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Summary: Case: 18-13762 Date Filed: 07/13/2020 Page: 1 of 22 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13762 _ D.C. Docket No. 9:11-cr-80205-KAM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MITCHELL J. STEIN, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 13, 2020) Before LUCK, ED CARNES and MARCUS, Circuit Judges. MARCUS, Circuit Judge: Case: 18-13762 Date Filed: 07/13/2020 Page: 2 o
Summary: Case: 18-13762 Date Filed: 07/13/2020 Page: 1 of 22 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13762 _ D.C. Docket No. 9:11-cr-80205-KAM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MITCHELL J. STEIN, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 13, 2020) Before LUCK, ED CARNES and MARCUS, Circuit Judges. MARCUS, Circuit Judge: Case: 18-13762 Date Filed: 07/13/2020 Page: 2 of..
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Case: 18-13762 Date Filed: 07/13/2020 Page: 1 of 22
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13762
________________________
D.C. Docket No. 9:11-cr-80205-KAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MITCHELL J. STEIN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 13, 2020)
Before LUCK, ED CARNES and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
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This is the second time this case has traveled to our Court. A jury sitting in
the Southern District of Florida convicted Mitchell Stein of multiple counts of mail
fraud, securities fraud, wire fraud, and money laundering, as well as conspiracy to
commit wire and mail fraud and conspiracy to obstruct justice. In Round I, we
affirmed Stein’s convictions but remanded with specific instructions to “calculate
anew the amount of loss for purposes of” sentencing and restitution. The case is
back before us because Stein claims that the district court did not remedy the original
errors found in his sentence. After review, we conclude that the district court
addressed and entirely resolved the issues raised by the previous panel. Stein also
challenges now and for the first time a forfeiture order imposed by the district court,
and he attempts to relitigate alleged due process violations that had been rejected by
our Court the first time out. These claims fall far outside of the limited scope of our
remand; we will not review them now. Accordingly, we affirm.
I.
The facts of this case were set forth in detail in a prior published opinion, see
United States v. Stein, 846 F.3d 1135, 1140–42 (11th Cir. 2017). We recite only
those necessary to the resolution of this appeal. Mitchell Stein served as corporate
counsel for Signalife, a medical company specializing in manufacturing heart
devices.
Id. at 1139. Between 2007 and 2008, Stein engaged in fraud by concocting
fraudulent purchase orders for heart devices and reporting those sales publicly to
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investors. Id. Thus, for example, Stein drafted a press release which was issued by
Signalife in September 2007, touting some $3.3 million in sales.
Id. at 1141. But
those sales were supported by fake orders from fake companies and never occurred.
Id. Stein later reversed the orders by sending in order cancellations from these bogus
companies, and Signalife disclosed the cancellations on August 15, 2008, in its Form
10-Q for the second quarter of 2008.
Id. at 1142.
The Securities and Exchange Commission (“SEC”) launched an investigation
into Signalife in 2009. Id. Following that inquiry, the Department of Justice
(“DOJ”) conducted a criminal investigation into Stein’s activities in 2010.
Id. A
federal grand jury sitting in the Southern District of Florida indicted Stein with one
count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349;
three counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2; three counts of
wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; three counts of securities fraud,
in violation of 18 U.S.C. §§ 1348 and 2; three counts of money laundering, in
violation of 18 U.S.C. §§ 1957 and 2; and one count of conspiracy to obstruct justice,
in violation of 18 U.S.C. § 371.
Id.
After a two-week trial, Stein was convicted on all counts. The district court
sentenced Stein to 204 months’ imprisonment and two years’ supervised release. It
also imposed restitution in the amount of $13,186,025.85 and ordered Stein to forfeit
$5,378,581.61. A portion of the forfeiture order was grounded on the theory of joint
3
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and several liability for the illicit gains of Stein’s coconspirator, Martin Carter, who
bought and sold Signalife stock at Stein’s direction and transferred most (but not all)
of the proceeds back to Stein. Id. at 1142.
