[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 23, 2009
No. 05-13809
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00010-CR-3-001-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID W. SVETE,
RON GIRARDOT,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Florida
(April 23, 2009)
Before DUBINA and KRAVITCH, Circuit Judges, and COOGLER,* District
Judge.
PER CURIAM:
*
Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
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 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
2
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
1
The request by Svete to file supplemental briefing is DENIED.
3