Jеsus AGUERO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 13-14746
United States Court of Appeals, Eleventh Circuit.
Sept. 12, 2014.
Non-Argument Calendar.
That the fraud occurred in a bankruptcy proceeding rather than a criminal offense is irrelevant. The purpose of the lien is to prevent unjust enrichment. Allowing Bifani to fraudulently transfer property to LaMarca to avoid his creditors, allowing LaMаrca to use the proceeds from the properties to purchase a home, and then allowing Bifani to live in that home with LaMarca rent free with no remedy for the bankruptcy trustee is entirely unjust. Accordingly, we conclude that the bankruptcy court properly imposed an equitable lien on the Sarasоta property, and the district court erred by reversing. The district court‘s order is affirmed in part, reversed in part, and remanded for the district court to impose the equitable lien.
AFFIRMED in part, REVERSED in part.
Kathleen Mary Salyer, Dawn Bowen, Wifredo A. Ferrer, Edward Norman Stamm, U.S. Attorney‘s Office, Miami, FL, for Respondent-Appellee.
Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Jesus Aguero, a former federal prisoner,1 proceeding with cоunsel, appeals the district court‘s denial of his
At trial and later on direct appeal, Aguero argued that the evidеnce was insufficient under United States v. Veal, 153 F.3d 1233 (11th Cir.1998), to show a “likelihood” that his misleading conduct would be communicated to federal authorities. We affirmed Aguero‘s convictions. United States v. Ronda, 455 F.3d 1273, 1285 (11th Cir.2006). Applying the rationale in Veal, which said that the government need only show that there was a “possibility” or “likelihood” that communication would be made to federal authorities, we concluded thаt the evidence was sufficient to show that Aguero‘s misleading conduct was “likely” to be communicated to federal authorities. Id.
Aguero filed a
- Whether Aguero preserved a challenge to the sufficiency of the evidence of a federal nexus for his convictions
- Assuming that Aguero‘s claim is preserved, whether any error was harmless.
On appeal, Aguero argues that he preserved a challenge to the sufficiency of the evidence of a federal nexus for his convictions. He further argues that he attacked the Veal standard at trial and on direct appeal. Moreover, given that Veal was binding precedent at the time, he says by objecting to the application of the Veal standard, he preserved a challenge to the standard itself. Aguero also contends that the failure to employ the Fowler standard at his trial was not harmless.
In reviewing a “district court‘s denial of a
The Antiterrorism and Effective Death Penalty Act (“AEDPA“) imposes a one-year statute of limitations for filing a
- the date on which the judgment of conviction becomes final;
- the date on which the impediment to making a motion crеated by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from filing by such governmental action;
- the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
- the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
The Supreme Court has explained that its decisions “holding that a substantive federal criminal statute does not reach certain conduct necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.” Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (quotation omitted). Accordingly, decisions that narrow the scope of a criminal statute by interpreting its terms generally apply retroactively. See Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004) (citing Bousley, 523 U.S. at 620-21, 118 S.Ct. at 1610). Any court may
Under the procedural default rule, a defendant who fails to raise an available challenge to a criminal conviction on direct aрpeal is barred from raising that claim in a collateral proceeding. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.2011). To preserve an argument for collateral review, a party must “plainly and prominently” raise the issue on direct appeal. Brown v. United States, 720 F.3d 1316, 1332 (11th Cir.2013), petition for cert. filed, (U.S. Feb. 24, 2014) (No. 13-8899, 13A607) (concluding that defendant‘s § 2255 claim was procedurally defaulted because defendant fаiled to cite the relevant law and make legal argument on the pertinent issue in his brief on direct appeal). A procedural default may be excused, however, if one of two exceptions applies: (1) cause and actual prejudice, or (2) actual innocence. Bousley, 523 U.S. at 622, 118 S.Ct. at 1611.
In Brecht, the Supreme Court determined that the appropriate standard for harmlessness of a non-structural constitutional error on collateral review is whether the error “had substantial and injurious effect or influence in determining the jury‘s verdict.” 507 U.S. at 623, 113 S.Ct. at 1714. An error is not harmless if the court is “in grave doubt about whether a trial error of federal law had substantial and injuriоus effect or influence in determining the jury‘s verdict.” O‘Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995) (quotation omitted).
We have applied the Brecht harmless-error review standard to non-structural constitutional errors on collateral review. See Ross v. United States, 289 F.3d 677, 681-82 (11th Cir.2002). A non-structural constitutional error “occurs during the presentation of the case to the jury” and can be “assessed in the context of other evidence presented in order to determine the effect it had on the trial.” Brecht, 507 U.S. at 629, 113 S.Ct. at 1717 (quotation and alteration omitted). A structural error, on the other hand, only occurs in cases where there are “extreme deprivations of constitutional rights, such as denial of counsel, denial of self representation at trial, and denial of a public trial.” Ross, 289 F.3d at 681.
Section 1512(a)(1)(C) of Title 18 provides in relevant part that, “Whoever kills another person, with intent to . . . prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . shall be punished.”
In Fowler, the Supreme Court considered whether a violation of
The Supreme Court vacated our decision. The Court concluded that to establish a violation of
As a preliminary matter, the magistrate judge correctly determined that Aguero‘s
Here, the parties agree that Aguero preserved a challenge to the sufficiency of the evidence of a federal nexus for his convictions, at least as far as that challenge rests on the Veal “possibility” standard. The claim Aguero raises in his
Aguero cannot show that the failure to utilize the Fowler standard at his trial “had substantial and injurious effect or influence in determining the jury‘s verdict.” See Brecht, 507 U.S. at 623, 113 S.Ct. at 1714; Fowler, 563 U.S. at —, 131 S.Ct. at 2052. He does not cоntest that the evidence at trial showed that he planted evidence at police-related shootings and provided misleading sworn statements to investigators. Instead, he argues that no evidence showed a “reasonable likelihood” that the transmission of information related to these shootings would be transfеrred to federal authorities. But ample, to an extent undisputed, evidence showed “the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.” See Fowler, 563 U.S. at —, 131 S.Ct. at 2052. Evidence at trial showed a working relationship between the MPD and the federal government, that а massive investigation results each time a police-related shooting occurs, and that standard practice existed of forwarding information from questionable shootings to the FBI. So, we have no significant doubt—much less have grave doubt—that the jury would have found that “the likelihood of communication to a federаl officer was more than remote, outlandish, or simply hypothetical.” See Fowler, 563 U.S. at —, 131 S.Ct. at 2052. The evidence shows that it was “reasonably likely” that the misleading information from Aguero and his coconspirators would be transferred to federal authorities; thus that the Veal standard governed at the time of Aguero‘s trial had no “substantial and injurious effect or influence in determining the jury‘s verdict.” See Brecht, 507 U.S. at 623, 113 S.Ct. at 1714.
Furthermore, that the Veal “possibility” standard was the legal, applicable standard in our Circuit at the time of Aguero‘s trial did not influence the jury‘s verdict in fact: neither the government argued to nor the district court instructed the jury per Veal that no more than a mere possibility of a communication to federаl officers was required for conviction. Aguero and his codefendants objected at the charge conference to the district court‘s suggestion that the jury be instructed that the “misleading information is likely or possibly to be transferred to a federal law enforcement officer.” The district court ultimately instructed the jury оnly that the government must prove beyond a reasonable doubt that “the defendant intended to hinder, delay, or prevent communication of information to a law enforcement officer or Judge of the United States.” This statement tracks the language of the statute, is not error, and is unchanged by Fowler, which is an elaborating intеrpretation of the intent language. See
AFFIRMED.