641 Fed.Appx. 953 (11th Cir. 2016), 15-12022, United States v. Menefee

Docket Nº:15-12022
Citation:641 Fed.Appx. 953
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. J. L. MENEFEE, II, a.k.a. J. L. Menefee, a.k.a. JL Menefee, a.k.a. JL Menefee, II, a.k.a. James L. Menefee, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: James Cash, Lawrence R. Sommerfeld, Cynthia Smith, Bernita Malloy, John Andrew Horn, U.S. Attorney's Office, ATLANTA, GA. For J. L. MENEFEE, II, a.k.a. J. L. Menefee, a.k.a. JL Menefee, a.k.a. JL Menefee, II, James L. Menefee, Defendant - Appell...
Judge Panel:Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
Case Date:February 03, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 953

641 Fed.Appx. 953 (11th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

J. L. MENEFEE, II, a.k.a. J. L. Menefee, a.k.a. JL Menefee, a.k.a. JL Menefee, II, a.k.a. James L. Menefee, Defendant-Appellant

No. 15-12022

United States Court of Appeals, Eleventh Circuit

February 3, 2016

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:09-cr-00499-RWS-CCH-1.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: James Cash, Lawrence R. Sommerfeld, Cynthia Smith, Bernita Malloy, John Andrew Horn, U.S. Attorney's Office, ATLANTA, GA.

For J. L. MENEFEE, II, a.k.a. J. L. Menefee, a.k.a. JL Menefee, a.k.a. JL Menefee, II, James L. Menefee, Defendant - Appellant: Colette Resnik Steel, The Steel Law Firm, PC, ATLANTA, GA.

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

OPINION

Page 954

PER CURIAM

J. L. Menefee, II stands convicted of uttering false statements in violation of 18 U.S.C. § 1001 when he made fraudulent statements in a loan application for a $1.8 million loan from the victim, Branch Bank & Trust Company (BB& T). He appeals the district court's order crediting against his $1.8 million restitution judgment a total of $1.375 million for collateral property received by the victim; crediting against the judgment $75,000 plus $1,953.74 in interest for a Certificate of Deposit (CD) seized by the victim; denying his requested credit of $200,000 for a cash injection made at the loan closing; and directing garnishee, SunTrust Bank (SunTrust), to turn over all of his property, including the contents of his companies' accounts.

On appeal, Menefee first argues that the district court erred in applying the credits to his restitution judgment. He should have been credited $1.6 million for the collateral property received by the victim and $200,000 for a cash injection he made at closing. In addition, the interest calculated on the CD was incorrect. Second, the government violated his Brady 1 rights, as it had access to two appraisals of the collateral property at sentencing but did not disclose them. Third, the district court incorrectly upheld a garnishment, despite an insufficient showing that his companies' accounts were used for personal expenses.

I. Restitution Credit

" We review the legality of a restitution order de novo and the factual findings underlying the order for clear error." United States v. Cavallo, 790 F.3d 1202, 1238 (11th Cir. 2015). The Mandatory Victims Restitution Act (MVRA) states that if the property at issue cannot be returned to the owner, then the defendant should pay the value of the property...

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