USA v. Damian Mayol

Filing

Opinion issued by court as to Appellant Damian Mayol. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11617

Date Filed: 10/16/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11617
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20383-UU-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIAN MAYOL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 16, 2017)

Before JULIE CARNES, JILL PRYOR, and EDMONDSON, Circuit Judges.

Case: 16-11617

Date Filed: 10/16/2017

Page: 2 of 3

PER CURIAM:

Damian Mayol, proceeding pro se, * appeals his conviction for conspiracy to
pay healthcare kickbacks, in violation of 18 U.S.C. § 371, and 42 U.S.C. § 1320a7b(b)(2)(A). No reversible error has been shown; we affirm.
Mayol says he provided his trial lawyer with business records from his
company, Transportation Services Providers (“TSP”). Mayol intended to use the
TSP business records, or portions thereof, in his defense at trial. Mayol’s lawyer,
however, permitted the government to view the business records -- without
Mayol’s consent. The government then put into evidence a composite of
documents from the TSP business records.
On appeal, Mayol contends that his lawyer violated attorney-client privilege
and Mayol’s Fifth, Sixth and Fourteenth Amendment rights by providing the
government pre-trial access to the TSP business records. Mayol also contends that
the district court abused its discretion and violated his due process rights by
admitting into evidence the TSP business records. He says, because the TSP
business records were obtained in violation of his constitutional rights, the records
should have been excluded -- pursuant to Fed. R. Evid. 403 -- as unduly
prejudicial. Mayol also asserts that the admission of the TSP business records -*

We earlier granted Mayol’s motion to proceed pro se on appeal. We construe liberally pro se
pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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Case: 16-11617

Date Filed: 10/16/2017

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which included lists of names, check stubs, and van itineraries and routes -- was so
cumulative that its effect was more prejudicial than probative.
First, to the extent Mayol contends his trial lawyer rendered ineffective
assistance of counsel, we decline to address that claim on this appeal. We will not
consider ineffective-assistance-of-counsel claims raised on direct appeal where -as here -- “the district court did not entertain the claim nor develop a factual
record.” See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).
Instead, the preferred method of raising ineffective-assistance-of-counsel claims is
in a 28 U.S.C. § 2255 motion to vacate. See Massaro v. United States, 538 U.S.
500, 504-05 (2003).
We reject Mayol’s challenge to the admissibility of the TSP business
records; the challenge is barred by the doctrine of invited error. At trial, discussion
took place between the district court and the parties about the admissibility of the
TSP business records. But in the end, Mayol’s lawyer stipulated that the records
were in fact admissible. When a defendant stipulates to the admissibility of
evidence at trial -- and, thus, “invites” the alleged error -- the defendant is
precluded from later challenging the admissibility of that evidence on appeal. See
United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir. 2003).
AFFIRMED.

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