White Collar Criminal Defense Lawyer Blog

In U.S. v. Philador the two defendants pled guilty to conspiracy to steal government funds in violation of 18 U.S.C. §371 and to the charge of theft of government funds in violation of 18 U.S.C. §641. Their offenses involved a scheme to submit fraudulent tax returns to the Internal Revenue Service using stolen social security numbers. They then received refund checks from the government and deposited the funds into various corporate accounts of companies they controlled. The presentence investigation report recommended a six-level enhancement to their offense level pursuant to guidelines section §2B1.1(b)(2)(c) because it claimed the offense involved 250 or more victims. Only twenty-six of the taxpayer victims had been positively identified by the government. The defendants objected to the enhancement, and while they conceded there were more than 250 social security numbers used to file over 250 fraudulent tax returns, the defendants argued that the government failed to meet its burden because the government failed to show by a preponderance of the evidence that 250 of the social security numbers were authentic and belonged to living people.

In rejecting the defendant's argument, the 11th Circuit found the district court did not err in finding there 250 victims. There was no dispute that over 250 social security numbers were used to cause the Internal Revenue Service to issue fraudulently submitted returns. Because the Internal Revenue Service issued refunds for tax returns associated with those numbers, the district court made the "legitimate" inference that social security numbers corresponded to actual persons. The 11th Circuit has stated in prior cases that it is not necessary for the government to show that in the context of a government issued identification the government verifies an individual's identity before it issues a driver's license or a passport. It is reasonable to conclude that the government routinely obtains an applicant's identity to verify the authenticity of that identity. Here the district court could infer, based on common sense and ordinary human experience that the Internal Revenue Service verifies identifying information, like social security number, before issuing a tax refund. The fact that the Internal Revenue Service paid the refund to the defendants indicates that the social security number used to procure the refunds are associated with real people and the district court's conclusion was not erroneous.

Additionally, the district court did not err in applying the six-level enhancement without first finding the victims were living. A victim in this context under the sentencing guidelines a victim is a person whose means of identification was used unlawfully. A means of identification is limited to an actual, and not fictitious, individual. The 11th Circuit found the plain meaning of the phrase "actual" does not distinguish between living and deceased persons. Therefore it was not necessary for the district court to make this finding.

This case represents a type of identity theft involving the use of another individual's social security numbers to file a tax return which results in the Internal Revenue Service issuing the refund to the wrong person. Prosecutions of this nature have become more common in federal courts in Miami, Tampa, Orlando, and Jacksonville, as well as other Florida communities because tax returns can be filed on-line.

In U.S. v. Whatley, the defendant was charged with four armed bank robberies that took place from 2003 through 2006. He was arrested following an aborted robbery attempt in 2007, to which he pled guilty. At his federal criminal trial on the earlier four bank robberies, the government called 14 different bank employees as witnesses who identified Whatley. The defendant challenged the admission of the in-court identifications by the 14 bank employees claiming a violation of the Due Process Clause. Whatley relied on 11th Circuit precedent which held that the admission of an in-court identification may violate a defendant's federal right to due process if the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (Code v. Montgomery) Whatley argued the in-court identification was unnecessarily suggestive because he was the only African American in the courtroom other than courtroom personnel, he had never been identified in a line-up or photo array before trial, and he was first seen by the witnesses during their testimony.

The panel held that in Perry v. New Hampshire the Supreme Court abrogated the 11th Circuit's in-court identification precedent. Perry held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not arranged by law enforcement officers. Perry rejected the argument that due process requires judicial prescreening of all identifications obtained under suggestive circumstances. Because the identification was not the result of improper police conduct, there was no due process violation. The 11th Circuit ruled that the defendant's right to due process was protected byt the right to confront all eyewitnesses who identified him in court, the right to offer impeachment evidence, and the limiting instructions given by the district court given before each in-court identification.

Prior attempted bank robbery was admissible

Whatley argued that the 2007 attempted robbery should not have been admitted under 404(b), arguing that the attempted bank robbery did not bear sufficient similarity to the charge crime to be introduced as evidence of the defendant's identity. The 11th Circuit found that the combination of the similarities between the charged robbery and the attempt marked the crimes as the "handiwork" of the defendant.

Following the jury deliberations, it was discovered that the jury had viewed documents that had not been admitted during trial but were mistakenly sent back to the jury. That document was a single page from Defendant's past criminal history that listed a 2002 charge of fleeing a police offer, 2003 charge of theft by receiving stolen property, possession of a firearm by a convicted felon. Though the defendant demonstrated the evidence was prejudicial, the 11th Circuit concluded that district court did not abuse its discretion in finding viewing of the exhibit was harmless error.

