Sholam Weiss v. Stan Yates

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 20, 2010
No. 09-13777 JOHN LEY
________________________ CLERK

D. C. Docket No. 02-00204-CV-OC-10-GRJ

SHOLAM WEISS,

Petitioner-Appellant,

versus

STAN YATES,
Warden, FCC Coleman,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(April 20, 2010)

Before BIRCH and BARKETT, Circuit Judges, and BUCKLEW,* District Judge.

*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
PER CURIAM:

In 1999, Sholam Weiss was convicted of racketeering, money laundering,

fraud and other offenses arising out of the failure of the National Heritage Life

Insurance Company. Before the jury concluded its deliberations, Weiss fled the

country. He was found guilty of the 78 counts charged, and was sentenced with

only his lawyer present, in 2000, to 845 years in prison.1 In Weiss’s absence, his

counsel filed an appeal. However, under the fugitive disentitlement doctrine,

which permits courts to dismiss a fugitive’s appeal and refuse to reinstate it after

post-sentencing recapture, Ortega-Rodriguez v. United States, 507 U.S. 234, 239-

42 (1993), Weiss’s appeal was dismissed. Eventually Weiss was arrested in

Austria, and extensive and lengthy proceedings ensued pertaining to the request by

the United States to extradite Weiss.2 Ultimately, Weiss was extradited with the

condition that his sentence for Count 93 would not be enforced.

Upon his return to the United States, Weiss filed a Petition pursuant to 28

U.S.C. § 2241, which is the subject of this appeal. In that Petition, Weiss argues

1
At the time of sentencing, the Guidelines were mandatory, and the sentences for each
count were imposed according to the mandatory guidelines. Under the terms of the district court
order at issue in this case, the sentence has been reduced to 835 years imprisonment.
2
These proceedings included the exchange of many communications between the United
States and Austria, various actions by the Executive branch of the Austrian government, lawsuits
filed by Weiss in various Austrian courts and in the European Court of Human Rights, some of
which were later dismissed by Weiss.

2
that the United States deliberately misled Austrian authorities to believe that, in

addition to vacating the sentence on Count 93, Weiss would be re-sentenced and

permitted a full appeal of his criminal conviction and new sentence. Weiss argues

that, by not giving him a full re-sentencing and appeal, the United States deceived

Austria into extraditing him and violated the terms of the extradition. This

deception, Weiss argues, violates the “rule of specialty,” which limits a requesting

state’s prosecution or punishment of the extradited person to the specific terms of

the extradition. United States v. Rauscher, 119 U.S. 407 (1886); United States v.

Puentes, 50 F.3d 1567 (11th Cir. 1995); Gallo-Chamorro v. United States, 233

F.3d 1298 (11th Cir. 2000).

The district court held that the rule of specialty required vacating Count 93

and that the resulting re-entry of judgment would permit Weiss to appeal his new

sentence and original conviction. United States v. Phillips, 225 F.3d 1198 (11th

Cir. 2000) (establishing procedure for vacating judgment and reimposing sentence

in a 28 U.S.C. § 2255 proceeding to provide defendant with right to an out-of-time

appeal). Specifically, the district court found that the communications by the

United States required only the elimination of Count 93 and a full appeal of his

conviction and the new sentence without Count 93. This, the district court found,

3
would fulfill the obligations of the United States under the rule of specialty.3

The government did not cross-appeal the district court order and, at oral argument,

represented to us that it does not and will not oppose granting Weiss a full appeal

of his conviction and the recalculated sentence without Count 93. Assuming the

communications constitute conditions under the rule of specialty, the government

argues that the district court did not err in finding that the communications do not

require a full re-sentencing on all counts but, rather, require only the elimination of

the sentence for Count 93.4

Having reviewed the communications at issue, we find no clear error in the

district court’s determination that the representations made by the United States to

Austria called only for the elimination of the sentence for Count 93, the

recalculation of his sentence without that count, and the resulting opportunity for a

full appeal of his conviction and sentence. We note that the appeal of Weiss’s

conviction and re-sentencing has been docketed in this court and stayed pending

3
Weiss argues that the district court did not have the authority to vacate his prior
sentence and judgment, re-sentence him, and enter that sentence as the new judgment because
such a remedy is available only under § 2255. Therefore, Weiss reasons, the only remedy
available is his release from custody. At one juncture, the district court did consider construing
this petition under § 2255 rather than § 2241. Whether construed under § 2255 or § 2241, the
district court had jurisdiction to issue the relief it did given the unique facts of this case. Phillips,
225 F.3d 1198.
4
The government also argues that its letters do not constitute a condition under the rule
of specialty. For the reasons outlined above, we need not address this contention.

4
the resolution of this case. Having resolved the district court’s authority to provide

for re-sentencing and a full appeal of his conviction and sentence without Count

93, Case No. 09-13778 can now proceed.

AFFIRMED.