*1 1122 31, Corp., speech Bose 466 at 514 n. 104 publisher
See U.S. commercial for which provided S.Ct. at 1967 n. 31. majori- a forum or billboard. The ty’s thorough opinion does a remarkable ample jury We find that the had job tackling of unique question, I grounds publication for finding that SOF’s fully agree imaginative interpreta- with its cause Savage’s proximate of ad was the of precedent. Nevertheless, of tion scant I recognizes appellees’ injuries. Georgia law majority’s differ with the application of the that, intervening “[generally, criminal law to the facts of Specifically, this case. which party, act of a third without discharging duty independent our occurred, injury not have will be would first language amendment review of the inju cause of the proximate treated as ad, Savage’s 1121-1122, see ante at I re- ry, negligence of the superseding any defendant....” language main convinced that the Enterprises, Cox Rosinek v. ambiguous, advertisement is rather than 699, 393, Inc., Ga.App. 166 305 S.E.2d 394 patently majority criminal as the believes. (1983). If, however, “the criminal act was although And carefully has reasonably consequence foreseeable legal applies culled the standards it from conduct, the defendant’s the casual connec instructions, jury I remain concerned injury between that conduct and the is tion over whether the instructions were clear 394-95; not broken.” 305 at S.E.2d see enough jury that the could have done so as States, 722 also Craine v. United F.2d Because of well. the confluence of these 1523, (11th Cir.1984). 1525 We have al ambiguity two concerns—the of both the ready language Savage’s held that the jury advertisement and the instructions —I reasonably pru ad should have alerted a am not jury actually confident that publisher dent clearly identifiable found that this advertisement was a clear Savage unreasonable risk that was solicit activity. solicitation for criminal Under ing illegal jobs. It violent follows that circumstances, these I uphold am unable to jury could reasonable conclude that the crushing third-party liability jury appellees criminal act that harmed was rea n imposed has and, Maga- Soldier of Fortune sonably accordingly, foreseeable I respectfully zine. dissent. the chain of causation was not broken. reasons, For foregoing we AFFIRM judgment.
the district court’s
AFFIRMED. ESCHBACH, Judge, Senior Circuit America, UNITED STATES of dissenting: Plaintiff-Appellee, poses specific This ease a difficult and v. question of for which law we have little Engin Kamil YESIL and Yalie guidance. imposes The First Amendment Defendants-Appellants, ability subject strict limits on states’ publishers liability to tort for defamations America, UNITED STATES of they publish. Welch, Inc., v. Robert Gertz Plaintiff-Appellee, 2997, 41 U.S. 94 S.Ct. L.Ed.2d 789 v. (1974); Sullivan, v. New York Times DEPPE, Gert Glenn “Vern” a/k/a U.S. 84 S.Ct. L.Ed.2d 686 Lnu, Defendant-Appellant. (1964). broadly While this case is analo- gous in that it involves constitutional re- 91-3443, Nos. 91-3567. strictions on applied state tort as law Appeals, States Court of publishers, presents it a number of tortu- Eleventh Circuit. ous twists. We must determine whether Aug. the First ability Amendment limits states’ subject publishers liability to tort wrongful wrongful death actions where
death third-party’s was facilitated *2 Bierman, Perry, Bi- Pamela I.
