USA v. Michael Beiter, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14052
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
____________________
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2 Opinion of the Court 22-14052
Before NEWSOM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
In 2013, a jury convicted Michael Beiter, Jr., of conspiracy to
defraud the United States and multiple counts of false and fictitious
claims upon the United States, and he was sentenced to 300
months’ imprisonment. Most recently in November 2022, Beiter
filed a pro se “motion for definitive ruling and correction of the
record,” in which he sought to have the record in his case
“corrected” to reflect that Beiter “fired” his court-appointed
counsel, Clark Mervis, and that Mervis did not represent him
during the criminal proceedings. The district court denied the
motion, noting that “Mervis was appointed to represent Beiter, and
he did the best job that he could with an extremely difficult client.”
The district court explained that “[a]though Beiter attempted to
fire Mervis, he would not hire another lawyer, he would not
represent himself, and he gave no reason for the [c]ourt to believe
that Mervis was under-performing or that another lawyer would
do a better job.” Accordingly, Mervis remained counsel of record.
Beiter now appeals the district court’s ruling, arguing that the
district court erred in denying his request to correct the record.
In response, the government moved for summary
affirmance of the district court’s order, 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
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22-14052 Opinion of the Court 3
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.”).
Here, despite Beiter’s contentions to the contrary, the
record reflects correctly that Mervis represented Beiter as his court-
appointed counsel throughout the underlying criminal
proceedings. 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 affirmance is GRANTED.2
Groendyke Transp., Inc., 406 F.2d at 1162.
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).
2 Beiter also requests that this case be consolidated with other appeals he has
filed in case nos. 22-11733 and 22-11978, and that this appeal be heard initially
en banc. Those motions are DENIED.
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