United States v. Jose M. Fernandez-Toledo, Lazara E. Rodriguez-Sensat, Carlos S. Lahera- Gonzalez, & Rafael E. Franjul, 749 F.2d 703 (11th Cir. 1985). · Go Syfert
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United States v. Jose M. Fernandez-Toledo, Lazara E. Rodriguez-Sensat, Carlos S. Lahera- Gonzalez, & Rafael E. Franjul, 749 F.2d 703 (11th Cir. 1985). Cases Citing This Book View Copy Cite
65 citation events (3 in the last 25 years) across 19 distinct courts.
Strongest positive: People v. Pratt (virginislands, 2008-11-14)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Pratt
virginislands · 2008 · confidence medium
See, e.g., United States v. Brannon, 208 F.3d 227 , 227 (10th Cir. 2000); United States v. Evans, 62 F.3d 1233, 1235 (9th Cir. 1995); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir. 1985).
discussed Cited as authority (rule) United States v. Rudolph
N.D. Ala. · 2004 · confidence medium
The general rule is that a new statute or rule "should apply to cases pending on the date of its enactment unless manifest injustice would result.” United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
discussed Cited as authority (rule) Plaisance v. Travelers Insurance
N.D. Ga. · 1994 · confidence medium
Given this fact, the court noted that “[bjecause the Act changes substantive obligations as well as remedial or procedural rights, however, we believe the nature of the parties’ rights weighs against retroactivity in this case.” Baynes, 976 F.2d at 1375 (citing, United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985)).
cited Cited as authority (rule) Federal Deposit Insurance v. Gonzalez-Gorrondona
S.D. Fla. · 1993 · signal: cf. · confidence medium
Cf. United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) (denoting right to pretrial release as a substantive right for purposes of Bradley second factor).
discussed Cited as authority (rule) Trina L. BAYNES, Plaintiff-Appellant, v. AT & T TECHNOLOGIES, INC., Tony Gasaway, Defendants-Appellees (2×) also: Cited "see"
11th Cir. · 1992 · confidence medium
U.S. v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) (“new statutes that affect antecedent rights will not apply retroactively while those that affect only procedure or remedy will apply retroactively.”) (citations omitted).
cited Cited as authority (rule) King v. Tandy Corporation/Radio Shack
M.D. Ga. · 1992 · confidence medium
United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
discussed Cited as authority (rule) James v. American International Recovery, Inc.
N.D. Ga. · 1992 · confidence medium
The Peppertree decision was also based upon the Court’s recognition that “[statutory changes that are remedial in nature apply retroactively.” Id. at 1560 (citing Lussier v. Dugger, 904 F.2d 661, 665 (11th Cir.1990) (“Statutory changes that are procedural or remedial in nature apply retroactively.”) (quoting United States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980)) (also citing United States v. Fernandez-Toledo 749 F.2d 703, 705 (11th Cir.1985) (“[Cjases in this circuit have held that new statutes that affect antecedent rights will not apply retroactively while those that affect …
discussed Cited as authority (rule) Haynes v. Shoney's, Inc.
N.D. Fla. · 1992 · confidence medium
See, e.g., Federal Deposit Insurance Corp. v. 232, Inc., 920 F.2d 815 (11th Cir.1991); Delmay v. Paine Webber, 872 F.2d 356 (11th Cir.1989); Tallahassee Memorial Regional Medical Center v. Bowen, 815 F.2d 1435 (11th Cir.1987), cert. denied, 485 U.S. 1020 , 108 S.Ct. 1573 , 99 L.Ed.2d 888 (1988); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985). 16 .
cited Cited as authority (rule) Toney v. State of Ala.
M.D. Ala. · 1992 · signal: cf. · confidence medium
Cf. United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) (Statutory changes that are remedial in naturé, that is affecting only the available remedy, will apply retroactively).
discussed Cited as authority (rule) Joyner v. Monier Roof Tile, Inc.
S.D. Fla. · 1992 · confidence medium
Regional Medical Ctr. v. Bowen, 815 F.2d 1435 (11th Cir.1987), cert. denied, 485 U.S. 1020 , 108 S.Ct. 1573 , 99 L.Ed.2d 888 (1988); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
discussed Cited as authority (rule) Doe v. Board of County Commissioners
S.D. Fla. · 1992 · confidence medium
Again applying the Bradley criterion of “manifest injustice,” the Eleventh Circuit has held that “new statutes that affect antecedent rights will not apply retroactively while those that affect only procedure or remedy will apply retroactively.” United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) (citing United States v. Vanella, 619 F.2d 384, 385-86 (5th Cir.1980)). la Femandez-Toledo, the Eleventh Circuit declined to give retroactive effect to a law that changed the conditions for pretrial release, stating that it would be “manifestly unjust to apply [a] new substa…