Donald I. P.A., erman, Shohat, Loewy Perry, & Mia- mi, Fla., for Yesil and Golan. Dawson, Leavenworth, Kan., M. Thomas Deppe. Hawkins, Jancha, L. Cynthia R. Rick Attys., Or- Spaulding, Karla R. Asst. U.S. Fla., lando, for U.S. HATCHETT,
Before and Golan to continue KRAVITCH *, On November the district Judges, Circuit and BROWN Senior stamped the motion “Denied and So Or- Judge. Circuit
dered.” KRAVITCH, Judge: Circuit procuring After letters from both the *3 (FBI) Investigation I. THE CASE Federal Bureau of STATEMENT OF and Drug the Enforcement Administration cases, two in- This consolidates (DEA), government the and defendants volving three defendants. Each case raises motion, joint filed another dated November question: the a district same whether 13, 1990, reconsider sentencing to the date. may prevent government the from fulfill- The motion stated that Yesil and Golan had ing obligations its under a “major group” infiltrated a heroin “top accepted agree- has the after that court priority,” coopera- and that their continued consequently provided ment and not the necessary. tion was The motion stressed opportunity defendants an to withdraw appellant any prior neither had in- guilty pleas. pleas involved in ap- volvement with heroin but had been required these cases each defendant to co- proached by traffickers and had used the operate obligated the with and contact with the traffickers to assist the government, upon completion of such Again, United States. the court denied the cooperation, fully apprise to the court of sentencing hearing. motion to continue the the nature and extent of defendants’ ac- DEA, however, To accommodate the cases, tions. In both the defendants and delayed reporting Yesil and Golan’s government appeal the district court’s date. grant evidentiary hearing failure to on On November the district court the issue of defendants’ sentencing hearing conducted the as sched- Lees, agent, Greg uled. The with whom A. Defendants Yesil and Golan cooperating Yesil and Golan had been was August appellants Engin In Yesil present. following discourse took (“Yesil”) (“Golan”) pleaded and Yalie Golan place, during which indicated 1) guilty to an charging conspir- indictment adjust that a future Rule 35 motion to acy possess to cocaine intent with to dis- sentencing would based be 2) tribute distribution of cocaine. appropriate: illegal place prior Their conduct took to the Honor, Lees, Greg AUSA: Your this is effective date of the United States Sentenc- up he’s come from South Florida to ing (U.S.S.G.). part Guidelines As of their address the Court. You have some plea agreements, agreed defendants to “co- letters from him. He’s one that operate fully government.” they’re working with. return, government agreed to “advise course, Court: anything hap Of the Court as to the nature and extent of pens subsequent to this would be un cooperation.” the Defendants’ , problem der Rule 351 I have no that. sentencing The court set for November 2, 1990, Yesil, 1990. On November Agent: your I don’t know if Honor joint and the filed a just wants to look at this. It’s some delay motion figures to enable Yesil facts and of what we have * Brown, Bailey person Honorable Senior U.S. Circuit of another who has committed an of- Circuit, Judge sitting by designa- fense, for the Sixth guidelines in accordance with the tion. policy Sentencing statements issued 35(b) pursuant provides: Commission to section of title Fed.R.Crim.P. (b) authority United States Code. The court's Changed Correction of Sentence for Cir- court, to lower a sentence under this subdivision cumstances. The on motion of the Government, may year authority within one after the includes the to lower such sentence sentence, imposition of a lower a sentence to to a level below that established statute as subsequent, reflect a defendant's substantial a minimum sentence. investigation prosecution assistance in the or Subsequent sentencing, pursu- and Yesil to Mr. Golan
done so far. locking plea agreements, Yesil and ant to their responsible date have been taking seven Golan continued assist people and about up four drug investigations. and a with On March coke off the streets pounds of motion, Yesil and Golan filed a couple of vehicles. government joined, for reduction which try- Now, currently at this time we’re pursuant 35(b). In of sentence to Rule drug very significant ing get into a motion, parties urged the court Flor- in South trafficking group down evidentiary hearing so that testi- importing both cocaine and who are ida mony presented detailing could the na- be heroin, quite of course we’re so cooperation by ture and Yesil and extent getting people. these interested *4 Golan. The motion included some of the very cooperative with me They’ve been concerning cooperation, their but in facts they everything that and have done way detailed the full extent of their no should have. The motion need infiltration. stressed the ongoing youDo need them on an Court: hearing for an in camera due sensi- investigation. ongoing investigation: nature of the tive Yes, Agent: sir. Attached to this motion as Exhibit and long? Court: For how Exhibit 2 are letters from Detective Lees Well, of going that’s to be kind Agent: Bolán, setting Agent and forth the De- say give an your Honor. I would up to fendants’ and the fact that six months. approximate date of actively in the Defendants are involved right. Reporting All date. Court: ongoing investigations. In view several out, point And I would Defense counsel: of sensitive nature of the Defendants confirm, Judge, as Mr. Lees can that by continuing cooperation, the letters are people. are all new other that these necessity mere of the De- abbreviation words, just turn on their they didn’t such, activity. As fendants’ extensive they had re- colleagues, former been request oppor- the Defendants would and