Enhancement for abducting bank employees reversed

The defendant appealed a four level enhancement under § 2B3.1 of the sentencing guidelines which provides for the enhancement if a person was abducted to facilitate the commission of the offense or to facilitate escape. In the guidelines, the term "abducted" means that a victim was forced to accompany an offender to a different location. The district court found that the defendant took the hostages and herded them from one part of the bank to another, but he never took any employees outside. (The defendant moved tellers and other bank employees from their respective work stations to the vault area of the bank.) Viewing this issue on a case by case basis, the 11th Circuit held that in these facts moving the victims between individual rooms or offices in a local bank branch would be treated as a single location.

The dissenting opinion found that Whatley's arguments would fail under Pre-Perry 11th Circuit case law and disagreed with the need to decide the broad "sweep" of Perry. It found that the district court's pretrial hearing on whether the bank employee witnesses should be allowed to identify the defendant as the perpetrator of the several robberies was sufficient. The dissent pointed out that problem with the majority ruling is that the opinion holds that there are no constitutional problems with in-court identifications that are not tainted by suggestive police procedures, even if the in-court identification is made years after the events. The dissent states that given this holding, it is critical that district courts carefully consider requests to allow relevant expert testimony on the possible shortcomings of eyewitness identification. The dissent recognized that prior 11th circuit court cases appear to hold that the exclusion of this expert testimony can never be an abuse of discretion. It believes those cases were wrongly decided and recommends the Eleventh Circuit reconsider these cases en banc. The dissent also found that the extrinsic evidence viewed by the jury was not harmless error and the government did not overcome the presumption of prejudice.

In U.S. v. Hamilton, the defendant appeal the denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which authorizes a court to modify or reduce a sentence for an amendment to the guideline range. The defendant pled guilty to drug offenses including conspiracy to possess and distribute 50 grams or more of cocaine base (crack cocaine). The defendant's presentence investigation report (PSR) stated that the defendants in the conspiracy received at least one kilogram of powder cocaine that was cooked into crack cocaine. He was assigned a base offense level of 38 based on the drug offense involving at least 1.5 kilograms of crack cocaine. The defendant objected to this base offense recommendations by the PSR. In response to the defendant's objections, the PSR said that at least two weeks of activities by the conspiracy would have been sufficient to make at least 1.5 kilograms of crack cocaine. The addendum implicitly used the conversion rate of 75% of powder cocaine to powder. At sentencing the district court adopted the addendum's calculation that the defendants received on kilogram of powder per week and operated for at least 2 months.

The defendant filed a motion for sentence reduction pursuant to 3582(c)(2) in light of amendment 750 to the guidelines which raised to 8.4 kilograms the minimum amount of crack cocaine necessary to establish a base offense level of 38. In response to the motion to reduce, the probation officer found the defendant was responsible for 12 kilograms of crack cocaine and fell under the offense level of 38. The defendant's response was that at sentencing the district court initially only found him responsible for at least 1.5 kilograms of cocaine.

The 11th Circuit held that the district court may reduce a defendant's sentence based on a subsequently enacted amendment if the sentencing Guidelines make the amendment retroactively applicable. In determining the amended guideline range, the district court may not reconsider any guideline application decisions and must leave all previous factual decisions intact. The district court is limited to considering the sentence that it would have imposed had the amendment been in effect at the time of the original sentencing and must leave all its previous factual decisions intact.

The district court erred in relying on the government's position which contained inaccuracies or incomplete information about the drug findings at the original sentencing. The government cited certain paragraphs from the PSR, but those paragraphs did not say how much powder cocaine the conspiracy group used to cook a kilogram of crack cocaine. Furthermore it was not clear what the district court's original findings were in reaching its sentencing decision. For this reason, the district court did not show that it accurately determined the original drug quantity, and the 11th Circuit remanded for the district court to determine what drug quantity finding it made at the original sentencing. On remand that district court may not receive any additional new evidence.

Please read more about drug crimes by the visiting the drug crimes practice page.

Also, in case you missed it, read my previous blog entry.

If you, or someone you know is being charged with drug crimes, call this Miami criminal defense attorney now!

In U.S. v Washington the defendant pleaded guilty to conspiracy to traffic in unauthorized credit cards and using and trafficking in unauthorized credit card numbers in violation of 18 U.S.C. § 1029. The presentence investigation report recommended an enhancement under sentencing guidelines § 2B1.1(b)(2)(C) because the number of victims exceeded 250, the threshold number for a 6-level enhancement. Washington disputed the number of victims and requested that the government identify the victims by name. The defendant noted the government only identified 70 banks and financial institutions and requested hard evidence of the 250 or more victims. He also disputed the length of time he was involved in the conspiracy.
At the sentencing hearing, the government did not present any evidence identifying 250 or more victim and only argued that there were thousands of individuals who had their credit cards stolen. The district court ruled for the enhancement noting that it previously applied the enhanced the codefendants' sentences.