Stein appealed his convictions and sentence to this Court. He argued that the
government knowingly made and allowed several false statements at trial in
violation of his due process rights. Id. at 1145–50. Stein also attacked his sentence,
claiming that the district court erred in calculating the loss amount of Stein’s victims
under Sentencing Guideline § 2B1.1(b)(1), and the restitution amount under the
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A.1
Id. at 1151–
56. Stein claimed that both calculations rested on a number of erroneous
assumptions and were supported by insufficient evidence. In essence, Stein urged
that the government had failed to establish by a preponderance of the evidence that
each of Stein’s victims relied on the fraudulent information Stein provided. He also
argued that the district court failed to consider whether Signalife’s stock value had
declined at least in part because of factors independent of Stein’s fraud, i.e., the short
selling of over 22 million shares of Signalife stock and the profound, across-the-
board stock market decline in 2008.
Id. at 1153–56.
1
The first panel noted, however, that the “method for calculating actual loss, as opposed to
intended loss, under the Sentencing Guidelines is largely the same as the method for establishing
actual loss to identifiable victims under the MVRA,” so it reviewed these claims together.
Stein,
846 F.3d at 1153 (quotation omitted). We do so again here.
4
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We affirmed Stein’s convictions but vacated his sentence. Id. at 1140. We
found that the “record contains no direct, individualized evidence of reliance for
each investor,” and that “the circumstantial evidence in the record is far too limited
to support a finding that” every investor “relied on the fraudulent information Mr.
Stein disseminated.”
Id. at 1154. We also agreed that the district court did not “make
findings regarding the effects of . . . . intervening events, if any, and whether these
events were reasonably foreseeable to Mr. Stein.”
Id. at 1156.
We specifically
pointed to the district court’s failure to consider “the short selling of over 22 million
shares of Signalife stock and the across-the-board stock market decline of 2008.”
Id.
at 1155.
Accordingly, we remanded the case to the district court for the limited purpose
of considering evidence of investor reliance and intervening events that may have
caused the stock price to decline. Id. at 1156.
The scope of our remand was express,
narrow and specific: “to calculate anew the amount of loss for purposes of U.S.S.G.
§ 2B1.1(b)(1) and restitution under the MVRA.”
Id. Our mandate was clear. We
asked the district court to do no more and no less.
On remand, the government submitted expert testimony regarding both
investor reliance and the effect of intervening events. The government’s expert, Dr.
Chyhe Becker, conducted statistical analyses which provided evidence of investor
reliance. Dr. Becker also concluded that intervening events did not impact
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Signalife’s stock price. Stein produced his own expert, Dr. Edward O’Neal, who
disputed both of these findings. The district court found Dr. Becker to be credible
and adopted her methodology. Ultimately, the district court determined that 616
investor victims suffered losses in the amount of $1,029,570. It resentenced Stein
to 150 months’ imprisonment and three years’ supervised release and also ordered
him to pay $1,029,570 in restitution.
Stein also challenged on remand, and, notably, for the first time, the district
court’s $5.4 million forfeiture order. He claimed that the government failed to prove
that the amount to be forfeited was traceable to Stein’s offenses. And he argued that
the portion of the forfeiture order which was based on a theory of joint and several
liability was foreclosed by an intervening change in law, relying on Honeycutt v.
United States, 137 S. Ct. 1626, 1628 (2017). The district court rejected all of these
arguments. Stein had not challenged the forfeiture order on appeal, and the court
found no conditions which would “allow a district court to deviate from the appellate
mandate” in this case.
Finally, while his first appeal was still pending, Stein had moved in district
court for a new trial under Federal Rule of Criminal Procedure 33. In that motion,
Stein pressed the same argument he had made on appeal: that the government made
or allowed the admissibility of material misstatements in violation of his due process
rights under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405
6
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U.S. 150 (1972). See
Stein, 846 F.3d at 1145–50. Stein claimed that the government
made statements during the then-ongoing appeal which amounted to “newly
revealed evidence” of due process violations. Almost two years later -- and more
than one year after our previous panel rejected Stein’s due process claims -- Stein
supplemented his Rule 33 motion with a declaration from Thomas Tribou, a
customer listed on one of Stein’s fraudulent purchase orders. The district court
summarily denied the Rule 33 motion.
This timely appeal followed.
II.
