*1 require would sues, interpretation INS’s America, of STATES UNITED stay of for a showing a more Plaintiff-Appellee, Cross- reversal for a would than it deportation Appellant, effectively would merits. This of deportation automatic require meritori- people large numbers Jr., SNYDER, Peu Harry Renee W. applicant claims, every including ous Defendants-Appellants, geot, impression. first a case who Cross-Appellees. Moreover, omitted). (citation Id. at No. 00-14694. Andrew, Weng standard that observes Appeals, Court States decision duplicate essentially would Eleventh Circuit. merits, petitioner requiring Such success. certainty of show 21, 2002. full-scale brief- require would standard appellate beginning ing at has petitioner often before
process, of the administra- copy received
even in which cases In those
tive record. stay on the panel grants
motions clearly is order the INS’s that
basis law, the issue a matter
prohibited be the panel the merits had panel a motions that issue
same peti- in favor resolved
previously are at all results None of these
tioner. judicial adminis- as a matter
sensible structure of the detailed or
tration BIA for review establishes
statute
decisions.
Id. reasons, I believe the same
Much standard, wrong Weng applied
that for this suitable this matter
and that However, en banc. consideration
Court’s order in the Court’s concur
I nonetheless Bonhomme-Ar- I find
today because stay temporary to a not entitled
douin standard. the correct
even under *2 aas Vice-President employed
der was Pharma- Development Clinical small, Inc., publicly-traded ceuticals, concerned company pharmaceutical *3 Spe- drugs. synthetic development the in the de- BioCryst was involved cifically, the treatment for velopment BCX-34 lymphoma T-cell and cutaneous psoriasis potentially (CTCL), relatively rare and Peugeot was skin. cancer. form of fatal and Study Coordinator as the employed Mitchell Dr. for W. Sub-Investigator the Investigator of Sams, principal the University at the clinical studies BCX-34 and Snyder Birmingham. at of Alabama convictions and indictments Peugeot’s in a scheme participation their from stem from data misrepresent and falsify drug’s to show in order studies clinical treating Due CTCL. effectiveness had options, defendants Snyder’s stock BioCryst. interest personal Beddow, Bowen, Jr., Erben & C. Albert an- results were false BCX-34 After Jr., Bowén, J. P.A., Bowen, M. William to as much rose nounced,’ BioCryst stock Booker, Bir- White, Dunn White & Mark fell dra- per as' share. Peugeot. AL, Snyder and for mingham, was announced. the fraud matically after Jones, Dean, Shir- Douglas G. Adolph J. AL, for Unit- Birmingham, McCarty, I. ley and Conviction Trial ed States. certain first contend Defendants judge trial by the made
comments trial denied course through the jury jury distracting the by a fair trial them ap they were to legal principles from Many EDMONDSON, and guilt HILL or innocence. deciding ply Before by the defen referenced *, comments Judges. Circuit LAY instance, For clearly innocuous. are dants LAY, Judge: Circuit the medicinal as to judge’s inquiry Ph.D., his Jr., purpose Snyder, C—for Harry W. of vitamin effects Dr. staying convic- importance wife, Peugeot, appeal emphasizing Renee had jurors alternate after two imposed healthy after and the sentences tions certainly improper. not fraud, making dismissed—is of mail been guilty found com problematic Drug potentially Food Even false statements charge to judge’s following ments to commit Administration, conspiring prejudicial “so considered cannot be jury1 Sny- States. the United against offenses * soliloquy about misty-eyed Judge dramatic Lay, Circuit P. Donald Honorable fa- judge’s Ryan,’ the Circuit, 'Saving designation. Private sitting movie Eighth for experience, system 'our II World War ther’s charge judge followed his trial 1. The defendants, "a with, jury described as to amount to the denial a fair trial.” Out of the presence of the jury, the trial Ramos, United States v. judge explained F.2d it was unnecessary to give (11th Cir.1991). an additional The trial curative judge’s instruction com- because the issue—that an indictment clearly ments do not warrant evi reversal. guilt
dence of been covered “no less —had than four Defendants also argue for times” previously. rever Further more, there is no jury sal based evidence upon question prosecu misun derstood the instructions, earlier tor nor is concerning Snyder’s indictment. To there a probability reasonable that “but prevail on prosecutorial a claim of miscon remarks, the offending the defendant duct, a defendant must only not show im would not have been convicted.” United *4 proper by prosecutor, comments the but Calderon, States v. 1314, 127 F.3d 1335 also show those prejudicially comments af (11th Cir.1997) (quoting United States v. fected the rights of the defen Rodgers, 497, (11th 981 F.2d 499 Cir. dant. Castro, United States v. 89 F.3d 1993)). We fail any to see prejudice re (11th 1443, Cir.1996). 