discussed Cited as authority (rule) Federal Deposit Insurance v. 232, Inc. (2×) also: Cited "see, e.g."
11th Cir. · 1991 · confidence medium
Regional Medical Center v. Bowen, 815 F.2d 1435 , 1454 n. 40 (11th Cir.1987) (recognizing that a court will ordinarily apply new legislation to pending cases unless manifest injustice would result), cert. denied, 485 U.S. 1020 , 108 S.Ct. 1573 , 99 L.Ed.2d 888 (1988); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) ("We are ... mindful of the general rule that a new statute should apply to cases pending on the date of its enactment unless manifest injustice would result”); National Wildlife Fed'n v. Marsh, 747 F.2d 616, 619-20 (11th Cir.1984) (“A new statute should not…
discussed Cited as authority (rule) Federal Deposit Insurance Corporation, as Receiver of Cypress Savings Association v. 232, Inc., a Florida Corporation John M. McCabe Thomas W. Underwood Jointly and Severally With Thomas S. Patton, Harbor Federal Savings & Loan Association, Willis, Gwin & Associates, Inc., N/k/a Shoults, Gwin & Associates, Inc., a Florida Corporation, Defendant-Intervenor (2×) also: Cited "see, e.g."
11th Cir. · 1991 · confidence medium
Regional Medical Center v. Bowen, 815 F.2d 1435 , 1454 n. 40 (11th Cir.1987) (recognizing that a court will ordinarily apply new legislation to pending cases unless manifest injustice would result), cert. denied, 485 U.S. 1020 , 108 S.Ct. 1573 , 99 L.Ed.2d 888 (1988); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) ("We are ... mindful of the general rule that a new statute should apply to cases pending on the date of its enactment unless manifest injustice would result"); National Wildlife Fed'n v. Marsh, 747 F.2d 616, 619-20 (11th Cir.1984) ("A new statute should not be …
cited Cited as authority (rule) First Texas Savings Ass'n v. Comprop Investment Properties Ltd.
M.D. Fla. · 1990 · confidence medium
United States v. Security Industrial Bank, 459 U.S. 70, 80 , 103 S.Ct. 407, 413 , 74 L.Ed.2d 235 (1982); and United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
cited Cited as authority (rule) Federal Deposit Ins. Corp. v. Howse
S.D. Tex. · 1990 · confidence medium
Bradley v. School Board of City of Richmond, 416 U.S. 696, 711 , 94 S.Ct. 2006, 2016 , 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
cited Cited as authority (rule) Federal Deposit Insurance v. Cherry, Bekaert & Holland
M.D. Fla. · 1989 · confidence medium
United States v. Security Industrial Bank, 459 U.S. 70, 80 , 103 S.Ct. 407, 413 , 74 L.Ed.2d 235 (1982); and United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
discussed Cited as authority (rule) United States v. Nancy P. Schumann, as the Personal Representative of the Estate of Richard P. Schumann, Deceased, United States of America v. One Assortment of Eighty-Two (82) Firearms
11th Cir. · 1988 · confidence medium
Bradley v. School Board of Richmond, 416 U.S. 696, 711-14 , 94 S.Ct. 2006, 2016-17 , 40 L.Ed.2d 476, 488-90 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919 , 100 S.Ct. 1284 , 63 L.Ed.2d 605 (1980).
discussed Cited as authority (rule) United States v. Schumann ex rel. Estate of Schumann
11th Cir. · 1988 · confidence medium
Bradley v. School Board of Richmond, 416 U.S. 696, 711-14 , 94 S.Ct. 2006, 2016-17 , 40 L.Ed.2d 476, 488-90 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919 , 100 S.Ct. 1284 , 63 L.Ed.2d 605 (1980).
discussed Cited as authority (rule) United States v. Board of Educ. of City of Union City
D.N.J. · 1988 · confidence medium
United States v. Femandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); United States v. Ford, 737 F.2d 1506, 1508 (9th Cir.1984); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (5th Cir.1982) (citing Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919 , 100 S.Ct. 1284 , 63 L.Ed.2d 605 (1980)) (citing Bradley v. Richmond School Board, 416 U.S. 696 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974)).
discussed Cited as authority (rule) United States v. Mark Von Kolter
11th Cir. · 1988 · confidence medium
Bradley v. School Board of Richmond, 416 U.S. 696, 711-14 , 94 S.Ct. 2006, 2016-17 , 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (Former 5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919 , 100 S.Ct. 1284 , 63 L.Ed.2d 605 (1980). 12 The government contends we should find Congress intended the redefinition of "convicted felon" contained in Sec. 921(a)(20) not to apply based on the general saving statute, 1 U.S.C.
discussed Cited as authority (rule) United States v. Kolter
11th Cir. · 1988 · confidence medium
