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.