Stein argues now that this Court erred in affirming his convictions three years
ago by rejecting the claim that the government knowingly used or relied on false
evidence in violation of the Due Process Clause, Brady, and Giglio. For the reasons
we detail below, we reject Stein’s attempt to reopen this decided question. The
mandate rule and the law of the case doctrine bar us from revisiting this claim. As
for Stein’s newly minted argument about forfeiture, this should have been raised at
Stein’s initial sentencing in district court and was not, nor was it raised on appeal the
first time around. Thus we will not revisit that matter either. As for Stein’s claims
about the resentencing itself, we are satisfied that the trial court properly addressed
our original concerns and affirm its judgment as to the amount of the loss and the
restitution order.
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As for the calculation of actual loss, Stein says that the evidence was
insufficient to establish causation. See Stein, 846 F.3d at 1152 (explaining that the
sentencing guideline at issue, U.S.S.G. § 2B1.1, “incorporates and requires both
factual or ‘but for’ causation and legal or foreseeable causation” (quoting United
States v. Evans,
744 F.3d 1192, 1196 (10th Cir. 2014))). The trial court’s
calculation, he argues, was neither sufficiently supported by evidence of reliance
(but-for causation), nor did it properly account for intervening events (legal
causation).
“The government bears the burden of proving by a preponderance of the
evidence actual loss attributable to the defendant’s conduct.” Id. Moreover, the
district court’s loss calculation “may be an estimate so long as it is based on reliable
and specific evidence rather than mere speculation.”
Id. at 1156 (quotation omitted).
More particularly, “the government must show that the investors relied on Mr.
Stein’s fraudulent information to satisfy the ‘but for’ causation requirement.”
Id. at
1153. “A district court’s determination that a person or entity was a victim for
purposes of loss calculation is an interpretation of the guidelines, so we review it de
novo.”
Id. at 1151. The government need not offer “individualized proof of reliance
for each investor”; rather, the government can “offer specific circumstantial
evidence from which the district court may reasonably conclude that all of the
investors relied on the defendant’s fraudulent information.”
Id. at 1153–54.
8
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After reviewing Dr. Becker’s testimony on remand, we are satisfied that the
government has met its burden of establishing investor reliance by a preponderance
of the evidence. Among other things, Dr. Becker testified that returns for Signalife
stock were 18% higher than would be expected (that is, an abnormal return) on
September 25, 2007, when the company issued a fraudulent press release. And,
further, there was an abnormal negative return of -9% on August 15, 2008 -- the date
on which Signalife’s 10-Q made its order cancellations public. Moreover, there was
an abnormal negative return of -12.7% following an April 2008 conference call
during which Signalife failed to provide additional information on pending orders
despite having promised to do so. Dr. Becker also explained that Signalife generated
no revenue from 2001 through 2005, and it generated less than $200,000 in revenue
in 2006. She found it likely that the fraudulent purchase orders promising millions
in new sales in 2007 would have induced investor reliance, since “investors would
have been wondering about overall market demand for Signalife’s product.”
The district court did not just take the government’s word as gospel; it
required the government to recalculate its proposed loss amount after removing from
consideration those investors who sold their stock before Signalife issued its 10-Q
in August. This recalculation cut the government’s proposed loss amount in half, to
$1.03 million. All told, and as we instructed in the earlier opinion, the district court
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relied on “specific circumstantial evidence” to reasonably conclude that the investors
in fact relied on Stein’s fraudulent information. Id.
Stein’s primary argument on this matter is that Signalife’s stock price dropped
significantly following an investor call in April 2008. He theorizes that because this
drop occurred before Signalife made the order cancellations public in its August
2008 10-Q, the bulk of investor loss was not due to his fraud. Dr. Becker’s testimony
answered the argument this way: investors were expecting updates on outstanding
orders at this April investor call, and Signalife’s failure to provide updates created
“considerable uncertainty as to whether Signalife would receive any revenue from
the false purchase orders.” Indeed, Stein’s own expert conceded that a company’s
failure to provide an anticipated update could lead to a corrective drop in stock price.
