United States v. Amodeo

• Decision Date: 21 February 2019
• Docket Number: Nos. 15-12643 & 16-15867,s. 15-12643 & 16-15867
• Citation: 916 F.3d 967
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank AMODEO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

916 F.3d 967

UNITED STATES of America, Plaintiff-Appellee,

v.Frank AMODEO, Defendant-Appellant.

Nos. 15-12643 & 16-15867

United States Court of Appeals, Eleventh Circuit.

February 21, 2019

Linda Julin McNamara, U.S. Attorney's Office, Anita M. Cream, Assistant U.S. Attorney, I. Randall Gold, Patricia A. Willing, Tampa, FL, Nicole M. Andrejko, U.S. Attorney's Office, Orlando, FL, for Plaintiff-Appellee.

Elaine Joan Mittleman, Law Office of Elaine J. Mittleman, Falls Church, VA, for Defendant-Appellant.

Joe Washington, Plantation, FL, pro se.

Wifredo A. Ferrer, Holland & Knight, LLP, Miami, FL, Barry Sabin, U.S. Attorney's Office, Fort Lauderdale, FL, Emily M. Smachetti, U.S. Attorney Service-SFL, Miami, FL, for Respondent-Appellee.

Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MOORE,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal presents the question whether a criminal defendant has standing to appeal the partial vacatur of the final forfeiture order entered in his case. Frank Amodeo pleaded guilty to involvement in a criminal scheme to divert his clients’ payroll taxes. He agreed to forfeit many assets, including the ownership of two shell corporations. The district court entered a preliminary forfeiture order that divested Amodeo of those assets. After no third parties asserted an interest in the corporations, the court entered a final forfeiture order that transferred ownership of them to the government. Years later, the corporations were named as defendants in a lawsuit brought by victims of Amodeo’s scheme. The government then moved to vacate the final forfeiture order as to the corporations, and the district court granted that motion. Amodeo appeals the partial vacatur on the ground that the district court lacked the authority to enter it. But because the partial vacatur caused him no injury, Amodeo lacks standing to complain about it. We dismiss his appeal for lack of jurisdiction.

I. BACKGROUND

Frank Amodeo instigated a criminal scheme to divert his clients’ payroll taxes to his companies’ bank accounts instead of remitting that money to the Internal Revenue Service. After a grand jury returned a 27-count indictment, Amodeo reached a plea agreement with the government. He pleaded guilty to conspiracy to defraud the United States, failure to collect and remit payroll taxes, and obstruction of an agency investigation. He agreed to forfeit many assets, including approximately $180 million, multiple properties, luxury cars, a Lear jet, and the ownership of several corporations. This appeal concerns two of those corporations: AQMI Strategy Corporation and Nexia Strategy Corporation.

The district court entered a preliminary forfeiture order for the assets listed in Amodeo’s plea agreement, including AQMI and Nexia. The preliminary forfeiture order stated that it "shall be a final order of forfeiture as to the defendant, Frank L. Amodeo." The district court sentenced Amodeo to 270 months of imprisonment followed by three years of supervised release.

The government then moved for a final forfeiture order. No third parties claimed an interest in the corporations. The district court granted the motion and entered the final forfeiture order. It ordered that Amodeo’s assets, including the corporations, were "condemned and forfeited to the United States," so "clear title to the property is now vested in the United States."

Amodeo appealed the final forfeiture order, but we dismissed his appeal for lack of jurisdiction. United States v. Amodeo , No. 09-16170 (11th Cir. Mar. 26, 2010). We explained that Amodeo lacked standing to appeal the final forfeiture order because the preliminary forfeiture order "fully and finally resolved all of Frank Amodeo’s interests in the properties referenced in the ... final forfeiture order." Id. at 1. Amodeo’s lack of standing meant this Court lacked jurisdiction over his appeal. Id. Amodeo also appealed his conviction, which we affirmed. United States v. Amodeo , 387 F. App'x 953 (11th Cir. 2010).

A few years later, victims of Amodeo’s scheme filed a complaint against several corporations, including the forfeited AQMI and Nexia. See Complaint at 3, Palaxar Grp. v. Williams , No. 6:14-cv-00758-ORL-28GJK (M.D. Fla. Sept. 18, 2013), ECF No. 1. After AQMI and Nexia were served as defendants in the suit, the government moved to vacate the final forfeiture order only as to those corporations. The government explained that both corporations were shell corporations without any assets and that it had sought their forfeiture "to prevent their continued illegal use by [Amodeo] and to deprive [him] of any economic value that the corporations may have." The government informed the district court that it would not defend either corporation in the Palaxar suit and "believe[d] it ... in the best interest of the [g]overnment to divest ownership of Nexia and AQMI." The district court granted the motion and vacated the final forfeiture order as to AQMI and Nexia. The final forfeiture order "otherwise remain[ed] in effect."

