11th Circuit Addresses Sixth Amendment Appeal

In a 75 page opinion, the 11^th Circuit vacates and remands part of a judgement ordering restitution, and affirms in part and reverses in part convictions in the case of United States v. Cavallo, Hornberger and Streinz. The decision can be found here. The case regards an 11 year mortgage fraud case in Central Florida, with 15 other individuals pleading to conspiracy, wire fraud, or making false statements to a bank.

Regarding the Sixth Amendment violation, the district court prohibited Streinz from speaking to his attorney during his three day testimony at trial, including during overnight recesses. Further, when the defendant announced that he would testify on his behalf, the government informed the court he had only just produced pertinent documents. At this point, the court recessed and ordered the defendant, his attorney, the prosecutor and a federal agent to go to his home and retrieve any other pertinent papers; this home visit resulted in a heated conflict. Prior to departing, the court instructed the defendant “not to communicate with anyone whatsoever with regard to the documents in your home.” It is relevant to note that while Streinz did not formally object to these instructions from the district court during his testimony and the recess, he did write multiple letters expressing concern. The 11^th Circuit found that this did indeed deprive him of his rights (pg. 10) based on Geders v. United States, 425 U.S. 80, 91, (1976). The 11^th notes that the government attempted to argue that Geders does not require a conclusion that Streinz’s rights were violated, but the court did not find merit in the arguments (pgs. 13 – 23). The Court reversed his conviction and remanded for a new trial.

Defendants Cavallo and/or Hornberger argued, among other things: that an FBI agent perjured himself during the Grand Jury and that the district court should granted a motion to dismiss the indictment (pg. 23); that their convictions should be reversed because a juror allegedly searched the internet for the sentence of a co-conspirator (pg. 28); insufficient evidence for conviction (pg. 48); and the length of his 120 month sentence, despite already receiving a downward variance (pg. 53). The court disagreed on every one of these, although they did vacate the restitution order (pg. 70) because the amount did not represent the actual loss to the victims, but “instead confers a windfall on them.”