Published on:

In United States v. Cubero the Defendant appealed from his 151 month sentence and life-term of supervised release after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B).   For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.

He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.

Continue reading

Published on:

In the Iguaran appeal, the defendant pled guilty to one count of conspiring to distribute cocaine while on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act 46 U.S.C. section 70503(a)(1). On appeal, the defendant challenged the district court’s jurisdiction arguing that the court did not have subject matter jurisdiction because the record does not establish that the vessel in which he was apprehended was subject to the jurisdiction of the United States. The government argued in opposition that the case had to be reviewed by appellate court for plain error because Iguaran did not raise his jurisdictional objection in the district court. The appellate court rejected the argument finding that the district court’s subject matter jurisdiction is a question of law that must be reviewed de novo even when it is raised for the first time on appeal.

To be convicted of conspiracy to distribute a controlled substance under this statutes the government must show that vessel was when apprehended subject to the jurisdiction of the United States. Various circumstances render a vessel subject to the jurisdiction of the United States, including a vessel without nationality. This includes a vessel in which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for the vessel. If Iguaran and his coconspirators failed to make a claim of nationality, their vessel was without nationality and subject to the jurisdiction of the United States.

Continue reading

Published on:

Appellants in the Pierre opinion appealed their federal criminal convictions and sentences for conspiracy to defraud the Internal Revenue Service, conspiracy to traffic in unauthorized access devises, aggravated identity theft and other substantive counts of identity theft following a jury trial.   The scheme in this case involved filing fraudulent income tax returns. The Defendants filed tax returns in the names of Florida prison inmates. The tax refunds were paid to the TaxProfessors’ debit cards that were used at automatic teller machines to obtain cash.

The scheme unraveled after an officer spotted a Cadillac with dark tinted windows and could not see inside the vehicle. He also noticed a temporary tag on the vehicle that was registered to the Defendant whose family owned a body shop that authorities suspected fraudulently issued temporary vehicle tags. The officer made a traffic stop because the he believed the tinting on the windows was below the standards permitted by Florida law.   After receiving consent to search the inside of the car the officer found prepaid debit cards issued by a business that was called TaxProfessor. The investigation into the debit cards led to a search warrant for the home of a defendant who was connected to TaxProfessor.   The Defendants also approached an employee of the Florida Department of Children and Family Services as a child protective investigator who had access to personal identifying information through a state database. The Defendant paid the DCF employee for a printout from the website which contained a list of inmates and SSN’s for 25 names on the list. Tax returns were filed using the inmates’ information and the tax refunds were loaded onto these debit cards for TaxProfessors accounts.

Continue reading

Published on:

After serving his 195 month federal sentence for possession of a firearm Defendant Parks went on federal supervised release. Fifteen months later Parks was arrested by state authorities for burglary and grand theft. Parks plead guilty to the state court charges and was sentenced to 455 days, with credit for time served. On the day of his sentencing he was taken into federal custody and charged with a violation of his federal supervised release based on the facts of his state court charges.  When he went before the federal judge for his violation hearing he admitted having committed the violation because he had just pleaded guilty in state court. The federal judge then sentenced him to 60 months incarceration, though his sentencing guidelines were 21-27 months. The sentencing judge did not announce how he arrived at that sentence and did not mention the 18 U.S.C. §3553(a) factors.

Parks appeals the sentence on the grounds that the trial court failed to consider or even acknowledge the statutory factors under 18 U.S.C. §3553(a). Furthermore, he argued the trial court failed to give a specific reason for his upward departure guideline sentence as required by 18 U.S.C. §3553(c)(2). Under §3553(c) the court is required to state in open court the reasons for its imposition of the particular sentence. If the sentence is outside the applicable guideline range the court must give the specific reasons for the imposition of that sentence.

Continue reading

Published on:

In this Civil Rights claim Carter along with two other plaintiffs sued the Butts County, Georgia Sheriff office and a deputy sheriff for false arrest, claiming the Sheriff violated the Plaintiffs’ Fourth Amendment right to be free from unreasonable search and seizures.

These are the facts leading to the Plaintiffs’ arrest. When the deputy’s home had fallen into foreclosure, the mortgage holder advised the deputy that the home would sold in a foreclosure sale. After the deputy moved out of the property, the property was turned over to a maintenance company to prepare the property for resale. The deputy was given notice, and the authorized representatives of the entity handling the sale, the plaintiffs, had entered the house to clean and prepare for the sale. The deputy arrived at the house and ordered the plaintiffs to leave. The plaintiffs tried to show him credentials and documentation of the eviction. The deputy contacted the court clerk and learned there was no eviction proceeding against him. He ordered their arrest for burglary, criminal trespass, and theft, and all three went to jail.

The trial court denied defendant deputy’s motion for summary judgment in which he argued for qualified immunity protection against the claim against him and it denied the sheriff’s summary judgment motion on the conversion claim. As to the remaining claims the trial court granted summary judgment.   The Defendants appealed from the trial court’s rulings.