The 11th Circuit held that the government has the burden of introducing sufficient and reliable evidence to prove the necessary facts by a preponderance of the evidence. The government did not meet its burden because it did not introduce any evidence to support the enhancement. While the government told the sentencing court there were over 250 individuals who have been victims of stolen credit card information and other related account information during the time the defendant was involved in the scheme, the representation was insufficient. Absent a stipulation by the parties, an attorney's factual assertions at a sentencing hearing do not constitute evidence that the district court can rely upon in the face of challenged conclusions of the presentence investigation report. Even though the district court had applied the enhancement to the coconspirators, those findings could not serve as a basis for applying the enhancement to the defendant because the defendant objected. The defendant should have been given an opportunity to rebut the evidence or to generally cast doubt on its reliability. Furthermore, the defendant was not a participant of the conspiracy during the entire duration and without the information about the identities of the victims and the dates of the theft of their credit card information, the government failed to meet its burden of showing that the fraud scheme involved more than 250 victims during the time of the defendant's involvement.

On remand, the 11th Circuit ruled that the government would not be allowed to prove that there were more than 250 or more victims for whom the defendant was responsible. The 11th Circuit found that the government was aware of the defendant's objection and nothing prevented the government from putting on the evidence at the sentencing hearing. A party that carries the burden on a contested sentencing issue will generally not get the opportunity to try again on remand if the evidence is found insufficient on appeal. While the 11th Circuit has the discretion to permit the government a "second bite at the apple," normally a remand for further proceedings is inappropriate when the issue was already before the district court and the parties had an opportunity to introduce evidence. Here the government failed to introduce any evidence concerning the number of victims.

Please read more about identity theft and credit card fraud -one of the biggest areas of white collar crimes being charged in the federal and state courts.

Call us if you're seeking a credit card fraud attorney in Miami.

In U.S. v. Diaz Calderone, the defendant was convicted and sentenced for the federal crime of being found in the United States after having been deported. The issue here is whether a prior Florida aggravated battery conviction should be classified as a "crime of violence" under the sentencing guidelines to warrant a sentence enhancement. The 11th Circuit found it was, and in this appeal the defendant challenged the district court's application of the "modified categorical" approach in determining that Diaz Calderone's prior was a crime of violence.

The defendant's aggravated battery conviction, he was specifically charged with the battery on a pregnant victim whom the perpetrator knew or should have known was pregnant. Under the Florida statute for battery, an aggravated battery upon a pregnant woman need not be violent and can be committed merely by intentional touching the pregnant victim against her will by committing a simple battery. Simple battery occurs when a person intentionally touches or strikes another person against their will, or intentionally causes bodily harm to another person. Therefore under Florida law, aggravated battery upon a pregnant woman can be accomplished by: 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm. The 11th Circuit determined that a conviction for aggravated battery on a pregnant woman is not a categorical crime of violence because the slightest contact could be an aggravated felony under the Florida statute but not a crime of violence under the federal sentencing guidelines for sentencing guidelines purposes. The district court correctly applied the modified categorical approach.

The charges and conviction did not establish what Diaz-Calderone did because he pleaded nolo contendere to an information which charged him in the disjunctive with intentionally touching or striking the victim against the person's will or intentionally causing bodily harm to the victim. Standing alone the charges are consistent with either mere touching, which would not be a crime of violence, or with causing bodily harm, which would be a crime of violence.

In deciding the conviction was a crime of violence, the district court did not rely on the sworn affidavits from police officers. Sworn affidavits containing statements of witnesses are not necessarily reliable or credible. Where the modified categorical approach is used, Florida arrest affidavits cannot be used because they do not establish with sufficient certainty the conduct involved in the state crime. A complaints or affidavits do not establish "with sufficient certainty for the enhancement." Here the district judge did not rely on the affidavits nor did the judge treat the nolo contendere plea as an admission. Instead the court relied on Diaz-Calderone's own statements made in his change of plea hearing in state court. The government submitted an audio recording of the plea in which he agreed with the factual statements that made his offense a violent felony. The district court and the 11th Circuit panel listened to the change of plea proceedings by the state court judge and confirmed the colloquy with the defendant contained an admission by the defendant that the affidavit supporting the complaint was correct, thus establishing a crime of violence.

In case you missed it, please read my previous entry. The theme is firearm offenses

If you, or someone you know, is being charged with a firearm offense and is seeking a defense lawyer in Miami, please call and ask for more information.

In U.S. v. Hall, the defendant pled guilty to the charge of possession of a handgun by a convicted felon. The district court enhanced his sentence after the court determined that a prior felony conviction for possession of an unregistered shotgun qualified as a crime of violence under the sentencing guidelines. The guidelines require an enhancement for a defendant who commits any part of the offense subsequent to sustaining one felony conviction of a crime of violence. The guidelines commentary states that the unlawful possession a firearm, such as a sawed off shotgun as described in Title 26 U.S.C. § 5845, is a crime of violence and inherently dangerous when possessed unlawfully.