Stein also claims that the lack of market efficiency for Signalife stock
undermines a finding of investor reliance. On this record, we disagree. For one
thing, the panel’s majority opinion in Round I only required “specific circumstantial
evidence from which the district court may reasonably conclude that all of the
investors relied on the defendant’s fraudulent information.” Id. We did not require
the government to establish market efficiency. We add that Stein’s expert conducted
a statistical study in the past without establishing market efficiency. Even in the
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absence of establishing market efficiency, the district court did not err in finding
investor reliance. 2
Next, Stein argues that the district court failed to properly evaluate proximate
cause because it did not account for intervening events. A district court’s
determination of proximate cause “is part of the court’s determination of the amount
of loss involved in the offense and, thus, is reviewed only for clear error.” Id. at
1151. “We will overturn a court’s loss calculation under the clear-error standard
where we are left with a definite and firm conviction that a mistake has been
committed.”
Id. (quoting United States v. Campbell,
765 F.3d 1291, 1302 (11th
Cir. 2014)). “There is ‘no clear error in cases in which the record supports the district
court’s findings.’” United States v. Rodriguez,
751 F.3d 1244, 1255 (11th Cir. 2014)
(quoting United States v. Petrie,
302 F.3d 1280, 1290 (11th Cir. 2002)).
On this record, we can discern no clear error. The prior panel instructed the
district court to consider whether “intervening events affected Signalife’s stock price
during the fraudulent period.” Stein, 846 F.3d at 1156. First, in order to quantify
the effect of market movements during the 2008 financial downturn, Dr. Becker
conducted a statistical analysis which measured any correlation between the market
2
Stein separately argues that the district court erred because it failed to analyze reliance for each
of the 616 investors at an individualized level. But the prior panel expressly ruled that the district
court need not engage in an individualized analysis “in cases such as this one involving numerous
investors,” where identifying “individualized proof of reliance for each investor is often infeasible
or impossible.”
Stein, 846 F.3d at 1153.
11
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and Signalife stock. Dr. Becker explained that “if the market downturn caused
Signalife’s stock price declines,” she “would expect to observe that Signalife’s stock
price changes were positively correlated with changes in the overall market during
that period.” After conducting a number of tests, however, Dr. Becker found that
“Signalife’s stock price was neither sensitive to changes in the market nor sensitive
to changes in its industry during the relevant period,” and she concluded that there
was “no evidence that Signalife’s stock price decline during the relevant period was
caused by the market downturn in 2007 and 2008.” The district court accepted Dr.
Becker’s methodology and found her expert opinion to be “credible and reliable.”
Based on her findings, the trial court determined that intervening events did not
affect the actual loss figures proposed by the government. The record supports that
finding.
The prior panel also instructed the district court on remand to specifically
consider the impact of short sales during the relevant time period, Stein, 846 F.3d at
1156, and on remand, Dr. Becker presented evidence that short sales of Signalife
stock were lower than that of the market at large. Between January and August 2008,
one academic study found that, for 350 randomly selected stocks listed on the New
York Stock Exchange, short sales represented 39.2% of those stocks’ overall trading
volume. Over that same period, however, short sales represented only 26.6% of
Signalife’s overall trading volume. Dr. Becker also determined that most of the
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declines in Signalife’s stock occurred during periods of relatively low short-selling
activity. Thus, she concluded that “short selling volume did not have a statistically
significant impact on Signalife’s stock price during the relevant period.”
Stein’s arguments to the contrary are without merit. He claims that the district
court “did not address” intervening events at all, and that “the district court ignored
. . . extensive defense evidence concerning the effect of short-selling and the 2008
stock market decline on the price of Signalife stock.” The record tells a different
story. First off, the district court recognized that it had to take intervening events
into account; it said that its loss calculation was based on the “inflated value of
[Signalife’s] stock attributable to the fraudulent misrepresentations.” The district
court was engaged throughout Stein’s resentencing hearing, repeatedly inquiring
about the mechanics of short selling. The resentencing hearing also featured
extensive discussion about the financial downturn of 2008 and the use of various
methodologies to control for its effect on stock prices. After considering this
evidence, the district court reasonably credited Dr. Becker’s testimony and adopted
her methodology, again describing both as “credible,” “competent,” and “reliable.”
