Big ups to Richard Klugh

Petitions for Panel Rehearing are never granted in the 11th Circuit.  I mean, unless you are the government.  Then, every now and then, they are.  But for the defense, winning a petition for panel rehearing is really really rare; almost impossible. You literally have a better chance of being struck by lightning (1 in 12,000 if you live to 80) than getting your panel rehearing petition granted if you are a defendant. 

But Richard Klugh just put lightning in a bottle in the B-Girls case. Winning a new trial on all the counts but one was a feat in itself (the post on the original entertaining opinion is here).  But then Richard moved for rehearing on the final count.  And won!

Here's the panel:

In Count 21, the government indicted Pavlenko for an email he sent to AMEX on
April 21, 2010.  [DE 953 at 15].  To sustain a wire-fraud conviction, that email must have furthered a fraud scheme, i.e., tricked AMEX into parting with money it would not otherwise have let go.  See Op. at 7–14.  Here, the scheme allegedly worked like this: a B-girl lured a man into Pavlenko’s bar, where the man proceeded to use his AMEX card.  Looking back on the encounter from the clearer light of day, the customer decided he had been defrauded and contested the charge with AMEX.  On April 19, 2010, however, AMEX determined that the charge was not fraudulent and sent its customer a letter saying so.  See [DE Doc. 1142 at 67, 85, 88 (citing Defense Exh. SP 50)].  On April 21, for whatever reason, Pavlenko sent AMEX an email covering up his relation with the B-girl.  But by then, he had nothing left to gain:  AMEX had already upheld the charge.  In doing so, AMEX did not—and, of course, could not—rely on the April 21 email.  [Id. at 88].  And since AMEX had already approved the charge, no reasonable juror could have concluded that Pavlenko defrauded AMEX of that money through the April 21 email, which was the sole basis for Count 21.