Notice of Appeal

11th Circuit on Arbitration, Immigration and Mayor Campbell

Last week, the Eleventh Circuit finished out the week with a wide variety of issues, ranging from a decision on the scope of an NASD arbitration agreement, to an interesting immigration case addressing the United States' protection to the husband of a woman subject to China's family planning laws, to the reasonableness of the former Atlanta mayor's sentence for tax evasion.

Starting with the last case first, in USA v. Campbell, the Eleventh Circuit affirmed the reasonableness of former Atlanta Mayor Bill Campbell's sentence resulting from his conviction for tax evasion (although he was acquitted of RICO). Far from questioning the reasonableness of the sentence, the panel questioned whether it was sufficiently severe, but because (as the panel complained in a footnote) the government did not cross-appeal, the court did not have the opportunity to address whether the 30-month sentence should have been higher. And, the details of the opinion generally reflect the view that Campbell should consider himself lucky he was only convicted of tax evasion and only got 30 months.

Embedded in this opinion is the court's recognition of a potential issue brought to the fore by the recent U.S. Supreme Court case of Rita v. United States: the Eleventh Circuit (post-Booker) has, in contrast with other circuits, held that a sentence within the guidelines range is not necessarily presumptively reasonable. It did so for reasons that are potentially undermined by the reasoning in Rita, however, and in Rita the Supreme Court affirmed circuit decisions affording such a presumption. In the Campbell opinion, the court resists such a presumption, although seemingly inviting an en banc petition or cert petition on the issue. (Note: Campbell also challenged the district court's disqualification of his first counsel, Craig Gillen, whose partner, Buddy Parker, represented one of the coconspirators who pled guilty and was to testify against Campbell, but the Eleventh Circuit found the district court did not abuse its discretion in doing so.)

Georgia Court of Appeals on Swearing the Jury...

Yesterday, the Georgia Court of Appeals issued just one opinion, in the case of Benton v. State, 2007 WL 1965665. The defendant claimed his conviction (at trial by a jury) must be reversed because the jury was not sworn. Indeed, the record did not affirmatively reflect that the jury was sworn. But, not so fast, says the court -- the presumption is that the judge discharged all his duties, including the swearing of the jury. Accordingly, the defendant must affirmatively show (via an evidentiary hearing in the trial court) that it is not merely a case of the court reporter failing to record the swearing of the jury, but that the judge actually failed to perform his duty. The conviction was affirmed.

11th Circuit today

In the haze of these summer months, we have been remiss in bringing you recent cases on a day-to-day basis. In the interest of bringing you the newest of the news, we will pick up with today's cases and keep moving forward to keep you abreast of the latest legal developments. Meanwhile, we will also periodically bring you summaries cases decided in the last several weeks that merit special attention.

We have two 11th Circuit cases today -- one is a Chapter 11 case analyzing a fraudulent transfer, and the other addresses calculation of the value of counterfeit goods in a sentencing case.

11th Circuit Recent Opinions

Yesterday in the 11th Circuit, the Court reversed and remanded Harris v. Coweta County (involving a sheriff's ramming a car to stop a suspect), based on the Supreme Court's decision in the case, styled Scott v. Harris in that court. Our previous discussion of the Supreme Court's decision in that case, reversing the 11th Circuit, is here.

On Friday, the Eleventh Circuit released three published opinions in civil cases involving a FOIA request investigating FEMA's management of hurricane disaster assistance, a Burger King franchisee's standing to bring a false advertising claim against McDonald's, and application of the FLSA to a domestic service employee (applying the Supreme Court's recent opinion in Coke v. Long Island Care at Home).

11th Circuit oral argument en banc -- a securities case

An alert BME intern was down at the 11th Circuit today for en banc arguments, and had the following report:

The Eleventh Circuit heard oral argument en banc today in Steven I. Weissman v. National Association of Securities Dealers, Inc. et al.  The issue before the court was whether NASDAQ enjoyed absolute immunity as a self-regulatory organization (SRO) for the advertisements described in Weissman’s complaint. The complaint contained the allegation that:

Georgia Supreme Court -- Election Decisions

On Monday, the Georgia Supreme Court issued seven more opinions, including the much awaited decision on the Photo ID case, a case about a Randoph County Board of Commissioners election, and another case involving elections for the Carroll County Board of Education -- just in time for special elections coming up as early as Tuesday June 17. This post covers these election-related decisions -- even though none were decided on substantive grounds.

First, in Perdue v. Lake, an appeal of the injunction issued by a superior court against the enforcement of the 2006 version of the act requiring a photo ID to vote, the Georgia Supreme Court found that plaintiff Lake did not have standing to challenge the act.

11th Circuit -- Recent Cases

The 11th Circuit has released 18 opinions in the last couple of weeks, and we'll summarize them here over the next few postings. Briefly, though, four of the opinions (Rivera, Delgado, Niftaliev and Morales) address similar asylum or withholding of removal claims; and five of the opinions (Martinez, Presley, Dean, Quirante, and Thomas) address various criminal issues, the latter two primarily related to sentencing.

Of the civil cases, two (Edwards and Bodie) interpret Alabama law, two (Asbestos Settlement Trust and Smith) involve some federal procedural issues, and two (Jordan and Dyer) are Section 1983 cases. Finally, there is an interesting decision regarding applicability of the student exception to FICA to medical residents (USA v. Mt. Sinai), a 1st Amendment case involving a South Beach dance club and a noise ordinance (DA Mortgage), and a case analyzing whether the FLSA applies to travel to and security screening at the worksite (Bonilla).

Stay tuned for more details...

U.S. Supreme Court today

Turning to the nation's highest court, SCOTUS issued 3 signed opinions today, including

• a ruling that establishes a deferential standard on review of a trial court's decision whether to remove a potential juror from a death case based on his or her views of capital punishment,
• another ruling that reverses the Eleventh Circuit (in a case involving a nude peace sign display), holding that attorneys' fees under Section 1988 cannot be awarded if the plaintiff wins the preliminary injunction battle, but loses the lawsuit war,
• and an opinion holding that the standard for finding a "willful" violation of the notice obligation under the Fair Credit Reporting Act (which entitles the plaintiff to additional damages, including punitives) includes not just knowing violations, but also reckless disregard of the notice obligation.

The Ninth Circuit was on the losing end of both the capital punishment case and the FCRA case (even though the court correctly interpreted the willfulness standard).

The Court also...

Georgia Supreme Court issues 27 opinions

The Georgia Supreme Court today issued 27 opinions.  The count is: 5 general civil cases (including a major tort reform decision, discussed below), 6 domestic cases, 3 habeas cases, 12 criminal cases (including 8 involving murder and/or life sentences), and 1 attorney discipline case.  The opinions are available here and the summaries are here.

Over the next week we will be catching you up on court of appeals decisions (both 11th Circuit and Georgia), as well as this fresh batch of Georgia Supreme Court decisions.

The headline case from today's releases is the decision in the pair of cases, Fowler Properties, Inc. v. Dowland, and vice versa, holding the new offer of judgment statute, OCGA § 9-11-68, unconstitutional as applied to cases filed prior to the statute's enactment. In this slip-and-fall case originally filed in December 2002, the defendant made an offer of judgment of $20,000 after the statute was enacted -- an offer to which the plaintiff did not respond. When the jury found in the defendant's favor at trial, it moved for attorneys' fees pursuant to the statute, which the trial court found reasonable, but denied on the ground that the statute was unconstitutional (on a variety of grounds).

U.S. Supreme Court today

Five opinions were just issued -- SCOTUSBlog has the details. (None involve review of an 11th Circuit decision, however.)