Bradley v. School Board of Richmond, 416 U.S. 696, 711-14 , 94 S.Ct. 2006, 2016-17 , 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (Former 5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir. 1979), cert. denied, 445 U.S. 919 , 100 S.Ct. 1284 , 63 L.Ed.2d 605 (1980).
examined Cited as authority (rule) United States v. Ilario M.A. Zannino (4×)
1st Cir. · 1985 · confidence medium
We recognize that other courts have reached a contrary conclusion, e.g., United States v. Fernández-Toledo, 749 F.2d 703, 705 (11th Cir.1985), and we do not lightly create a split among the circuits.
cited Cited "see" Jackson v. Thweatt
Tex. · 1994 · signal: see · confidence high
See United States v. Fernandez-Toledo, 749 F.2d 703, 706 (11th Cir.1985); Fust v. Arnar-Stone Labs, Inc., 736 F.2d 1098 , 1100 (5th Cir.1984).
discussed Cited "see" Maddox v. Norwood Clinic, Inc.
N.D. Ala. · 1992 · signal: see · confidence high
See Fernandez-Toledo, 749 F.2d at 705 . 6 Proponents of retroactivity argue that the Act affects only procedural and/or remedial rights, that it fails to impose any additional duties on defendants, and that the discriminatory conduct with which defendants are charged was prohibited by law prior to passage of the Act.
cited Cited "see" Godfrey v. Francis
N.D. Ga. · 1985 · signal: see · confidence high
See United States v. Fernandez-Toledo, 749 F.2d 703 (11th Cir.1985). 29 .
examined Cited "see" United States v. Grant C. Affleck, United States of America v. Frank Kowalik, Jr. (4×) also: Cited "see, e.g."
10th Cir. · 1985 · signal: see · confidence high
See United States v. Fernandez-Toledo, 749 F.2d 703 (11th Cir. 1985) (§ 3731, which permits the Government to appeal order granting bail); United States v. Mitchell, 600 F.Supp. 164 (N.D.Cal.1985) (§ 3142, which provides for pretrial detention).
discussed Cited "see, e.g." Ex parte Billy Joe Carter, Jr. (In re: State of Alabama v. Billy Joe Carter, Jr.) (Shelby Circuit Court: DC-23-901353)
Ala. Crim. App. · 2024 · signal: compare · confidence medium
Compare United States v. Ballone, 762 F.2d 1381, 1383 (11th Cir. 1985) (holding that there was no ex post facto violation when the changes in the right to bail under the Bail Reform Act were applicable at the time the right accrued) with United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir. 1985) (declining to allow retroactive application of the 30 CR-2023-0793 change in the Bail Reform Act to defendants whose "rights to bail had already vested, i.e., it was an antecedent right existing before the change in the law" (emphasis added)).
discussed Cited "see, e.g." VALDEZ
BIA · 1997 · signal: compare · confidence medium
Compare United States v. Zannino, 761 F.2d 52 (1st Cir. 1985) (holding that newly enacted bond provisions applied to defendant released on bail before effective date of Act where defendant’s expectation of remaining free on bail was minimal), with United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir. 1985) (holding that newly enacted bond provisions did not apply to defendant released on bail before effective date of Act where defendant’s rights to bail had already vested).
cited Cited "see, e.g." McLaughlin v. New York, Governor's Office of Employee Relations
N.D.N.Y. · 1992 · signal: see also · confidence medium
See Leake, 695 F.Supp. at 1417 (construing Bennett, 470 U.S. at 636 , 105 S.Ct. at 1558 ; see also United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985).
discussed Cited "see, e.g." United States v. Peppertree Apartments, City Court II Apartments, George Bailes, Jr.
11th Cir. · 1991 · signal: see also · confidence medium
Lussier v. Dugger, 904 F.2d 661, 665 (11th Cir.1990) (quoting United States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980)); see also United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) (“[CJases in this circuit have held that new statutes ... that affect only ... remedy will apply retroactively.”).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
Jose M. FERNANDEZ-TOLEDO, Lazara E. Rodriguez-Sensat, Carlos S. Lahera-Gonzalez, and Rafael E. Franjul, Defendants-Appellees
84-5605.
Court of Appeals for the Eleventh Circuit.
Jan 3, 1985.
749 F.2d 703
Linda Collins-Hertz, Jon May, Barbara Petras, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant., Edward R. Shohat, Benedict P. Kuehne, Bierman, Sonnett, Shohat & Sale, Miami, Fla., for defendant-appellee Jose Fernandez-Toledo., Federico A. Moreno, Miami, Fla., for defendant-appellee Lazara Rodriguez-Sensat., John Lazarus, Miami, Fla., for defendant-appellee Carlos Lahera-Gonzalez., Ron Dion, North Miami Beach, Fla., for defendant-appellee Rafael Franjul.
Hatchett, Clark, Stafford.
Cited by 38 opinions  |  Published
PER CURIAM:

I. The Facts Underlying the Controversy

The appellees in this ease were arrested and indicted for engaging in drug trafficking and racketeering. [1] A magistrate set bail for Rodriguez-Sensat and Lahera-Gonzalez and denied bail to Fernandez-Toledo and Franjul. The district judge reviewing the bail determination set bail for Fernandez-Toledo and Franjul and lowered the[*704] amount of bail set for Rodriguez-Sensat and Lahera-Gonzalez. [2] The government, fearing that government witnesses would be harmed if Fernandez-Toledo and Franjul were released, [3] attempted to appeal the district court’s bail order, and alternatively petitioned the court of appeals to issue a writ of mandamus compelling the district court to properly exercise his discretion. This court first held that it did not have jurisdiction over the government’s appeal because it was an interlocutory matter and not a final appealable order pursuant to 28 U.S.C. § 1291. United States v. Fernandez-Toledo, 737 F.2d 912, 916-18 (11th Cir.1984). However, the court issued a writ of mandamus, pursuant to 28 U.S.C. § 1651, because the district judge in his order indicated that he believed that there was an absolute right to bail under the eighth amendment. This court, holding that there was not an absolute right to bail, concluded that the district court did not exercise the discretion required by the Bail Reform Act and the relevant case law. Fernandez-Toledo, 737 F.2d at 920. Therefore, we ordered the district court to exercise its discretion and reconsider the bail issue including as an option the denial of bail altogether. Id. 4

Following the court of appeals’ order, the district court ordered a hearing which was held on July 19, 1984. The United States filed a Motion for Protective Order, requesting that the defendants not be released from custody, and presented evidence and testimony in support of the motion. The district court denied the govern-merit’s motion. The order of the district court in its entirety stated:

THIS CAUSE having been referred back to this Court for proceedings consistent with Eleventh Circuit Court Case No. 83-5834 (Docket Item # 298), and this Court having considered the complete record through hearing and pleadings (Docket Items # 301, # 303, # 309-# 310) it is hereby
ORDERED AND ADJUDGED:
1. That the Government’s Motion for Protective Order is DENIED; and,
2. That pre-trial conditions of release announced in this Court’s order dated December 22, 1983 (Docket Item #23), are GRANTED as stated therein.

This appeal followed. [5] The United States maintains both that the district court’s denial of the government’s motion for a protective order is immediately appealable pursuant to 28 U.S.C. § 1291 and that the district court abused its discretion when it ordered the release of the appellees from custody despite the danger to the government's witnesses and their families.