Stein’s argument boils down to the claim that the district court should have
credited his own expert and rejected the opinion of Dr. Becker. Our case law,
however, is unambiguous: the district court frequently must choose between dueling
experts, and if that decision is reasonably based on evidence found in the record, the
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choice is not clear error. See Knight v. Thompson, 797 F.3d 934, 942 (11th Cir.
2015) (allowing the district court to “weigh competing expert testimony” so long as
it does “not arbitrarily ignore” either expert); Bottoson v. Moore,
234 F.3d 526, 534
(11th Cir. 2000) (“When there is conflicting testimony by expert witnesses, as here,
discounting the testimony of one expert constitutes a credibility determination, a
finding of fact.”). The district court reasonably relied on evidence and analysis
provided by Dr. Becker, a qualified expert who had earlier served as the acting
division director and chief economist of the SEC’s Division of Economic and Risk
Analysis. There was no clear error in choosing to rely on Dr. Becker. Thus we
affirm the district court’s calculation of loss. 3
III.
Stein’s remaining due process and forfeiture claims fall outside the scope of
the limited remand in this case. The district court properly rejected them. We start
with hornbook law: “A trial court, upon receiving the mandate of an appellate court,
may not alter, amend, or examine the mandate, or give any further relief or review,
3
Stein makes one additional argument: his expert testified that the August 15 10-Q affected losses
stemming from the fraud because this disclosure included the fact that there was a large quarterly
loss, and that Signalife for the first time reported negative stockholder equity. Stein’s expert thus
reduced the losses attributable to fraud by two-thirds, but he admitted he had “no basis” for that
figure. The government convincingly argued that these pieces of negative news were inherently
tied to the fraud and were not properly considered intervening. Signalife was forced to back out
$5 million in fraudulent sales due to order cancellations, and it is not surprising that reversing $5
million in revenue would lead to a negative impact on the company’s balance sheet. Again, the
district court did not clearly err by rejecting Stein’s argument.
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but must enter an order in strict compliance with the mandate.” Piambino v. Bailey,
757 F.2d 1112, 1119 (11th Cir. 1985); see also United States v. Tamayo,
80 F.3d
1514, 1520 (11th Cir. 1996) (“[A] district court when acting under an appellate
court’s mandate, ‘cannot vary it, or examine it for any other purpose than execution;
or give any other or further relief; or review it, even for apparent error, upon a matter
decided on appeal; or intermeddle with it, further than to settle so much as has been
remanded.’” (quoting Litman v. Mass. Mut. Life Ins. Co.,
825 F.2d 1506, 1510–11
(11th Cir. 1987) (en banc))). The only remaining question is whether Stein can
establish any exceptions to this basic rule. He has not done so.
A.
Starting then with Stein’s due process claim, the prior panel had already heard
and squarely rejected Stein’s argument that the government knowingly relied on
false testimony. Stein, 846 F.3d at 1147–50. Stein’s request for additional review
falls outside of our limited mandate and is barred by the law of the case doctrine,
which “operates to preclude courts from revisiting issues that were decided explicitly
or by necessary implication in a prior appeal.” Schiavo ex rel. Schindler v. Schiavo,
403 F.3d 1289, 1291 (11th Cir. 2005) (per curiam). There are only three exceptions
to this doctrine: if “(1) the evidence on a subsequent trial was substantially different,
(2) controlling authority has since made a contrary decision of the law applicable to
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the issue, or (3) the previous decision was clearly erroneous and would work a
manifest injustice.” Westbrook v. Zant, 743 F.2d 764, 768–69 (11th Cir. 1984).
Stein first offers what he characterizes as new evidence of government
wrongdoing, and claims the first exception to the law of the case doctrine. But the
only new evidence he references in this appeal -- a declaration by Signalife customer
Thomas Tribou -- was submitted in a “supplement” to his original Rule 33 motion
for a new trial. That supplement was submitted nearly two years after Stein’s motion
(and five years after the verdict). A motion under Rule 33 based on new evidence
must be filed within three years of the verdict. Fed. R. Crim. P. 33(b)(1). Tribou’s
declaration was untimely. Stein has pointed us to no explanation for his tardiness,
nor can we construe this late filing to be “linked” to the original motion, as Stein
urges. Allowing new evidence to be shunted into an old Rule 33 petition at any time
simply by calling it a “supplement” would eviscerate the prescribed period for
making such filings. The district court did not err in denying Stein’s new trial motion
based on evidence found within the supplement.
