USCA11 Case: 22-11733 Document: 37-1 Date Filed: 08/30/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11733
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL D. BEITER, JR.,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:11-cr-60273-WPD-2
____________________
USCA11 Case: 22-11733 Document: 37-1 Date Filed: 08/30/2023 Page: 2 of 4
2 Opinion of the Court 22-11733
Before WILSON, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Michael Beiter, Jr., a federal prisoner proceeding pro se,
appeals the district court’s order denying his second post-judgment
motion to “correct the record” in his underlying criminal case. The
government, in turn, has moved for summary affirmance, arguing
that the appeal is frivolous. Beiter opposes the motion.
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
as is more frequently the case, the appeal is frivolous.” Groendyke
Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). 1 An appeal
is frivolous when the party is not entitled to relief because there is
no basis in fact or law to support their position. See Bilal v. Driver,
251 F.3d 1346, 1349 (11th Cir. 2001) (“A claim is frivolous if it is
without arguable merit either in law or fact.”).
In 2013, a jury convicted Michael Beiter, Jr., of conspiracy to
defraud the United States and multiple counts of false and fictious
claims upon the United States, and he was sentenced to 300
months’ imprisonment. Since then, Beiter has filed numerous
post-judgment motions seeking to clarify or otherwise correct the
1 See Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit Court of Appeals issued prior
to October 1, 1981, are binding precedent in the Eleventh Circuit).
USCA11 Case: 22-11733 Document: 37-1 Date Filed: 08/30/2023 Page: 3 of 4
22-11733 Opinion of the Court 3
record. As relevant to this appeal, in May 2022, Beiter filed a
“motion to correct the record” in which he sought to have the
record in his case “corrected” to reflect that Beiter was never
represented by the Federal Public Defender’s Office (“FPD”) in his
underlying criminal case because he had “fired” FPD as counsel. 2
The district court denied the motion. Beiter now appeals the
district court’s ruling, arguing that the district court erred in
denying his request to correct the record.
Here, despite Beiter’s contentions to the contrary, the
record reflects correctly that FPD represented Beiter as his court-
appointed counsel during the underlying criminal proceedings
from December 2011 to January 2012. 3 Therefore, Beiter’s appeal
of the district court’s order denying his motion to correct the
record is frivolous and the government’s motion for summary
2 Beiter previously filed a similar motion in April 2022, which the district court
denied.
3 The record reflects that, at Beiter’s initial appearance in 2011, Beiter opposed
the appointment of counsel but also stated that he would not be hiring counsel
and that he would not be representing himself, so the magistrate judge
appointed the FPD to represent him over his objection. And throughout the
proceedings, Beiter repeatedly asserted that he “fired” FPD counsel, and the
magistrate judge explained that “[f]or purposes of this Court’s record . . .
regardless of how many times you fire him, he is appointed for these
proceedings at this time.” Thus, while it is clear that Beiter disagreed with the
court’s decision concerning counsel, from a legal standpoint, Beiter was in fact
represented by the FPD during a portion of the underlying criminal case, and
there is nothing to correct in the record. The record is legally accurate.
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4 Opinion of the Court 22-11733
affirmance is GRANTED. 4 Groendyke Transp., Inc.,
406 F.2d at
1162.
4 Beiter’s motion for this Court to hear this case as an initial matter en banc is
DENIED.