they went out risked— tired tunity present in detail to the Court to course, they signifi- in Court: Of were coopera- of their the nature and extent they cantly retired. before Attorney tion. United States Assistant I understand that. Defense counsel: to Hawkins has authorized us Cynthia people that were I think these AUSA: represent to this Honorable Court us, to I can confirm that. not known joins in the the Government Defen- informa- They’re people that we had no request a dants for all, cooperation, for their tion on at but in present to evidence motion in order not have known about. we would Motion support Defendants right. Court: All Sentence. Mitigation of Bench Conference] [End prevent security considerations While testimony, Following agent’s detail, the going into Defendants from appellants, allocation judge heard to the Court point out Defendants would members, family and a by their statements date, they sentencing that since prosecutor that: statement brief (11) drug initiated at least eleven have given good informa- have [defendants] involving in excess trafficking cases fully cooperative they’ve been tion and grams of co- 22 kilo approximately [sic] FBI does and the The case. caine one heroine [sic] major their assistance was consider in actively engaged also Defendants have import. drug traf- with continuing negotiations infor- there be additional fickers and the Defendants The Court then sentenced the time supply the court at special mation to prison, years years in three to six Again, the motion. $150,000 of a on this The court set parole, and a fine. be these cases will details of 1991. various voluntary surrender date of June 18, Deppe at an in-camera June provided for the Court also filed a motion to con- hearing. tinue based on the fact that although cooperating he was The court (emphasis original). denied government, he had been unable to com- motion, “Denied stamping it and So plete government assignment his due to Yesil, Golan and Ordered.” personnel changes Attorney’s at the U.S. joint motion for reconsid- ment then filed a stamped Office. This motion was “Denied order. That motion eration of the court’s and So Ordered” on June stamped “Denied and was also So Or- dered.” response filed Deppe’s motion to continue on June 17,1991, April On moved requests orally reiterated its at the sen- date, reporting extend the defendants’ tencing hearing on June 1990. The citing appel- the continued need for the again denied the motion. At sentenc- cooperation. days later the lants’ Four dis- ing, prosecutor defense counsel and the stamped motion trict court “Denied alluded to defendant’s and So Ordered.” Yesil who stated, however, AUSA that he was not originally surrendered as ordered on June position to file a 5K.12 incarcerated. U.S.S.G. motion remain § depart downward from the Guidelines *5 Deppe B. Defendant Deppe yet completed because had not his cooperation government. with the The facts underlie the Similar of responded that the AUSA could file Deppe (“Deppe”). Glenn Gert Defendant any such a motion time. at The district Deppe pleaded guilty conspiracy to im- judge then Deppe, sentenced under the 10,445 port pounds marijuana. The Guidelines, imprisonment, to 188 months provided agreement part that: release, years supervised three and a $500 sentencing, govern- At the time of per month fine. The then noted that ment make will known Court and anticipated receipt he of a section 5K.1 other relevant authorities the nature and Deppe’s coopera- motion based on future cooperation, extent of defendant’s tion. any mitigating other indic- circumstances ative of the defendant’s intent to rehabili- 8, 1991, May government On filed a tate himself and to assume the funda- motion to pursuant reduce sentence to Rule duty reporting mental civic crime. 35(b). motion, government In its set portion detailing Deppe’s out of the facts The trial Deppe’s court scheduled sentenc- government. Deppe ing 20, for June request govern- filed a on for a On June filed a 35(b) ment’s Rule motion so that the court sentencing stating motion to continue fully apprised could be of the extent of his actively engaged the defendant was in as- cooperation. sisting requesting law enforcement and days complete additional 45 this assist- The district court wrote “Denied” on stamped ance. The motion was Deppe’s evidentiary “Denied motion to conduct an 12, court, hearing. and So Ordered” June 1990. On The expla- without further taking government's 2. U.S.S.G. § 5K1.1 states: into consideration the rendered; Upon government stating evaluation of the assistance motion of the (2) truthfulness, provided completeness, the defendant has substantial assist- and reli- investigation prosecution ance in the or ability any testimony pro- information or person another who has committed an of- defendant; by vided fense, may depart guide- the court from the (3) the nature and extent of the defendant’s lines. assistance; (a) appropriate The reduction shall be deter- (4) suffered, any injury any danger or or by mined may the court for reasons stated that injury family risk of to the defendant or his include, to, but are not limited considera- assistance; resulting from his following: tion of the (5) the timeliness of the defendant’s assist- (1)the significance court’s evaluation of the ance. assistance, and usefulness of the defendant’s
1127 nation, govern- hearing “Granted” on the perfunctory wrote its consideration 35(b) ment’s Rule motion and reduced of their Rule 35 sentence reduction mo- Deppe’s year sentence one from 188 tions. months) (15 years and 8 to 176 months and the defendants (14 months). years months and 8 Subse- agree also that the decision whether or not Deppe filed quently, evidentiary hearing generally is
joint motion to reconsider the court’s deci- committed to the discretion of the district
parties
sion.