Citing the Supreme Court's decision in Stinson v United States, the 11th Circuit affirmed that a commentary in the sentencing guidelines manual which interprets or explains a guideline is authoritative, unless it violates the constitution, a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline.

The sentencing guidelines defines a crime of violence as follows: an offense that has as an element the use, threatened use, or attempted use of violence or physical force; a burglary of a dwelling, arson, or extortion, involves the use of explosives; or otherwise involves conduct that presents a serious risk of physical injury to another. The court in recent precedent has elaborated on this "crime of violence" definition. An offence can be a crime of violence if it fits into one of three categories. The first is referred to the elements clause crimes, the second category includes the enumerated crimes of burlary of a dwelling, arson, etc. The third category is the "residual clause", included those crimes that "otherwise involve conduct that presents a serious potential risk of physical injury to another."

In deciding whether an offense qualifies as a crime of violence under the "residual clause," the 11th Circuit employs a three-step "categorical" approach established by the Supreme Court in Taylor v. United States. First, the court examines the offense in terms of how the law defines the offense, not how a defendant might have committed it. Second, the court determines whether the generic definition of the offense involves conduct that presents a serious risk of physical injury to another. Third, if the offense does present a risk of injury, it is classified as a crime of violence only if it is roughly similar in kind and degree to the risk posed by the enumerated crimes listed in the residual clause. Those crimes are: burglary of a dwelling, arson, extortion, and the unlawful use of explosives. The 11th circuit rejected the defendant's argument that under United States v. Booker the guidelines commentary was not authoritative.

The 11th circuit found that the Supreme Court's decision in Stinson makes the commentary binding. Though the court would normally apply the categorical approach to determine whether an offense qualifies as a crime of violence, the court is bound by the explicit statement in the guidelines commentary, which states that the unlawful possession of a firearm described in § 5845 is a crime of violence.

In U.S. v. Cruz, the defendant and her brother obtained credit cards numbers which they purchased from a waiter working at a Flanigan's restaurant in Hialeah, Florida. Using a credit card skimming device, the waiter sold the skimmed numbers to a codefendant who was married to Cruz. Cruz's sister also a codefendant worked at a Target. At one point after a complaint by a customer about an authorized purchase of $200 on the credit card, Target security began to focus on the sister. While working the register they observed her and became suspicious because she was continuously selling to the same man buying stacks of gift cards and other merchandise. She sold 65 gift cards and 50 "other" other transactions involving the same two customers. After she was interview by Metro-Dade Police, she admitted selling to her brother who came into the store to use credit cards she knew to be fraudulent and did not belong to him.

They were convicted of aggravated identity theft. The identity statute, 18 U.S.C. §1028(a)(1) mandates a 2 year additional consecutive sentence for a defendant convicted of a predicate crime if during (or in relation to) the commission of the predicate crimes, "the offender knowingly transfers, possess, or uses, without legal authority, a means of identification of another person." The 11th Circuit found that the defendant's underlying offense of using an unauthorized access devise (section 1029) was a predicate offense for purposes of §1028A and were subject to the 2 year consecutive sentence in addition to the guidelines sentence. In calculating the guidelines sentence, the district court gave them a two- point increase for the use of a device-making equipment under U.S.S.G. §2B1.1(b)(10)(A)(i).

The defendants argued this was double counting and found support in the commentary of U.S.S.G. §2B1.6 which limits the application of §2B1.1(b)(10) to avoid double counting. That section states that the guidelines sentence for an aggravated identity theft conviction under §1028 is the statutory term of imprisonment. The commentary prohibited applying any specific offense characteristics for "the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense" because the sentence under 2B1.6 accounts for this relevant conduct. The defendant interpreted this commentary to prohibit a guidelines enhancement for relevant conduct that includes the use of a device-making equipment. The 11th Circuit did not agree and found that §2B1.6 allows for an enhancement for the use of device-making equipment. The court interpreted the commentary of §2B1.6 to prohibit the enhancement where the relevant conduct pertains to the transfer, possession or use of a means of identification. Here, the defendants' enhancements were premised on relevant conduct related to the device-making equipment. The court found the commentary did not prohibit this relevant conduct from serving as the basis for the increase. The evidence supported the enhancement given the sister's knowledge her codefendant brother bought merchandise using credit cards that did not belong to him. There was also circumstantial evidence that the sister knew about the skimmer because she lived at the same address where it was found.