1450 The district sulting from the alleged improper com court’s denial of defendants’ motion for ment and hold the trial court’s denial of mistrial is reviewed for abuse of discretion. defendants’ for a motion mistrial was not Perez, v. States 1407, 30 F.3d 1410 an abuse of discretion.2 (11th Cir.1994). The comment complained of came on redirect examination by the Sentencing Guidelines prosecutor after the defense attorney Initially, claim defendants the asked a witness whether misconduct would trial court erred in awarding a two-level nullify the agreement severance as it relat enhancement for knowingly endangering Snyder’s ed to stock options. The prose the clinical-trial volunteers.3 Defendants cutor then asked whether an indictment argue the trial court failed to make explic would have been considered form of mis it findings respecting the enhancement conduct, precluding Snyder’s entitlement government and the failed prove to to the options. The trial judge sus behavior created a risk of bodily serious tained defense objection counsel’s and in injury. See U.S. Sentencing Guidelines structed jury ignore the to question. the 2Fl.l(b)(6)(A) (1998).4 § The justice,’ special given the robe by him 825, Nealy, United States v. 232 F.3d 829 n. 3 Judge Seybourn Lynne.” (11th Cir.2000), Apprendi as well as the 21, decision itself. 530 See U.S. at 496 n. 120 2. argue also prosecution Defendants S.Ct. 2348. prove failed Peugeot to guilty beyond a rea sonable doubt. After considering all the evi 4.This subsection has since been deleted from case, dence in the including evi the Guidelines § and consolidated into 2B1.1. put defendants, dence see United Hutchison, See Thomas W. Highlights of the Brown, States v. (11th 53 F.3d 314 n. 3 Amendments, 2001 Sentencing Federal 1995), Cir. we hold "a reasonable fact finder Manual, (West Guidelines ed.); XXV could that conclude the evidence established Sentencing U.S. Guidelines Manual guilt defendant's beyond a reasonable 2Bl.l(b) (2001). Guidelines, however, The Quinn, doubt.” United States v. instruct the sentencing court to "use the (11th 1997). Cir. Guidelines Manual in effect on the date that, 3. argue also Defendants as a result of defendant is sentenced.” Sentencing Supreme Court's Apprendi decision in Thus, Guidelines Manual 1B1.11. all textu- Jersey, New 530 U.S. 120 S.Ct. al references to the Guidelines bewill (2000), L.Ed.2d 435 edition, the U.S. Sentencing which was in at effect the time Guidelines are argu- unconstitutional. That the defendants’ August 30- ment is foreclosed this ruling' court’s 2000. at 152- Sentencing Hearing Guidelines, however, not'require Transcript do found, sponte, bodily The court then sua actually suffer serious victim Rather, question whether of the victims’ loss would injury. better calculation the victim such placed potential defendant the intended or be use fatal potentially rare Using risk. CTCL to the defendants. this attributable is essential form of cancer. Treatment method, the court concluded the amount of later, slowing progress the disease’s attributable to defendants was be- test- deadly, stages. more Volunteers Thus, $200,000 $350,000. tween at issue here treatments ing the CTCL pur- eight-level an increase court awarded treatments. required forego other suant testified volunteered patients Two 2Fl.l(b)(l)(I). argue Defendants second, upon based study six-month calculating trial court erred in the amount first, six-week results of the falsified government their gain. concedes of seri- study. meets definition CTCL erred, but error contends the injury, conduct bodily and defendants’ ous than methodology choice of rather or reck- qualifies creating conscious In its cross-appeal, the calculation. Thus, injury. we hold risk of such less argues government the court should have *5 enhancement two-level application of. enhanced defendants’ sentences based not was erroneous. upon the actual loss incurred the BioC- concerns the presented The' final issue ryst stockholders. loss measure of the victims’ appropriate application We review 2Fl.l(b)(l). § Sentencing
under
Guideline
interpretation
Sentencing
of the
Guidelines
government
ob-
sentencing,
Prior to
novo,
findings
we
fact for
de
review
calculation
tained an estimated victim loss
Harness,
v.
clear error. United States
Dr.
accounting
prepared by
report
from an
(11th Cir.1999).
1232, 1234
When
F.3d
CPA, Ph.D.,
Barefield,
Russell M.
monetary
value of the vic
calculating
Attorney’s
Office.
direction of
Sentencing
tims’
under
loss
calculations were based on
Barefield’s
2Fl.l(b)(l),
§
of defendants’
substitution
amount
stockholders
method because
preferred
have
due to defendants’
deemed to
lost
ordinarily
it
underestimates
loss. U.S.
fraud. Barefield concluded
amount
§
Sentencing
Manual
2F1.1
Guidelines
approximately
loss was
the victims’
Orton,
9;n.
cmt.
United States
Sentencing
to the
million.
Pursuant
(11th Cir.1996).
precise
Where
Guidelines,
enhancing
require
this would
ascertainable, it
prefera
not
is
figures are
(for
involving
of six
crimes
the base level
loss
deter
to calculate the victims’
ble
deceit) by sixteen levels. U.S.
fraud and
of vic
mining “the
number
approximate
Sentencing
Guidelines
average
tims and an estimate
court,
2Fl.l(b)(l)(Q).