that the motion
stressed
court.
Winfield,
United States v.
960 F.2d
the full
itself had not outlined
extent of 970,
(11th Cir.1992);
972
United States v.
Deppe’s cooperation
because the
Nerren,
572,
(5th Cir.1980).
613 F.2d
573
expected the court to
ment had
conduct an However, a district court’s discretion is
evidentiary
agents
at which federal
“severely” curtailed once that court ac
testified to the full
would have
extent of
cepts
plea bargain.3
United States v.
motion,
defendant’s
In this
Runck,
968,
(8th
601
Cir.1979),
F.2d
970
parties
noted that:
denied,
665,
444
cert.
U.S.
100 S.Ct.
plea agreement,
under the
the Govern-
(1980)(“a plea bargain
agreement, he was
accept
government’s proffered
263,
informa- U.S. at
Burruezo,
38;
F.2d at
v.
704
Santobello
III. CONCLUSION
York,
New
404 U.S.
92 S.Ct.
reasons,
For the
we REVERSE
above
(1971)
(“[W]hen plea
L.Ed.2d 427
parties’
court’s denial of the
the district
any significant degree
promise
rests in
on a
requests
evidentiary hearings
on the
agreement
prosecutor,
or
of the
so that it
cooperation. Accordingly,
issue of
we RE-
part
the inducement or
can be said to be
hearings
MAND for
and Rule 35 considera-
consideration,
promise
ful
such
must be
opinion.
tions consistent with this
filled”).
Indeed,
it
is a denial of due
process
he
to assure
defendant that
will
HATCHETT,
Judge, dissenting:
Circuit
process
certain
and then to re
receive a
majority’s holding
I
dissent from the
promise
pay
lip
nege
merely
on that
or
it
evidentiary
district court must
Thomas,
service. United States v.
so re-
whenever
(10th Cir.1978),
denied,
F.2d 1036
cert.
ruling,
quests. With this
U.S.
99 S.Ct.
government’s activities this case.
III. The Offenses and Sentences
I.The
Issue
appellants
These
drug
are
felons.2 As to
majority
The
the issue as “wheth-
grand
states
Yesil and
a
jury returned a
prevent
may
er a district court
five count indictment charging them and
fulfilling
obligations
ment from
its
under a
co-conspirators
two
conspiracy
pos
with
accept-
court
after that
has
distribute,
sess with intent to
and distribu
agreement
consequently
ed the
not
tion of
hydrochloride,
cocaine
in violation of
provided
opportunity
841(a)(1)
the defendants an
U.S.C.
and 846. After en
§§
guilty pleas.”
tering
withdraw
Because the
plea agreements,
into written
Yesil
poses
majority
wrong question,
guilty
it an-
and Golan
pleas
entered
to one count
wrong
nounces the
answer. The issue is of the indictment. The district court sen
simply
grant
whether a
district
must
tenced them
years imprisonment,
to six
a
evidentiary
an
government’s
year
term,
at the
special parole
three
a fine of
“Yes”;
request.
majority says,
$150,000,
The
say,
I
special
and a $50
assessment.