In U.S v. Davis the defendant was charged in a 16-count indictment with various offenses arising out seven armed robberies. During the jury selection one of the prospective jurors, a dance instructor, announced she had a problem serving because she was paid by the hour and would not be paid during the trial. Another prospective juror said her English was poor. Both were seated as jurors anyway. The 12 jurors were empaneled, but there were no venire members remaining to select as alternates, and the trial began without alternates. After the trial began, the defendant announced that he was dissatisfied with his court-appointed counsel and insisted on representing himself. The defendant also announced to the court that he wanted to go back to his cell for the remainder of the trial and turned down an offer that would have allowed him to monitor the proceedings from his cell. The trial continued under those conditions, with the defendant representing himself from his cell. When the trial court took an early lunch break to review the issue of the defendant's absence from the trial, the dance instructor approached the trial judge and persisted about the loss of income she faced and the affect this would have on her finances. The non-English speaker also approached and informed the trial court and informed the court that she did not understand everything. When the defendant was asked if he would agree to go with less than twelve he refused. Because the opening statements had been given, the trial judge decided h could not ask the clerk to send up more prospective jurors. The court found it necessary to dismiss the two jurors. The defendant advised the court that he did not agree to a jury trial of less than twelve jurors. The trial judge decided the only alternative was a mistrial. Defendant's standby counsel moved for to dismiss under Double Jeopardy because he argued there was no manifest necessity. The district court denied the motion and the defendant took an interlocutory appeal.

The issue in this appeal was whether a retrial was prohibited under the Fifth Amendment of the U.S. constitution. The "Double Jeapardy Clause" states that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." Jeopardy attaches when the jury is empaneled and sworn and subject to limited exceptions is entitled to have his case decided by that jury. One of those exceptions applies when the mistrial was caused by "manifest necessity," which means "the ends of public justice would otherwise have been defeated by continuing the trial."

The 11th Circuit found no Double Jeopardy violation caused by the trial court declaring a mistrial. Rule 23(b) required a jury be composed of 12 persons and proceeding with less than 12 requires stipulation by the parties. The defendant objected to proceeding with a jury of less than 12. The court found that dismissal of the juror with poor understanding of English was manifest necessity. While she showed sufficient language proficiency during voir dire, she brought her language difficulty to the trial court's attention after the trial started. Under those circumstances dismissing her as a juror became a matter of manifest necessity. Davis's position was against a jury of less than 12 and his position was for a trial with the original 12. Because that was impossible due to the language difficulty of the juror, the mistrial was the only alternative.

In Adkins v. Alabama Department of Corrections, the petitioner, Adkins, was tried and convicted of first degree murder of a Caucasian woman. Adkins is also Caucasian. At the jury selection of his trial, the state exercised nine of its 24 peremptory strikes to remove nine of eleven black potential jurors. Adkins struck one of the two remaining black jurors and ultimately only one black juror served on the jury. At the time of the trial in 1988, the rule in Alabama was that a white defendant lacked standing to challenge the state's exercise of peremptory strikes to remove black jurors from the panel. For this reason there was no objection from the defense nor was there a proffer of reasons by the prosecutor for striking the nine black jurors. The conviction was affirmed and he was sentenced to death. The Alabama Supreme Court affirmed the conviction. While his case was on appeal in the Alabama courts, the U.S. Supreme Court decided in Powers v. Ohio that a defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded juror share the same races. Adkins included a Batson challenge to his appeal to the Alabama Supreme Court, which remanded the case to the trial court for a Batson hearing. At the hearing, the prosecutor proffered reasons for striking each of the nine black jurors. The reason given for striking one juror which is the issue in this case, the prosecutor said, "he answered during the voir dire that he knew about the case and because he was also single." It turned out the potential juror was married and the trial directed the state attorney to supplement the Batson hearing by providing an affidavit explaining his contention that the juror was single. The prosecutor gave as his reason that he believed he was single and their notes do not show he was married. The trial court accepted this explanation and the Alabama courts affirmed the conviction. Adkins filed a 2254 motion in the federal court raising a Batson claim and the district court denied his claim.

The 11th Circuit noted the three-step inquiry to evaluate a prosecutor's use of peremptory strikes: 1) a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; 2) if that showing is made, the prosecutor must offer a race neutral basis for striking the juror; 3) in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Here the focus was on how the Alabama state courts applied the third step in Adkins' appeal. The 11th Circuit noted that in analyzing a defendant's showing of purposeful discrimination, the trial court must "consider all relevant circumstances" in weighing the prosecutor's proffered reasons for the strike. The 11th Circuit concluded that the Alabama appellate courts unreasonably applied the third step of Batson when it failed to consider all relevant circumstances bearing on whether Mr. Adkins established purposeful discrimination. The Alabama appellate court did not fully complete the third requirement of Batson by failing to consider the relevant circumstances bearing on the ultimate issue of discriminatory purpose beyond the fact that the prosecutor had proffered race-neutral reasons for its strikes.

