Securities and Exchange Commission v. Dianne Alexander
688 F. App'x 774
| 11th Cir. | 2017Background
- The SEC sued Dianne Alexander (and co-defendant McClintock) for an alleged Ponzi scheme that raised over $15 million from 220+ investors.
- Alexander signed a consent order agreeing to a permanent injunction, disgorgement and a penalty, waivers (no findings of fact/conclusions of law, no jury trial, no appeal of the injunction), and that she would not later contest the allegations or validity of the order.
- The district court accepted the consent order and entered final judgment; Alexander did not challenge the agreement before entry of judgment.
- Two months after final judgment, during receiver contempt proceedings, Alexander claimed she signed under duress and lacked capacity (PTSD, traumatic brain injury, heavy medication) and sought new counsel; her motions were denied or untimely.
- Alexander later alleged ineffective assistance of counsel and, in reply brief, a Miranda-based claim about counsel failing to advise about a waiver; the district court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alexander could rescind the consent order | Alexander: she lacked capacity and signed under duress; therefore consent should be rescinded | SEC: Alexander waived the right to contest the consent order by agreeing and failing to timely object | Court: Waived — raising rescission only after final judgment and in contempt proceedings was untimely and amounted to waiver |
| Whether the district court erred by not holding an evidentiary hearing on rescission | Alexander: district court should have granted a hearing on capacity/duress | SEC: no timely request or basis to require a hearing; issues were raised too late | Court: Waived for failure to timely request a hearing; no abuse of discretion in denying one |
| Whether counsel rendered ineffective assistance re: consent order | Alexander: counsel coerced/failed to protect her interests in signing consent | SEC: civil cases do not guarantee effective-assistance-of-counsel rights like the criminal context | Court: Claim fails as a matter of law because there is no constitutional right to effective counsel in civil cases |
| Whether Miranda-based waiver claim is reviewable | Alexander: counsel failed to inform her the consent order waived right to remain silent | SEC: argument was raised for first time in reply and is waived; Miranda remedies apply only in criminal context | Court: Waived and meritless — Miranda suppression remedy is criminal only |
Key Cases Cited
- Menchise v. Akerman Senterfitt, 532 F.3d 1146 (11th Cir. 2008) (standard of review for denial of evidentiary hearing)
- Johnson v. Florida, 348 F.3d 1334 (11th Cir. 2003) (abuse-of-discretion review for consent-order modification)
- Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004) (preservation and waiver rules on appeal)
- In re Pan Am. World Airways, 905 F.2d 1457 (11th Cir. 1990) (issue preservation requirement to afford district court opportunity to rule)
- Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010) (waiver by raising issues too late)
- United States v. Millet, 559 F.2d 253 (5th Cir. 1977) (untimeliness may constitute waiver)
- Mekdeci v. Merrell Nat'l Labs., 711 F.2d 1510 (11th Cir. 1983) (no constitutional right to effective assistance of counsel in civil cases)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (adopting pre-1981 Fifth Circuit precedent as binding)