Meantime, closer to home, I checked the 11th Circuit for any new criminal opinions and we have just one published opinion from that time. We did get an order granting en banc oral argument in U.S. v. Stein. That was the case that Judge Jordan concurred (with Judge Pryor) and asked for en banc argument:
We are bound by our decision in Mays v. United States, 763 F.2d 1295, 1297 (11th Cir. 1985), a summary judgment case holding that self-serving statements in a taxpayer’s affidavit, without more, are insufficient to genuinely dispute the presumption that the government’s tax assessment is correct. I therefore reluctantly agree that we must affirm the district court’s grant of summary judgment.
I write separately, however, because the cases upon which Mays relies arise in the post-trial context, where the standard of review is much more deferential than at the summary judgment stage. The principle articulated in Mays has no place in a summary judgment posture. And I believe that the single precedent supporting Mays’ analytical leap, Heyman v. United States, 497 F.2d 121 (5th Cir. 1974), was itself wrongly decided.