The 11th Circuit found that the appellate court did not consider relevant circumstances raised by Adkins such as: 1) the strength of Adkins' prima facie case; 2) the fact the prosecution explicitly noted the race of every black veniremember (and only black veniremembers) on the jury list the state relied on in jury selection; 3) the fact that specific proffered reasons provided by the prosecutor turned out to be incorrect or contradicted by the record; 4) the trial court did not subject the prosecutor's affidavit to adversarial testing, and 5) the fact the trial court relied upon facts not part of the record, such as the trial court's personal experience with the prosecutor (in finding the prosecutor to be credible.)

In U.S.v. Kuhlman, the defendant was a doctor of chiropractic medicine who owned and operated clinics in the Atlanta area. For five years he submitted $2,944,883 in fraudulent billings to Medicare for fictitious medical services. He did this by submitting HCFA forms to insurance companies indicating that medical procedures were performed by doctors in his clinic though the procedures were never provided. His sentencing guidelines range was 57 to 71 months imprisonment. As part of the plea agreement, the government recommended a variance sentence of 36 months. A few days prior to sentencing, the defendant paid the entire restitution amount of $2,944,883 in full, which impressed the sentencing judge enough to comment that Kuhlman was the first defendant the judge could recall who made such a large restitution payment prior to sentencing. The district court decided to continue the sentencing hearing for six months to allow the defendant extra time to pay off his fine and have the defendant perform public service. The district court expressed a desire to see how the defendant would handle the postponement time before sentencing, believing it would provide a more complete picture of the defendant. The defendant did not disappoint the judge. He logged 391 hours of community service, an average of two hours per day. He visited various medical nursing and chiropractic schools to give presentations on Medicare fraud. He provided 18 days of free chiropractic services at homeless shelters across Atlanta and painted a gym at an elementary school. At the second sentencing hearing the sentencing court imposed a sentence of probation, citing his community service work during the continuance, his restitution, and the rising cost of incarceration. The sentence was a downward variance of 20 levels.

The 11th Circuit found the sentence was substantively unreasonable because "he stole $3 million and did not receive so much as a slap on the wrist-it was more like a soft pat." The time served sentence from a downward variance from 57 months failed to achieve an important goal of sentencing in a white collar crime prosecution, the need for general deterrence. The court gave its reason why deterrence was so important in health care fraud cases. It explained that insurance companies rely on the honesty and the integrity of medical practitioners in billing for their services. For that reason, deterrence is an important factor in the "sentencing calculus" because health care fraud is so rampant that the government lacks the resources to reach it all. The court found that one of the government's primary objectives in obtaining a conviction in a health fraud prosecution is to send a message. While the court did not imply that probation could never be an option in a white-collar fraud case, in view of the totality of the circumstances, the nature of the offense and the extent of the variance, it was an unreasonable sentence here. Though the district court cited several §3553(a) factors at the sentencing hearing, the sentence did not reflect the seriousness of the crime, it did not promote respect for the law, provide just punishment or adequately deter other similarly inclined health care providers. Furthermore, 11th Circuit made a point of stating that the sentencing guidelines do not give a special sentencing discount for economic or social status as sentences given to the defendant are unavailable to defendants of lesser means.

Read more about Medicare Fraud
Please read my previous entries for the month of March, including this one from March 31st:Challenge to the use of a Florida state court prior conviction to enhance sentence fails

In U.S. v. Gandy the defendant was convicted of possession of a firearm and sentenced to 180 months. His sentence had been enhanced under the Armed Career Criminal Act (ACCA) because he had been convicted of at least three prior violent felonies. In challenging the sentence he argued that the government failed to meet its burden of establishing that his convictions labeled aggravated assault on a law enforcement officer and the burglary of a structure were qualifying offenses using documents approved by the Supreme Court in Shepard v. U.S. He argued that the information and certified judgment of conviction cited only a sentence enhancement provision of the Florida Statutes and did not cite the substantive provision of the aggravated assault statute, the government has not sufficiently proven that his conviction was for that particular crime. The 11th Circuit disagreed and found the district court correctly concluded that the omission of an express citation to the Fla. Stat. § 784.021 (the substantive provision creating the crime of aggravated assault) was not fatal because the information and certified judgment establish that the defendant had pleaded guilty to aggravated assault on a law enforcement officer, the violent felony under ACCA. The certified judgment indicated that the defendant had pleaded nolo contendere to aggravate assault of a law enforcement officer which is the same offense that was charged in the information, making it clear he was convicted for aggravated assault. Furthermore, the court found the defendant had another conviction for simple vehicle flight that was a predicate conviction under the ACCA. The 11th Circuit recently held in U.S. v. Petite that a simple vehicle flight conviction under Florida state law qualifies as a violent felony under the residual clause of the ACCA (§924(e)).

