued Opinion: November 7, 2013

Docket Number: 12-13526

Decided: Petition Granted, Vacated and Remanded

Case Alert Author: Nicholas Chotos, Ilan Kairy, James Ryan, Inalvis Zubiaur

Counsel (if known): Michael Vastine, counsel for Petitioner
Ernesto Molina, counsel for Respondent

Author of Opinion: Martin

    Posted By: Gary Kravitz @ 11/20/2013 05:04 PM     11th Circuit     Comments (0)  

December 5, 2012
  United States v. Bellaizac-Hurtado - 11th Circuit
Headline: Eleventh Circuit finds that drug trafficking is not an "Offence[] against the Law of Nations" under the Offences Clause.

Area of Law: Criminal/Constitutional

Issue(s) Presented: Whether the district court committed various legal errors in connection with defendant's trial and sentencing.

Brief Summary: Several individuals were convicted on drug charges brought pursuant to the Maritime Drug Law Enforcement Act. The charges arose from the discovery of cocaine in a fishing boat the defendants were operating in the territorial waters of Panama. On appeal, the Eleventh Circuit found that under the Offences Clause, Congress had the power to punish violations of customary international law and drug trafficking was not such a violation. Therefore, Congress had exceeded its power under the Constitution and the court vacated the defendant's convictions.

Argument (if known): 8/31/2012

Date of Issued Opinion: 11/6/2012

Docket Number: 10-3916-cr

Decided: Vacated

Counsel (if known): For Appellants: Tracy Michele Dreispul
For Appellee: Jonathan Colan

Author of Opinion: Pryor

Edited: 12/12/2012 at 10:18 AM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/05/2012 12:04 PM     11th Circuit     Comments (0)  

FuseTalk Enterprise Edition - © 1999-2017 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top