But even if we were to consider the contents of this supplement, and even if
the evidence within it were newly discovered, we would conclude that this “new
evidence” is immaterial. In his declaration, Tribou avers that he paid Signalife for
goods he expected to receive. But the parties already stipulated to that fact at trial.
The declaration does not speak to the government’s theory of the case: that Stein
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fabricated details within the purchase orders at issue. Indeed, Tribou concedes in
his declaration that the order form he filled out remained “blank except for the
number of units and the cost.” The declaration does not contradict the government’s
theory that Stein supplied phony order details.
Stein also claims that the prior panel clearly erred when it rejected his due
process claim, and that this result would work a manifest injustice, qualifying him
for the third exception to the law of the case doctrine. Westbrook, 743 F.2d at 768–
69. Stein argues it was clear error to require a showing that the government
suppressed evidence or capitalized on false testimony in order to prevail on a Giglio
claim.
We disagree. For most of the statements at issue, the panel could not find
sufficient evidence that the government knowingly relied on false testimony in the
first place. Stein, 846 F.3d at 1150. For the small subset of statements that remain,
the panel determined, after citing to our binding precedent, that Stein failed to show
how the government either suppressed or capitalized on allegedly false testimony.
Id. This conclusion was not clearly erroneous.
All told, Stein has pointed us to no new evidence or law, nor has he established
that the panel’s rejection of his due process claims was clearly erroneous or
manifestly unjust. The law of the case doctrine applies. There was no basis for the
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district court to consider the issue on remand, and no grounds for us to reconsider
the matter today.
B.
Finally, Stein says that the district court’s forfeiture order is improper. He
claims that the entire forfeiture calculation was unsupported by the evidence, and
also that a subset of the order relying on the theory of joint and several liability is
invalid in light of Honeycutt v. United States, 137 S. Ct. 1626 (2017). Stein failed
to make these arguments before the district court during his original sentencing, nor
did he raise them on his initial appeal with this Court. But he argues, nevertheless,
that he has preserved these claims because the district court entered an amended
judgment on remand; thus, the court was free to reconsider all sentencing issues from
scratch.
We disagree. Stein misapprehends the basic goal of the mandate rule: to
discourage precisely this type of inefficient, piecemeal litigation. See, e.g., Litman,
825 F.2d at 1511 (explaining that the doctrine “operates to create efficiency, finality
and obedience within the judicial system”). As we have emphasized, when “the
appellate court issues a limited mandate,” the district court “is restricted in the range
of issues it may consider on remand.” United States v. Davis,
329 F.3d 1250, 1252
(11th Cir. 2003) (per curiam); see also United States v. Mesa,
247 F.3d 1165, 1170–
71 (11th Cir. 2001) (concluding that an argument regarding a downward sentencing
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adjustment fell outside the scope of remand, because the limited mandate “did not
vacate [the defendant’s] sentence in its entirety”).
The remand here was limited, and those limitations were expressed clearly.
We determined that the district court erred in only two respects, both specific to its
calculation of loss: it leaned on insufficient proof of reliance, and it failed to
determine whether intervening events caused Signalife’s stock to drop. Stein, 846
F.3d at 1140. We remanded “so that the district court can remedy these errors,” and
we provided specific “instructions to calculate anew the amount of loss for purposes
of U.S.S.G. § 2B1.1(b)(1) and restitution under the MVRA.”
Id. at 1140, 1156
(emphasis added).