Amodeo moved to reconsider the partial vacatur on the ground that the district court lacked jurisdiction to alter the final forfeiture order, but the district court denied his motion. The court confirmed that it had vacated only the final forfeiture order in part, not the preliminary forfeiture order. It explained that, "[j]ust as Amodeo lacked standing to challenge the final order of forfeiture on appeal, Amodeo also lack[ed] standing to challenge the partial vacatur of that order." Amodeo appealed the denial of his motion to reconsider the partial vacatur—the appeal before us now.

Meanwhile, Amodeo moved to intervene in the pending Palaxar suit. He contended that the partial vacatur of the final forfeiture order restored his ownership of AQMI and Nexia. The district court denied the motion, and we affirmed that denial. See Palaxar Grp. v. Williams , 714 F. App'x 926, 928–29 (11th Cir. 2017). We concluded that the partial vacatur did not return the ownership of the corporations to Amodeo because "the preliminary forfeiture order, which divested Mr. Amodeo of his ownership interest, was never disturbed." Id. at 929 & n.4. We explained that "[t]he government did not return its interest in AQMI to Mr. Amodeo; instead, the government relinquished its ownership interest after AQMI was sued." Id. at 928. And we noted that "[a] previous panel of this court recognized as much, and we have no basis or reason to reach a different conclusion." Id. at 928–29.

II. STANDARD OF REVIEW

We review de novo questions of our jurisdiction. United States v. Cartwright , 413 F.3d 1295, 1299 (11th Cir. 2005).

III. DISCUSSION

Amodeo argues that the district court lacked jurisdiction to partially vacate the final forfeiture order, but we lack jurisdiction to consider that question in this appeal. "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first , of this court, and then of the court from which the record comes."

Mansfield, C. & L.M. Ry. Co. v. Swan , 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884) (emphases added); accord Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ; Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 547, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ; Great S. Fire Proof Hotel Co. v. Jones , 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900) ; Castleberry v. Goldome Credit Corp. , 408 F.3d 773, 779 (11th Cir. 2005). So this Court must satisfy itself of its jurisdiction before we can address whether the district court had jurisdiction. See Peppers v. Cobb County , 835 F.3d 1289, 1296 (11th Cir. 2016) ("[W]e are obliged first to consider our power to entertain the claim.").

That this Court must first satisfy itself of our own jurisdiction is a rule without exception: "Without jurisdiction[,] the court cannot proceed at all in any cause." Steel Co. , 523 U.S. at 94, 118 S.Ct. 1003 (quoting Ex parte McCardle , 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868) ). "[J]urisdiction is power to declare the law," so when it does not exist, "the only function remaining to the court is that of announcing the fact and dismissing the cause." Id. To do otherwise would "violate[ ] the fundamental constitutional precept of limited federal power" and so "offend[ ] fundamental principles of separation of powers." Univ. of S. Ala. v. Am. Tobacco Co. , 168 F.3d 405, 409–10 (11th Cir. 1999) (citations and internal quotation marks omitted).

Amodeo argues that the doctrine of standing does not apply to his criminal case, but Article III of the Constitution, from which standing derives, governs our jurisdiction in every type of case. Article III vests the judiciary with jurisdiction only over "Cases" and "Controversies." U.S. Const. Art. III, § 2. To have a case or controversy, a litigant must establish that he has standing, which must exist "throughout all stages of litigation." Hollingsworth v. Perry , 570 U.S. 693, 705, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). "That means that standing must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance." Id. (quoting Arizonans for Official English v. Arizona , 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ); see also Wolff v. Cash 4 Titles , 351 F.3d 1348, 1353 (11th Cir. 2003) ("Litigants must establish their standing not only to bring claims, but also to appeal judgments."). To establish appellate standing, a litigant must "prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision." Hollingsworth , 570 U.S. at 704, 133 S.Ct. 2652.

In the context of appellate standing, the primary meaning of the injury requirement is adverseness: "Only a litigant who is aggrieved by the judgment or order may appeal." Wolff , 351 F.3d at 1354 (citation and internal quotation...