The trial
howev-
Sentencing Guide
victimU.S.
each
er,
of the vic-
a reasonable estimate
found
2F1.1 cmt. n.
lines Manual
not feasible:
tims’ loss was
case, the
court
present
In the
trial
in-
To ascertain'whom the individual
calculating
it
the loss to
found
erred when
financial loss-
vestors were that suffered
“All
is re
not feasible.
victims was
exhaustive;
highly
indeed
es would be
‘make a reasonable
that the court
quired is
significant
It
improbable.
require
loss, given the available
estimate
resources to
of time and
expenditures
Orton,
F.3d at 335
large
determine the
amount
detailed
information.’”
Manu
(quoting U.S.
Guidelines
is
such information
information
no
9).
cor-
The court was
2F1.1 cmt. n.
al
this Court.
rect, though,
resisting
after,
in
Dr. Barefield’s
subtracting the
price
loss—
ultimate conclusions.
presenting
While
fraud from the average stock price over
thorough analysis, Dr. Barefield uses the
the life of the
may be appropriate
fraud —
of outstanding
number
shares
in
proxy
as a
many cases involving
fraud,
securities
it
for the number of victims.
certainly
This
overesti-
not
only
method available
mates the
because,
actual loss
to the
unlike the
court. Keeping in mind the need to
circumstances
in
achieve only
United States
a “reasonable estimate” of the
v. Hedges,
(11th
F.3d
1314 n. 6
victims,
the court may need
Cir.1999), the stock here
employ
was
totally
not
different,
slightly
but nonethe-
worthless after the conspiracy
less proper,
was discov-
methodology.
instance,
For
it
Thus,
ered.
not every
may
shareholder suf-
be most effective to focus
fered
loss. We
period
understand the trial
between
press
attempting to follow our decision release announcing BCX-34 was “effec-
Orton,
where this court held
tive” in
the “loss to
treating CTCL and the
im-
days
victim”
losing
approach is not required
mediately
following the announcement of
Orton,
every case.
stockholders price because the of BioCryst HILL, Circuit Judge, concurring: stock higher after disclosure of the fraud than its average price during life I concur in panel opinion and add of the fraud. this While method valuing of one further thought. The type of crime 5. Since we do not "gain hold to defen and June 1995. After the June dant” method is appropriate announcement, calculation dropped stock as much as case, of loss present in the we have share, no occa $6.00 averaging $8.13 a share the sion to question visit the logical of whether a days three following the announcement and relationship between a victim’s loss and de $8.67 through a share Assuming, week. gain fendant's required. e.g., See data, based daily trading 500,000 between Yeaman, States v. (3d 775,000 Cir. and innocent average at an shares 1999) (requiring "logical such a relationship” ($9.63-$8.13 = $1.50 $1.50), loss to permitting gain defendant's to be used $750,000 victims be between and as a surrogate victim). for loss to the $1,162,500. Although a conservative esti- mate, represents this an additional two-level 6. release, After the May press BioC- increase in defendants' pursuant sentences to ryst jumped from $6.25 around $8.25 to U.S. Sentencing 2F1.1(b)(2), and a share. peaked The stock at approximately underscores the level to gain which the to $13.75 a and share averaged $9.63 a share in approach defendants’ underestimates the vic- exceptionally heavy trading May between tims' loss. a rela- provide here tends committed America, STATES UNITED expect- certain amount tively small Plaintiff-Appellee, larger a far defendants ed .to investors to innocent certain loss less perpe- Here the market.
throughout COOK, Defendant-Appellant. Sandra them- something of for value trators seek No. 01-15881 disregard for reckless selves Non-Argument Calendar. of their The extent victims. faceless Appeals, United States Court exceed usually greatly wrongdoing will Eleventh Circuit. their ne- to derive from they hoped what conduct. farious court, looking at the defen-
The district gain, concluded expected
dants’ of loss the amount
sentencing purposes, be- the defendants was
attributable $200,000 $350,000. govern- The
tween im- that the loss expert concludes
ment’s million! investors was upon
pact figures in the difference two great the callousness and defines
describes who, rela- in order obtain
defendants little, disregard acted utter
tively inflict- consequence
vast financial appropriate many. It
ed on so consequences limit
therefore thereby vic- gain, ignoring
to defendants’ Sentencing Guidelines loss. See U.S.
tims’ 2F1.1, cmt. n. 9. *7 course, must not the estimated
Of or guesswork specula- upon pure
be based however, good is a basis If there
tion. estimate,
a reasonable overlook fine-tuned tend to should
court dollar and demanding precise
objections opinion loss. Id. The
cent calculations of by Judge Lay provides for us
prepared em- direction district
adequate consequential it to calculate
powering certainty. reasonable to victims with