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United States v. Alpert, 28 F.3d 1104 (11th Cir. 1994) (en banc)

Practice Area: Appeals

Outcome: The full Court on its own motion vacated the panel opinion, and reheard the case en banc.

Description: While under investigation for credit card and credit-related fraud, Carl Henry Alpert and his wife Helene, through their attorneys, entered into plea negotiations with the government. Before the last scheduled meeting, the Alperts disappeared leaving no forwarding address. The Alperts were indicted, Carl on 41 counts of credit card and credit-related fraud, and Helene on 5 counts. A few days after the indictment, Carl was arrested in California, where the family had moved, for fraudulently leasing an automobile, and he gave police a false name upon arrest. A subsequent search of the Alperts' California home revealed false documents indicating that the Alperts had continued to engage in criminal activity. Carl pleaded guilty to 40 counts, and Helene to 2 counts. At sentencing, the court enhanced their sentences under Federal Sentencing Guideline § 3C1.1 for obstruction of justice based on their disappearance and continued criminal activity, and departed upward as to Carl's sentence to account for the duration and extent of his fraudulent activity, and to ensure that his sentence would be double that of his wife. On appeal, a panel of the Eleventh Circuit vacated the sentences, holding that neither the Alperts' disappearance while engaged in plea negotiations nor Carl's use of a false name after being arrested were sufficient to justify a § 3C1.1 enhancement for obstruction of justice; and the upward departure of Carl's sentence was unjustified based on his greater culpability as compared to his wife's, plus the extent of his misconduct was already taken into account by the Sentencing Guidelines' enhancement for more than minimal planning. The full Court on its own motion vacated the panel opinion, and reheard the case en banc. The majority of a deeply divided Court held that the sentencing court's factual findings regarding how the Alperts' conduct hindered the investigation or prosecution of the offense were insufficient to support the obstruction of justice enhancement; and agreed with the panel that an upward departure was not warranted. Ms. Weil drafted the en banc brief, and orally argued the case before the full Court.

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