The only argument that was not addressed in Petite, which the defendant raised here, was the unconstitutionally of the residual clause of the ACCA. The 11th Circuit rejected the vagueness argument on the grounds that the Supreme Court already determined that the residual clause, although at times is "difficult for the courts to implement, falls within congressional power to enact and constitutes an intelligible principle that provides guidance that allows a person to conform his or her conduct to the law." (Though Judge Scalia's dissent suggested the statute is unconstitutional.) The 11th Circuit cited six other circuits that have upheld the constitutionality of the ACCA residual clause and no circuit has gone the other way.

The defendant also challenged his sentence on the grounds that the magistrate judge who accepted the plea erred in advising him that the maximum penalty would be 10 years in prison. The 11th Circuit rejected the claim because the district court noted that he entered the plea with the incorrect understanding, the district court explained that it was an error and correctly advised him of the mandatory minimum sentence of 15 years. He gave the defendant a chance to back out of the plea and he said he did not wish to withdraw the plea.

In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) ("safety valve") provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon "in connection with the offense." Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.

In this case of first impression in the 11th Circuit the court focused on the interpretation of the language "in connection with the offense." No definition or explanation was provided in the guidelines or the statutes. The court rejected the government's argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if "a weapon was possessed" and not "if a weapon was possessed in connection with the offense." A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a "difficult task" to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a "connection" with the drug offense depended on whether the firearm "facilitated or had the potential to facilitate" the drug offense. Under the facts of Carrillo's case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction "greased the wheels" for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.

The defendant in U.S. v. Hoffman was sentenced to life for his conviction of conspiracy to distribute of 50 or more grams of methamphetamines in violation of 21 U.S.C. §§ 841(a)(1), 846, and with possession with intent to distribute methamphetamines. Prior to trial on these federal crimes the government filed a notice pursuant to 21 U.S.C. §851 that it intended to seek enhance punishment base on a prior Florida state drug convictions for conspiracy to traffic in cocaine and possession of cocaine. His priors were committed at 17, and at the time, he was sentenced as a youthful offender. The prior Florida felony drug convictions increased the minimum from 10 years to life imprisonment and at sentencing the district court imposed a life sentence. On appeal, the defendant challenged the life sentence under the Eighth Amendment arguing the sentence was cruel and unusual punishment because the basis for the punishment were the two conviction for offenses committed while the defendant was a juvenile.

Defendant relied on the Supreme Court decision in Roper v. Simmons where the court held that the 8th and 14th amendments forbid imposing the death penalty on offenders who were under the age of 18 when their crimes were committed. The 11th Circuit found Roper did not apply and distinguished it on these grounds:
1. Roper involved a death sentence and not a life imprisonment.
2. Roper did not involve a juvenile prior uses as a sentencing enhancement for an adult offender.

In an earlier case, the 11th Circuit had rejected a challenge to the use of youthful offender convictions under the career offender sentencing guidelines and the Armed Career Criminal Act because it found Roper does apply to sentencing enhancement cases. "Roper does not mandate that we wipe clean the records of every criminal on his or her eighteenth birthday." In two prior cases the 11th Circuit had held that mandatory life enhancement provision of §851, for defendants having two or more prior felony drug offenses, does not violate the Eighth Amendment.

The 11th Circuit also rejected the defendant's argument that Miller v. Alabama made the sentence illegal. In Miller the Supreme Court prohibited a mandatory life-without-parole-sentence for defendants who were under the age of 18 when they committed the crime. Miller was distinguished by the court because it involve a juvenile offender facing punishment for a crime committed as a juvenile and focused on the reasons why it would be cruel and unusual for a juvenile to face a mandatory life sentence. The 11th Circuit found nothing in Miller that said an adult offender who committed the crimes while a juvenile should not receive a mandatory life sentence as an adult after committing the crime as an adult. Miller did not deal with enhancements and the court found a difference between enhancing a juvenile offender to a life sentence and considering youthful offenses when sentencing an offender to life who continues criminal activity into adulthood.

The court also rejected the defendant's challenge to the reasonableness of the sentence. Though the district court stated that it had considered the §3553(a) factors, the district court was statutorily required to impose a life sentence regardless of the factors.