Continue reading

Published on:

In United States v Holmes the defendant appealed his conviction for production of child pornography and possession of child pornography in violation of 18 U.S.C. 2251(a) and 2252(a) (4)(B). Holmes was charged with surreptitiously videotaping his teenage stepdaughter performing her daily bathroom routine over a period of approximately five months and of being in possession of the videos and images of her in the nude. Holmes had installed concealed cameras in the stepdaughter’s bathroom and in the videos discovered on his computer the girl is seen completely naked. Plainly visible in those videos was her nude pubic area. Holmes also created a twenty-six screen captures from certain sections of the videos depicting close-up views of her pubic area. After trial, Holmes was found guilty and he appealed.
Under the statutes a defendant commits the crime of production of child pornography when he uses, persuades, entices or coerces a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. The crime of possession of child pornography involves the knowing possession of a visual depiction that involves a minor engaging in sexually explicit conduct. The pornography statutory definition of sexually explicit conduct that applies here is the “lascivious exhibition of the genitals or pubic area of any person.”

Continue reading

Published on:

In this appeal Jimenez-Antunez appealed the district court’s denial of his motion to fire his retained counsel and his request for court appointed counsel. Jimenez was a drug dealer with connections to a Mexican supplier who had couriers deliver drugs to Jimenez and then directed Jimenez to deposit drug sales into various bank accounts. Jimenez was arrested and charged with conspiracy to distribute methamphetamine and conspiracy to commit money laundering. A private attorney filed a notice of appearance as his counsel and he worked out a plea agreement with the government to plead guilty to the two conspiracy charges. Three months before sentencing hearing Jimenez sent his attorney a letter asking him to withdraw from the case and telling him he wanted the judge to appoint another lawyer. The attorney then moves to withdraw as the defense attorney. Prior to sentencing the judge held a hearing on the motion to withdraw and heard that that the client felt the attorney had coerced him into pleading guilty, that the attorney did not let him speak or explain certain matters, that the attorney threatened him by telling him he would be sentenced to 30 years if he did not plead guilty. He also said the attorney did not visit him in six months. The district court refused Jimenez’s request for new counsel concluding that Jimenez had been afforded effective counsel. It found no evidence that the attorney actually coerced Jimenez to plead guilty nor did credit Jimenez’s claim that the attorney had not visited him in six months. The district court believed that Jimenez’s real gripe was his disappointment with the sentencing guideline range in the presentence investigation report. Continue reading

Published on:

 

In United States v. Croteau, the defendant challenged the sufficiency of the evidence for his ten-count criminal conviction in federal court for making false and fictitious claims on this tax returns and for the reasonableness of his 56 month federal sentence. Croteau was a tax protester who filed false returns for three consecutive years claiming that he was entitled to refunds totaling $400,000 and to substantiate his return he submitted false 1099-OID forms reporting that financial institutions had issued interest income to Croteau and withheld the interest for federal tax purposes. Croteau’s tax returns sought refunds of the money withheld. None of the financial entities listed on Croteau’s 1099-OID forms had issued any interest income or any income to Croteau. Despite communication from the I.R.S. notifying him that he had provided the I.R.S. with frivolous tax information, Croteau repeatedly submitted amended tax returns for the same years containing fictitious and fraudulent 1099-OID information.   To make matters worse, Croteau also recorded several false and fictitious liens and documents in the Lee County Clerks’ office asserting that the IRS owed him hundreds of millions of dollars.   At his trial he did not contest that he had in fact filed false and fictitious tax returns and other financial documents. He raised a good-faith defense, claiming he had an honest belief that what he was doing was correct.

Continue reading

Published on:

In US v. Damion St. Patrick Baston (“Baston”), the Defendant worked as a pimp and forced various women to work as prostitutes in Florida and around the world while keeping the money they earned As a result he was indicted for violating 18 U.S.C. 1593 and charged in Miami federal court for sex trafficking by force, fraud, or coercion in Florida and in the countries of Australia and United Arab Emirates. He was also charged with several counts of money laundering in violation of 18 U.S.C. 1956 based his having wired the sex-trafficking proceeds from Australian to Miami.

At his trial the government called three prostitutes that worked for him as witnesses who testified how they met Baston and how he used violence and coercion to force them into prostitution. His defense what that he never coerced the woman into prostitution and they were already prostitute when they met. He said they did it freely and voluntarily and in Australia prostitution is legal trade from which they could make money.
Continue reading

Published on:

In USA v. Thomas the Defendant was convicted of knowingly accessing with intent to view child pornography in violation of 18 U.S.C. 2252(a)(4)(B). Prior to his federal court trial he filed a motion to suppress the incriminating images of child pornography that were seized from his desktop computer at his home in violation of the Fourth Amendment. He appealed the trial court’s denial of the motion to suppress asking the Eleventh circuit court of appeals to overturn the trial court’s decision.

These are the facts of the seizure. A police officer arrived at Thomas’s home in response to a telephone report from Thomas’s wife that there was child pornography on a computer within the home. The officer was greeted by Thomas’s wife who told the officer that she found eight to ten child pornography websites on a computer in their shared home. The wife described what appeared to be minors engaged in sexual conduct with an adult. The wife told the officer that the defendant was home but sleeping and did not give consent to view the computers, but the wife said they both use the computer though Thomas used the computers more often, and the wife gave permission to search all the electronic equipment. Other officers arrived while Thomas still slept and approached the computer screen where they saw in plain view web sites “pictures of young girls that had only their underwear on” though not engaged in any sexual activity. The officers learned from the wife that she had seen nude photos of 4 – 13 year old children in sex poses and being sexually abused but the wife mistakenly closed the web pages before the police arrived. The officer started to conduct a forensic search/scan of the hard drive of the computer and began a forensic search.
Continue reading