Yet Stein attacks the forfeiture order, which is unrelated to recalculation of
the loss amount. Because his claim plainly falls outside the scope of our limited
remand, and because he failed to raise this issue in his first appeal, the law of the
case doctrine applies to this claim as well. See Piambino, 757 F.2d at 1120 (“The
‘mandate rule,’ as it is known, is nothing more than a specific application of the ‘law
of the case’ doctrine.”). As we have explained:
While the law-of-the-case doctrine has several arms, the only one
relevant here deals with lower court rulings that have not been
challenged on a first appeal . . . . [A] legal decision made at one stage
of the litigation, unchallenged in a subsequent appeal when the
opportunity existed, becomes the law of the case for future stages of the
same litigation, and the parties are deemed to have waived the right to
challenge that decision at a later time.
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United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997) (citation and
quotation omitted); see also
Mesa, 247 F.3d at 1171 n.6 (“Had [the defendant] raised
this issue in his first appeal, he might have been entitled to some measure of relief
on ‘plain error’ review. By failing to appeal the question at that time, he, however,
abandoned this argument. And the district court, on remand, was not required to
consider it when our mandate did not require a de novo resentencing.”).
The law of the case doctrine thus applies to Stein’s previously unraised
forfeiture argument attacking the entirety of the order, and none of the narrow
exceptions to the doctrine apply to this claim. Nothing prevented Stein from raising
this claim in district court at his original sentencing. He could have raised the claim
before our Court, too, during his first appeal, subject to plain error review. He points
to no new evidence or law that would excuse his failure to raise the issue, nor to any
clear error or manifest injustice. Since no exception to the law of the case doctrine
can be found, no reversible error is presented by the trial court’s refusal to grant
Stein’s late argument. See Mesa, 247 F.3d at 1171.
Stein’s argument attacking joint and several liability fares no better. Stein
points us to the Supreme Court’s decision in Honeycutt v. United States as an
intervening change in law that justifies setting aside that portion of the forfeiture
order. Again, we are unpersuaded. Not just any change in law qualifies as an
exception to the law of the case doctrine. Rather, we demand an “intervening change
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in the controlling law” that “dictates a different result.” Grayson v. Warden,
Comm’r, Ala. DOC, 869 F.3d 1204, 1231 (11th Cir. 2017) (quoting
Piambino, 757
F.2d at 1120). Honeycutt does not fit this bill.
Honeycutt dealt with 21 U.S.C. § 853, a forfeiture statute specific to drug
crimes. Section 853 allows for the forfeiture of drug-related proceeds which “the
person obtained, directly or indirectly.” 21 U.S.C. § 853(a)(1). The Supreme Court
found joint and several liability inappropriate under § 853 largely because of the
requirement that the defendant “obtain” the proceeds; as the Court explained,
“[n]either the dictionary definition nor the common usage of the word ‘obtain’
supports the conclusion that an individual ‘obtains’ property that was acquired by
someone else.” Honeycutt, 137 S. Ct. at 1632.
By contrast, the forfeiture statutes at issue here, 18 U.S.C. §§ 981(a)(1)(C)
and 982(a)(1), are not related to drug crimes, nor do they use the word “obtain.”
Further, unlike § 853’s focus on proceeds “the person” obtained, these statutes
reference more broadly the proceeds or property “traceable to a violation” or
“involved in [an] offense.” 18 U.S.C. §§ 981(a)(1)(C), 982(a)(1). Given these
differences, and understanding the importance that the Supreme Court placed on
language specific to § 853 in reaching its conclusion, we cannot say that Honeycutt
qualifies as an intervening change in law that dictates a result for the statutes here.
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Rather, all that Honeycutt dictates for our purposes is to undertake a close
examination of the text when confronted with a question of statutory interpretation.
We certainly agree with that premise. But those same tools of interpretation that the
Supreme Court used in Honeycutt were available to Stein long before that decision
was published. Honeycutt was not an intervening change in law in that respect; it
“was simply a matter of statutory interpretation” that “did not announce a new
constitutional right or overturn any Supreme Court precedent.” United States v.
Bane, 948 F.3d 1290, 1297 (11th Cir. 2020). Stein could have just as easily
advocated against joint and several liability in the same way Honeycutt found
persuasive: by urging “an interpretation of a statute that is consistent with its
ordinary meaning and structure.”
Id. Honeycutt’s use of interpretive techniques
specific to language in § 853 does not amount to an intervening change in controlling
law that dictates a result with respect to 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(1).
AFFIRMED.
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