In U.S. v. Izuriet, the defendants owned a company that imported cheese, butter, and bread from Central America to the U.S. The Defendants were charged with conspiracy to unlawfully import adulterated foodstuff in violation of 18 U.S.C. § 371 and §545, with failure to export or destroy under FDA supervision five bad shipments and with failing to hold and make available one shipment for Customs examination. The Defendants appealed their conviction on a variety of grounds, but at oral argument the panel raised the question of whether the indictment sufficiently charged a federal crime of unlawful importation in violation of 18 U.S.C. § 545. The relevant language of §545 makes it a crime to fraudulently or knowingly import...into the United States, any merchandise....knowing the same to have been imported...into the United States contrary to law. The question raised by the court was what law did the indictment allege was violated such that it was contrary to law and therefor a violation of 18 U.S.C. §545. The charge was based on factual allegations that the defendants violated customs regulations by failing to "deliver, export, and destroy" certain imported goods found to be adulterated" as required by F.D.A. regulations. The Court found that the failure to comply with the regulation normally gives rise to a civil remedy for liquidated damages totaling three times the value of the goods.

The opinion discusses a split in the circuits regarding an interpretation of the language "contrary to law" in §545. The 9th Circuit narrowly interprets §545 to mean it can only criminalize a regulation where the regulation itself is a crime. The 4th Circuit has a more expansive interpretation of §545 and criminalizes any importation regulation that has "the force and effect of law." The 11th Circuit leaned in favor of the 4th Circuit's interpretation, which does not require the regulation to be a criminal offense, but the 11th Circuit had concerns about converting a statute that normally has civil remedies into a criminal law.

The regulations cover the conditions under which imported goods may be delivered out of Customs' custody pending admission as well as the procedures by which goods may be recalled and examined. Though the regulation was issued under a statute that lays out dozens of acts subject to criminal penalties, the statute does not specify a crime for the conduct here which was the simple failure to hold, redeliver, export, and/or destroy the food. The 11th Circuit found the regulation establishes a contractual obligation between Customs and the importers regarding temporary release and storage of the imported goods, along with an agreed-upon liquidated damages of three-times the value of the merchandise for non-compliance. The 11th Circuit viewed the regulation as strictly civil. The court found the Rule of Lenity was applicable because it found §545 to be "grievously ambiguous" with respect to the effect of criminalizing the regulation and the conduct here. The court vacated the substantive convictions because it found that §545 did not charge a crime, and the court vacated the conspiracy count because the unlawful acts charged as the object of the conspiracy are not criminal in nature. "The indictment was sufficiently unclear as to whether any crime was charged such that the average person could easily read [the conspiracy count] as actually charging only a conspiracy to commit non-criminal acts."

In U.S v. Davis the defendant was charged in a 16-count indictment with various offenses arising out seven armed robberies. During the jury selection one of the prospective jurors, a dance instructor, announced she had a problem serving because she was paid by the hour and would not be paid during the trial. Another prospective juror said her English was poor. Both were seated as jurors anyway. The 12 jurors were empaneled, but there were no venire members remaining to select as alternates, and the trial began without alternates. After the trial began, the defendant announced that he was dissatisfied with his court-appointed counsel and insisted on representing himself. The defendant also announced to the court that he wanted to go back to his cell for the remainder of the trial and turned down an offer that would have allowed him to monitor the proceedings from his cell. The trial continued under those conditions, with the defendant representing himself from his cell. When the trial court took an early lunch break to review the issue of the defendant's absence from the trial, the dance instructor approached the trial judge and persisted about the loss of income she faced and the affect this would have on her finances. The non-English speaker also approached and informed the trial court and informed the court that she did not understand everything. When the defendant was asked if he would agree to go with less than twelve he refused. Because the opening statements had been given, the trial judge decided he could not ask the clerk to send up more prospective jurors. The court found it necessary to dismiss the two jurors. The defendant advised the court that he did not agree to a jury trial of less than twelve jurors. The trial judge decided the only alternative was a mistrial. Defendant's standby counsel moved for to dismiss under Double Jeopardy because he argued there was no manifest necessity. The district court denied the motion and the defendant took an interlocutory appeal.

The issue in this appeal was whether a retrial was prohibited under the Fifth Amendment of the U.S. constitution. The "Double Jeapardy Clause" states that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." Jeopardy attaches when the jury is empaneled and sworn and subject to limited exceptions is entitled to have his case decided by that jury. One of those exceptions applies when the mistrial was caused by "manifest necessity," which means "the ends of public justice would otherwise have been defeated by continuing the trial."

The 11th Circuit found no Double Jeopardy violation caused by the trial court declaring a mistrial. Rule 23(b) required a jury be composed of 12 persons and proceeding with less than 12 requires stipulation by the parties. The defendant objected to proceeding with a jury of less than 12. The court found that dismissal of the juror with poor understanding of English was manifest necessity. While she showed sufficient language proficiency during voir dire, she brought her language difficulty to the trial court's attention after the trial started. Under those circumstances dismissing her as a juror became a matter of manifest necessity. Davis's position was against a jury of less than 12 and his position was for a trial with the original 12. Because that was impossible due to the language difficulty of the juror, the mistrial was the only alternative.

Please read my previous entry to the criminal defense lawyer blog. This one, March 17, 2013, is about theft.