“No.”
Deppe, grand jury
As to
a
returned a one
count
charging
indictment
him and a co-
II.Jurisdiction
conspirator
conspiracy
import
into
My first concern
jurisdictional
is the
ba-
States,
place
the United
from a
outside
appeal.
posing
sis for
wrong
After
thereof,
10,445
approximately
pounds of
issue, the majority states that the defen- marijuana, in violation of 21 U.S.C.
§§
government appeal
dants and the
the fail-
and 18 U.S.C. 3238. Pursuant
§
ure of the district court to
an eviden-
agreement,
to a
plea
Deppe
written
entered
tiary hearing. Obviously, party may
no
guilty.
originally
sen-
appeal
more
evidentiary
the denial of an
Deppe
imprisonment
tenced
to 188 months
it
appeal
objection
than
years
supervised
followed
three
re-
overruled.
If this
jurisdic-
court does have
lease,
per
assessed
month as costs of
$500
evidentiary
tion from the denial of an
hear-
imprisonment,
special
and a
assess-
$50
ing,
question
I still
allowing
the wisdom of
ment. The
finds no error in the
every
from
denial of an eviden-
sentences. The district court was correct
tiary hearing
in a
context—es- on
rule
the merits of the
35 motions.
pecially government appeal.
long
It has
case,
been established that in a criminal
IV.
Government’s Activities
government may only appeal pursuant
It is difficult to understand what more
grounds provided
in 18 U.S.C. 3731.1
§
wanted the district court
*8
Deppe,
As to
sentenced under the
in
let
the
Sen-
do
this case—other
than
Guidelines,
tencing
appeal
possible government
no
is
control the entire
process including
because the sentence has not
“im-
been
the terms of the sen-
posed
law,”
example,
government
in
or “as a result
the
violation
tences. For
application
delay sentencing,
although
of an incorrect
of the sentenc-
wanted
ing guidelines,”
“imposed
delay
or
for an offense
the district
not
sentenc-
court would
sentencing guideline
delay
prison
for
ing,
which there is no
the district court did
the
plainly
reporting
length
and is
unreasonable.”
date for the exact
of time
U.S.C.
government
strange position
1. The
takes a
in
2. This case illustrates the frustration district
position
this case.
that the
judges
experiencing
Its
is
district court
forced to
court
are
when
agreements.
caused it to breach
If the
its
impose tough mandatory sentences on minor
government
right,
appellants
is
then these
impose
role felons and
unable to
fair sen-
are
right
guilty
should have the
pleas
to withdraw
major
tences on
role felons due to the
go
remedy
to trial. The
would not
manipulations.
ment's
necessarily
merely
appellants
be
to have the
resentenced.
evidentiary
requested
grant
clear. The decision to
an
government
that
the
—six
also noted that
to the
months. The district court
is committed
discretion
date, it would still en-
reporting
after the
the district court.
States v. Win
United
prom-
(11th Cir.1992);
motion. True to its
field,
tertain a rule 35
H31 sen- judge” district court reconsider agree if with the
tences. Even one were to failing
majority’s holding that to conduct evidentiary hearing in a breach results violation, and a rule 11 remand of
one would not conclude that the district
the ease must be to a different go judge. If this case must for re-
sentencing to a different district court every results in a
judge, then case which
sentencing must remanded to a error be judge.4 The crimi-
different district justice system States has
nal years
existed for more than 200 correcting
judges who make trial errors Nothing majority opinion in the indi-
them. why apply
cates different result must
this case. began. opin-
I end I Prior to this where
ion, judges district court had little discre- process.
tion left in the With opinion, judges pro- district court are deciding from to set
hibited even when
sentencing hearings and what kind of hear- government, through
ings to conduct. The opinion, has become more than a liti-
gant in the courts of this circuit. REAHARD; Reahard,
Richard Ann P.
Plaintiffs-Appellees,
v. COUNTY, Defendant-Appellant.
LEE
No. 91-3593. Appeals,
United States Court of
Eleventh Circuit.
Aug. course, necessarily resentencing
4. Of is not finds. *10 right remedy violation