UNITED STATES of America, Plaintiff-Appellee, v. Thomas F. SPELLISSY, Strategic Defense International, Inc., Defendants-Appellants.
No. 11-10107
United States Court of Appeals, Eleventh Circuit.
Aug. 16, 2011.
Non-Argument Calendar.
We review “de novo the denial of a motion for acquittal and the sufficiency of the evidence to sustain a conviction.” United States v. Tampas, 493 F.3d 1291, 1297 (11th Cir.2007). “In reviewing evidentiary sufficiency, we must determine whether the evidence, construed in the light most favorable to the government, would permit the trier of fact to find the defendant guilty beyond a reasonable doubt.” United States v. Farley, 607 F.3d 1294, 1333 (11th Cir.) (quotation omitted), cert. denied, — U.S. —, 131 S.Ct. 369, 178 L.Ed.2d 238 (2010). “We will not reverse unless no reasonable trier of fact could find guilt beyond a reаsonable doubt.” Id. “It is not our function to make credibility choices or to pass upon the weight of the evidence. Instead, we must sustain the verdict where there is a reasonable basis in the record for it.” Id. (quotations and citation omitted). A district court‘s findings of fact are reviewed for clear error. United States v. Jones, 601 F.3d 1247, 1266 (11th Cir.2010).
In determining whether a common-law marriage existed, the SSA looks to state law, see
Upon review of the record and consideration of the parties’ briefs, we find there was sufficient evidence to support each of the counts of conviction for social security fraud and the making of false statements in this case. The district court did not clearly err in finding that a common-law marriage existed, and that Rainwaters knew that such a marriage existed, based upon, among other things, Rainwaters‘s own testimony during her divorce proceedings. There was also sufficient evidence that she knowingly concealed the marriage from the SSA. Therefore, we affirm the district court.
AFFIRMED.
Matthew P. Farmer, Farmer & Fitzgerald, P.A., Tampa, FL, for Defendants-Appellants.
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Thomas Spellissy, a felon no longer in custody, and Strategic Defense International (“SDI“), a corporation founded by Spellissy, appeal thе district court‘s order denying their petition for a writ of error coram nobis,
We review a district court‘s denial of a petition for a writ of error coram nobis for abuse of discretion, “keeping in mind that an error of law is an abuse of discretion per se.” United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002) (citation and quotation omitted). The abuse of discretion standard “recognizes there is a range of choices within which we will not reverse
The All Writs Act,
The Supreme Court held, for the first time in Skilling, that the scope of activity proscribed by “honest-services fraud,”
In Skilling, the government did not, either in the indictment or evidence presented, allege that the defendant engaged in bribery. Id. Because the indictment alleged multiple objects of the conspiracy, and the “honest-services” object did not rest on a bribery or kickback scheme, Skilling‘s conviction was flawed. Id.
In United States v. Siegelman, 640 F.3d 1159, 1173 (11th Cir.2011), we held that no Skilling error existed when a district court failed to instruct a jury that to convict a defendant of honest-services fraud, a quid pro quo arrangement of bribery had to be рroven. We also held that any error with regard to a failure to so instruct the jury, based on Skilling‘s narrowing of honest-services fraud liability, was harmless because the indictment also charged bribery, under
Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a vеrdict that may rest on a legally invalid theory. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
The government has the opportunity to demonstrate that a Yates error was harmless. Skilling, 130 S.Ct. at 2934. In the habeas context, the government can demonstrate that a Yates error was hаrmless if it did not have “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). On direct appeal, however, to show that a Yates error was harmless, the government must demonstrate that it was “harmless beyond a reasonable doubt.” Id. at 622-23, 113 S.Ct. 1710; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court has stated that, for purposes of the government‘s opportunity to demonstrate harmless error, in a Yates error context, the easier-to-meet “substantial injurious effect” standard “is better tailored to the nature and purpose of collateral review” than the “beyond a reasonable doubt standard” employed on direct appeal. Brecht, 507 U.S. at 623, 113 S.Ct. 1710; see Peter, 310 F.3d at 712 (characterizing coram nobis as a form of collateral relief).1
Here, Spellissy and SDI failed to demonstrate any legal error, much less a fundamental error rendering the proceedings before the district court invalid, for several reasons. First, their convictions were not based on the same “conflict of interest” or “self-dealing” theories of liability foreclosed by Skilling. Specifically, with regard to the conspiracy charge, the jury was instructed that the conspiracy alleged two objects, bribery and wire fraud; only one had to be unanimously agreed upon by the jury to convict; and the conspiracy deprived the government of honest services if it involved a scheme to cheat the public, such as by accepting a bribe. Therefore, the instructions were not predicated on the theories of liability foreclosed by Skilling.
Second, even if a constitutional, or Yates-style error occurred undеr Skilling, it was harmless. As the record shows, the charged activity, the arguments made in closing, the instructions to the jury, and the post-verdict arguments, all point to the fact that the proscribed activity, for which Spellissy and SDI were chargеd, put on trial, and convicted, involved a scheme by Spellissy and SDI to pay Burke for prefer-
Therefore, we need not decide whether an error of this variety presents the type of fundamental error for which coram nobis relief is appropriate, because, assuming arguendo that it is, the petitioners’ claims fail regardless. Consequently, the district court did not abuse its discretion and we affirm.
AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Emmanuel MORGAN, Defendant-Appellant.
No. 11-10529
United States Court of Appeals, Eleventh Circuit.
Aug. 17, 2011.
Non-Argument Calendar.
Anne R. Schultz, Wifredо A. Ferrer, Kathleen M. Salyer, U.S. Attorney‘s Office, Miami, FL, Robert H. Waters, Jr., U.S. Attorney‘s Office, West Palm Beach, FL, for Plaintiff-Appellee.
Lori E. Barrist, Federal Public Defender‘s Office, West Palm Beach, FL, Kathleen M. Williams, Federal Public Defender, Federal Public Defender‘s Office, Miami, FL, Robin J. Farnsworth, Federal Public Defender‘s Office, Fort Lauderdale, FL, for Defendant-Appellant.