539 F. App'x 952
11th Cir.2013Background
- Weiss was convicted on 78 counts related to a NHLIC defraud scheme.
- He contends the government violated his Sixth Amendment right to counsel by subpoenaing his longtime attorney Leventhal, allegedly causing de facto disqualification.
- He argues the trial court failed to provide a unanimity instruction distinguishing the wire fraud predicate (money or property) from depriving honest services.
- Leventhal had represented Weiss since 1995; documents he provided were later found to be false, though Leventhal was unaware of their falsity.
- The government subpoenaed Leventhal in July 1998; the district court quashed the subpoena but allowed Leventhal to testify after a dispute.
- The Eleventh Circuit affirmed, finding no prosecutorial misconduct and no plain-error in regard to unanimity instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Counsel-subpoena Sixth Amendment claim | Weiss argues de facto disqualification of chosen counsel. | Weiss contends government acted in bad faith; this is structural error. | No Sixth Amendment violation; no evidence of bad faith; conflict existed anyway. |
| Unanimity on wire fraud predicate | Weiss contends must unanimously decide the nature of the scheme. | district court lacked specific unanimity instruction; not required. | Not plain error; general unanimity sufficient. |
Key Cases Cited
- Schad v. Arizona, 501 U.S. 624 (1991) (unanimity on alternative means not required if element proven)
- Richardson v. United States, 526 U.S. 813 (1999) (unanimity on elements; not on means)
- United States v. Felts, 579 F.3d 1341 (11th Cir. 2009) (plain-error standard for unraised issues)
- United States v. Woodard, 459 F.3d 1078 (11th Cir. 2006) (unanimity instruction discussion (not controlling on plain error))
- United States v. Eckhardt, 466 F.3d 938 (11th Cir. 2006) (standard for reviewing prosecutorial-misconduct questions)