United States v. Svete , 556 F.3d 1157 ( 2009 )

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565 F.3d 1363 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
David W. SVETE, Ron Girardot, Defendants-Appellants.
No. 05-13809.
United States Court of Appeals, Eleventh Circuit.
April 23, 2009.
Peter Goldberger, Ardmore, PA, Michael S. Pasano, Carlton Fields, PA, Miami, FL, E. Brian Lang (Court-Appointed), E. Brian Lang & Associates, Pensacola, FL, for Defendants-Appellants.

Michael R. Dreeben, Office of Sol. Gen., Michael A. Rotker and Nina Swift Goodman, U.S. Dept. of Justice, Crim. Div., App. Section, Washington, DC, Benjamin W. Beard, U.S. Atty., Robert G. Davies, Asst. U.S. Atty., Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Before DUBINA and KRAVITCH, Circuit Judges, and COOGLER,^[*] District Judge.

PER CURIAM:

Upon the majority vote of the judges in this court in active service, on July 1, 2008, this court vacated this panel's prior opinion and granted rehearing en banc. See 532 F.3d 1133 (11th Cir.2008) (en banc); 521 F.3d 1302 (11th Cir.2008), vacated and reh'g en banc granted, 532 F.3d 1133. En banc, this court decided the question of whether the crime of mail fraud, which prohibits "any scheme or artifice to defraud" by use of the mail, 19 U.S.C. § 1341, requires proof that the scheme be capable of deceiving a reasonably prudent person or whether schemes aimed at the gullible or improvident also are prohibited, 556 F.3d 1157, 1159 (11th Cir.2009) (en banc). This court overruled its prior holding in United States v. Brown, 79 F.3d 1550 (11th Cir.1996), that the offense of mail fraud requires proof of a scheme calculated to deceive a person of ordinary prudence. 556 F.3d at 1166. Because prior to the court's rehearing en banc, this panel was bound by Brown, the panel reversed Svete and Girardot's convictions for *1364 mail fraud, where the district court had used a pattern jury instruction that did not contain the "person of ordinary prudence" standard articulated in Brown. Id. The court en banc affirmed the decision of the district court not to give the jury instruction about mail fraud requested by Svete and Girardot, which incorporated the standard from Brown, and remanded to the panel for further consideration of any remaining issues. Id. at 1170. Because the en banc panel considered only the narrow mail fraud issue, we hereby reinstate the original panel's determinations as to all other issues, including sufficiency of the evidence for all convictions of both Svete and Girardot; the district court's proper denial of the Motion for New Trial; and the absence of error in the district court's increase of Svete's offense level. In light of our en banc opinion in Svete, we now affirm the defendants' convictions on Counts Three through Seven, and we reinstate our affirmance of the defendants' convictions on Counts One, Two, Eight, Nine, and Ten. We also affirm Svete's sentences.

AFFIRMED.^[1]

NOTES

[*] Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.

[1] The request by Svete to file supplemental briefing is DENIED.