In Re: The Matter of Alan Ira Karten , 293 F. App'x 734 ( 2008 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    SEPT 17, 2008
    No. 08-10101                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 07-00048
    IN RE:
    THE MATTER OF ALAN IRA KARTEN,
    Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (September 17, 2008)
    Before BLACK, CARNES and BARKETT, Circuit Judges.
    PER CURIAM:
    Alan Ira Karten, an attorney proceeding pro se, appeals his reciprocal
    disbarment from practice in the United States District Court for the Southern
    District of Florida. After the Florida Bar filed a complaint against Karten, alleging
    that he violated Rule 4-8.4(c) of the Rules Regulating the Florida Bar, a Florida
    judge, acting as referee, heard witness testimony at a violation hearing in
    considering the complaint. The referee recommended that Karten be disbarred, and
    the Florida Supreme Court accepted the recommendation and ordered him
    disbarred. Karten filed a motion for new trial, which a successor referee
    considered on the merits without hearing witness testimony. The successor referee
    recommended denial of the motion for new trial, and the Florida Supreme Court
    accepted that recommendation and denied Karten a new hearing on the complaint.
    The district court issued an order of reciprocal disbarment based on Karten’s
    disbarment by the Florida Supreme Court.
    On appeal, Karten argues that the district court abused its discretion in
    disbarring him because the successor referee denied him due process in
    considering his motion for new trial during the state disbarment proceedings.
    Specifically, he argues that the successor referee improperly failed to consider
    evidence he submitted in relation to other motions he filed after the original referee
    conducted the violation hearing. Karten also argues that the successor referee
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    denied him due process because she ruled on the motion for new trial without
    hearing testimony, even though Karten submitted evidence regarding the
    credibility of witnesses at the violation hearing.
    “We review a district court’s disbarment order only for abuse of discretion.”
    Matter of Calvo, 
    88 F.3d 962
    , 967 (11th Cir. 1996). The disbarred attorney bears
    the burden of showing good cause why the district court should not have entered a
    reciprocal disbarment order. 
    Id.
    “[D]isbarment by federal courts does not automatically flow from
    disbarment by state courts.” Theard v. United States, 
    354 U.S. 278
    , 282, 
    77 S. Ct. 1274
    , 1276 (1957). Nonetheless, a state court disbarment should be accorded
    federal effect, unless it appears from an “intrinsic consideration” of the state record
    that: (1) the state disbarment proceeding lacked due process; (2) the proof
    supporting the disbarment by the state court was so infirm as to give a federal court
    the “clear conviction” that a reciprocal disbarment order is inappropriate; or
    (3) another grave reason convinces the federal court that the state court disbarment
    should not give rise to a federal court disbarment, under the principles of right and
    justice. Matter of Calvo, 
    88 F.3d at
    966-67 (citing Selling v. Radford, 
    243 U.S. 46
    ,
    51, 
    37 S. Ct. 377
    , 379 (1917)); see also S.D. Fla. Rules Governing Attorney
    Discipline, Rule V.E. (requiring Selling-based analysis in disbarment actions). For
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    the purposes of the first ground listed in Matter of Calvo, due process “is narrowly
    defined . . . as ‘want of notice or opportunity to be heard.’” Matter of Calvo, 
    88 F.3d at 967
     (quoting Selling, 
    243 U.S. at 51
    , 
    37 S. Ct. at 379
    ).
    “The fundamental requirement of due process is the opportunity to be heard
    at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 
    424 U.S. 319
    , 333, 
    96 S. Ct. 893
    , 902 (1976) (internal quotation omitted). “The guarantees
    of due process call for a hearing appropriate to the nature of the case.” United
    States v. Raddatz, 
    447 U.S. 667
    , 677, 
    100 S. Ct. 2406
    , 2413 (1980) (internal
    quotation omitted).
    If a judge presiding in a civil bench trial steps down before making findings
    of fact and conclusions of law, a successor judge generally cannot make credibility
    determinations and should retry the case. Emerson Elec. Co. v. General Elec. Co.,
    
    846 F.2d 1324
    , 1325-26 (11th Cir. 1988) (citing Fed. R. Civ. P. 63). However, a
    successor judge hearing a case on remand, after the original judge has stepped
    down, may make findings of fact and conclusions of law on the existing record or
    the record as supplemented, or may choose to grant a new trial, at his discretion.
    Golf City, Inc. v. Wilson Sporting Goods Co., 
    555 F.2d 426
    , 438 n.20 (5th Cir.
    1977).1 The Supreme Court has held that a district judge has broad discretion to
    1
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we adopted
    as binding precedent decisions of the former Fifth Circuit handed down prior to October 1, 1981.
    4
    accept a magistrate’s credibility findings without hearing witness testimony, in the
    criminal suppression hearing context, consistent with due process. Raddatz, 
    447 U.S. at 680-81
    , 
    100 S. Ct. at 2415
     (noting that due process concerns are reduced in
    the suppression hearing context, as compared to the criminal trial context).
    The district court did not abuse its discretion in issuing a reciprocal
    disbarment order against Karten based on its finding that he was not denied due
    process during the Florida state disbarment proceedings. We note initially that
    Karten only challenges his reciprocal disbarment based on the first ground listed in
    Matter of Calvo because he only alleges due process violations that occurred when
    the successor referee was considering his motion for new trial after the Florida
    Supreme Court disbarred him.
    First, the successor referee did not deprive Karten of an opportunity to be
    heard because she limited her analysis of the motion for new trial to the 12 claims
    he made in the motion. Notably, Karten’s motion for new trial was based solely on
    the 12 grounds addressed by the successor referee. Although the successor referee
    apparently did not discuss the numerous additional exhibits that Karten submitted
    regarding the motion for new trial, she explicitly stated that the report was based
    on her consideration of “all the pleadings and the record evidence as to the claims
    made in the” motion for new trial. In sum, the record does not indicate that the
    5
    successor referee deprived Karten of the opportunity to be heard by failing to
    consider all of the evidence he submitted in support of his motion for new trial.
    Second, the successor referee did not deprive Karten of due process by
    making a recommendation regarding his motion for new trial without hearing
    testimony, although the original violation hearing turned on questions of
    credibility. The successor referee had discretion in determining that she could
    consider the motion without hearing witness testimony, even if that involved an
    acceptance of the original referee’s credibility determinations. Given the narrow
    definition of due process in the disbarment context, Karten was not deprived of due
    process as a result of the successor referee’s consideration of his motion for new
    trial.
    Therefore, the district court did not abuse its discretion in issuing the
    reciprocal disbarment order against Karten, on the basis of his disbarment by the
    Florida Supreme Court. Accordingly, we affirm Karten’s reciprocal disbarment.
    AFFIRMED.
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