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United States v. Peters

United States Court of Appeals, Eleventh Circuit

April 23, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DALE PETERS, Defendant - Appellant

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:11-cr-60273-WPD-4.

For United States of America, Plaintiff - Appellee: Phillip Drew DiRosa, Bertha R. Mitrani, U.S. Attorney's Office, Fort Lauderdale, FL; Kathleen Mary Salyer, Wifredo A. Ferrer, Jeanne Marie Mullenhoff, Carlos Javier Raurell, Vivian Rosado, U.S. Attorney's Office, Miami, FL; Jonathan Marx, U.S. Department of Justice, Washington, DC; Jed M. Silversmith, U.S. Department of Justice, Tax Division, Washington, DC.

For Dale Peters, Defendant - Appellant: Michael G. Smith, The Law Offices of Michael G. Smith, Fort Lauderdale, FL.

Before MARTIN and FAY, Circuit Judges, and GOLDBERG,[*] Judge.

OPINION

Page 1362

PER CURIAM:

Dale Peters appeals the district judge's final order denying his request for transfer of Writ of Execution proceedings to California and a hearing by granting the government's Application for an Amended Writ of Execution, resulting from a restitution judgment entered against Peters. We vacate and remand with instructions.

I. BACKGROUND

Peters was convicted of one count of conspiring to defraud the United States and thirty-one counts of filing false and fictitious claims on the United States in an extensive tax-fraud conspiracy. On February 4, 2013, the district judge entered final judgment against Peters, which included 144 months of imprisonment and restitution of $5,362,039.69. We affirmed his conviction and sentence. United States v. Peters, No. 13-10717, 607 F.App'x 922, (11th Cir. Apr. 13, 2015).

On June 6, 2013, the government filed an Application for Writ of Execution to levy on real property Peters owned: a home, located at 21065 Christopher Circle, Sonora, California 95370. His last known address was stated to be an apartment, located at 221 South Fremont Street, Apt. 306, San Mateo, California 94401.[1] A deputy clerk entered a Writ of Execution on Peters's real property. On June 7, 2013, the government filed an Amended Application for Writ of Execution and listed Peters's apartment in San Mateo, California, as his last known address but failed to state the property to be seized and levied upon and its location. Despite this defect, a deputy clerk entered an Amended Writ of Execution against the property listed in the first Application for Writ of Execution.

On July 1, 2013, Peters filed a Response to the Amended Application and Amended Writ of Execution. He demanded a hearing and transfer of proceedings to the district, where he resides. Peters contended (1) the property was exempt from levy, and (2) the restitution order was not final, because his criminal appeal was pending. This Response was filed by Peters's court-appointed counsel for trial and direct appeal in his criminal case, Michael G. Smith. In the Response, Smith clarified he did not represent Peters in the Writ of Execution proceeding; he was filing the Response to assist Peters in notifying the government of three facts: (1) Peters was incarcerated at the United States Prison Camp at Atwater, California; further correspondence with him should be sent to him at his address there[2]; (2)

Page 1363

Peters requested the Writ of Execution proceeding be transferred to the district court with jurisdiction for Atwater, California; and (3) Peters requested a hearing on the Amended Writ of Execution.

On July 26, 2013, the district judge concluded Peters's real property was not exempt from levy, because his restitution order had not been stayed. He found transfer of the Writ of Execution proceedings was not appropriate and granted the government's Amended ...


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