The government’s contentions lack merit and this appeal is dismissed because we lack jurisdiction. As we said in our previous opinion in this case: “Accordingly, the United States cannot appeal in a criminal case without express Congressional authorization ... A government appeal from a bail determination is nowhere so authorized.” 737 F.2d at 915 (citation and footnote omitted). At page 916 we discussed particularly 18 U.S.C. § 3731 (the statute author[*705] izing the government to file an appeal from certain specified district court orders) and that bail orders entered by district courts were not included in the narrow group of government authorized appeals.

We are cognizant of the fact that the Bail Act has been amended by the Comprehensive Crime Control Act of 1984, Pub.Law # 98-473, signed by the President and thus becoming effective on October 12, 1984. In addition to changing the conditions or combination of conditions that authorize release or detention of pretrial detainees, 18 U.S.C. § 3731 has been amended to permit the government as well as a detainee to appeal from a district court order either granting or denying bail.

We do not give retroactive effect to this change in the law. We are, however, mindful of the general rule that a new statute should apply to eases pending on the date of its enactment unless manifest injustice would result. Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (5th Cir. Unit A 1982). Additionally, eases in this circuit have held that new statutes that affect antecedent rights will not apply retroactively while those that affect only procedure or remedy will apply retroactively. See e.g., United States v. Vanella, 619 F.2d 384, 385-86 (5th Cir.1980). [6] In this case the changes in the substantive and procedural aspects of the Bail Act are contemporaneous. It would be manifestly unjust to apply the new substantive law to the appellees because they were entitled to be released and their release was ordered by the district court before the new law became effective and before this case was heard by the panel. Their rights to bail had already vested, i.e., it was an antecedent right existing before the change in the law. We decline to give the Act partial retroactivity and therefore we order that the appeal be

DISMISSED.

1

. The 20-count RICO indictment charged seven named defendants (including the four who are parties to this appeal), in various combinations of persons, with violation of 18 U.S.C. §§ 2 (aiding and abetting), 201(d) (bribery), 371 (conspiracy), 1503 (obstruction of justice), 1952 (travel act), 1962(c) and (d) (conducting and participating in the affairs of an enterprise through a pattern of racketeering activity and conspiracy to do so), 21 U.S.C. §§ 841(a) (possession of in excess of 1,000 pounds of marijuana with intent to distribute), 846 (conspiracy), 848 (conducting a continuing criminal enterprise), 952(a) (importation) and 963 (conspiracy and attempt to import). Fernandez was charged in each count; Rodriguez was charged in 14 counts; Lahera was charged in nine counts; and Franjul was charged in three counts, including the RICO conspiracy count.

2

. Bail was set for Fernandez-Toledo in the amount of $1,000,000 personal surety and $750,000 corporate surety. Bail was set for Franjul in the amount of $1,000,000 personal surety and $500,000 corporate surety. Rodriguez-Sensat’s bail was reduced to $200,000 personal surety and $75,000 corporate surety and Lahera-Gonzalez’s was reduced to $200,000 corporate surety. Other restrictions were also placed on the four men including an order to have no contact with government witnesses and a nighttime curfew.

3

. This fear was based upon a conversation monitored by the FBI at which the appellees were present. That conversation centered upon a particular person, Moises Perez, whom the appellees believed was a government informant. Fernandez-Toledo stated, "We have to eliminate him quickly.” Other conversations intercepted by the FBI supported a belief that Fernandez-Toledo would in fact carry out this threat. These conversations concerned other persons that the appellees maintained they had killed. See United States v. Fernandez-Toledo, et al., 737 F.2d 912, 914 (11th Cir.1984).

4

. The court specifically stated, "We cannot compel the district judge in any particular way, nor do we seek to do so." 737 F.2d at 920.

5

. At a status conference held on August 14, 1984, trial was scheduled to begin on November 26, 1984.

6

. This formulation of the manifest injustice test is merely a "simplification" of the three-part test used by the Supreme Court in Bradley, supra. See Watkins Motor Lines, Inc. v. Interstate Commerce Commission, 641 F.2d 1183, 1186-87, n. 3 (5th Cir. Unit B 1981). Those three factors are: the nature and identity of the parties; the nature of their rights; and the nature of the impact of the change in law upon those rights. Bradley, 416 U.S. at 696, 94 S.Ct. at 2006. We reach the same conclusion using the above three factors.