White Collar Criminal Defense Lawyer Blog

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.

The defendant in U.S. v. Darden was charged with obstructing commerce by robbery and brandishing a firearm in connection with two robberies. In the first underlying incident, an armed robbery of a Tampa, Florida convenience store, the gunman fled without apprehension. In the second incident Darden was shot by the pursuing store clerk. In the second incident Darden was apprehended and admitted to the robbery. Charged with both robberies, Darden went to trial placing the defense counsel in the position of having to vigorously defend against both robbery charges or concede guilt as the second robbery to save credibility in defending Darden against the first robbery. Apparently without consulting Darden, his counsel chose the latter. At trial, Darden's attorney conceded the evidence was enough to convict of the second robbery, but not enough for a guilty verdict on the first robbery. The attorney argued that by charging Darden with both robberies, the government was trying to "buy a verdict and get one free."

After his convictions were affirmed on appeal, Darden brought a 2255 collateral challenge claiming ineffective assistance of counsel arguing that under the Supreme Court's decision in U.S. v. Cronic, the decision to concede guilt on one of the two charges without consulting his client was presumptively prejudicial. In Cronic the Supreme Court held that if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," prejudice is presumed, making unnecessary the 2-step analysis in Strickland v. Washington, which requires that the defendant show 1) deficient performance by counsel and 2) the deficiency caused substantial prejudice to the case.

The issue facing the 11th Circuit was to determine whether the defense counsel failed entirely to subject the government's case to meaningful adversarial testing. In other words, whether to analyze Darden's ineffective assistance claim under Strickland or under Cronic. The 11th Circuit held that Cronic did not apply and Darden would have to show he suffered substantial prejudice by his counsel's failure to consult with him about the trial strategy.

The defense mounted a viable defense by strategically conceded guilt on one charge in order to order to more credibly advance the defendant's case the other count. Though this issue had yet been addressed in the 11th Circuit, other circuits have found that conceding guilt is a viable tactic in order to lead the jury towards leniency on the charges and to argue later for a lighter sentence. The court found that Cronic applies only where defense counsel "entirely fails" to subject the case to "meaningful adversarial testing." The district court had found no prejudice, even if there was deficient performance by not consulting with Darden, in view of the overwhelming evidence of Darden's participation in the second robbery. The result for Darden would have been the same even without defense counsel's concession of the second robbery.

In U.S. v. Gibson, the defendants were convicted of conspiracy to possess with intent to distribute cocaine and cocaine base and with possession with intent to distribute cocaine and cocaine base. Defendant Burton was charged with a the federals crime when cocaine was found in the pickup truck he was driving. Federal Agents suspected that codefendant Gibson, who was a frequent driver of Burton's truck, had been using it for drug trafficking. The agents saw Gibson driving the truck and saw it parked in front of Gibson's. Burton was the registered owner, however. While the truck was parked in front of Gibson's house, the agents installed a tracking device on the undercarriage of the truck without a warrant. They tracked its movement for the next month. At one point, while it was moving between Tallahassee and Ocala, the agents grew suspicious that it was carrying drugs and they had a sheriff deputy make a traffic stop. Burton was driving, and he was arrested when two kilograms of cocaine were found following a consensual search. Burton filed a motion to suppress the evidence based on the warrantless installation of the tracking devise. The federal trial court found no Fourth Amendment violation. Gibson later filed a motion to suppress evidence based on the warrantless installation of the tracking device and a motion for reconsideration. He did not originally file the motion to suppress because he did not then know any facts upon which he would have standing to object to the placement of the tracking device or the stop of the vehicle. He alleged that the agent's testimony that the truck was in his possession when the tracking device was installed and that Gibson was seen driving the vehicle on several occasions, gave him standing to contest the installation of the device on the truck. The district court ruled Gibson had no standing to contest the installation of the device and that he had no standing to object to the stop.

After the conviction, the U.S. Supreme Court decided U.S. v. Jones in 2012 which held that the installation of a GPS tracking device on a target's vehicle and its use to monitor the vehicle's movement constitutes a search. In light of the Jones decision, Gibson argued all evidence obtained from the tracking device on the truck should be suppressed because the installation and use of the device constituted a search without a warrant. He maintained he had standing to challenge the search based on an expectation of privacy in the truck because he had possession and control of the truck when the tracking device was installed. The 11th Circuit found that because Gibson paid the insurance and maintenance and he often used the car with Burton's consent, he had a legitimate expectation of privacy in the vehicle and standing to challenge the installation of the tracking device while the vehicle was in his possession, but he had no standing to challenge the use of the tracking device to locate the truck when it was moving on public roads and he was neither the driver or the passenger. Because he had no possessory interest when it was stopped, he lacked standing.

No double jeopardy where a prior conspiracy conviction overlaps

The codefendant raised a double jeopardy argument because he argued that a 2004 drug conspiracy conviction was part of the same time frame and overlapped the conspiracy that he was charged with committing in this case. He was sent to jail following his conviction and the evidence showed he rejoined the conspiracy. The 11th Circuit found no double jeopardy violation even though the defendant was arrested in between the two conspiracies. The court rejected the defendant's contention that the conspirator must first withdraw and then rejoin before his renewed participation can constitute a new crime for double jeopardy purposes. Otherwise a conspirator, once tried for participation in a conspiracy, could renew his participation in the conspiracy for the rest of his life so long as he never affirmatively withdraws. At trial the judge instructed the jury that it could only find him guilty if it found he committed alleged acts after 2004, and this assured no double jeopardy for the same conduct.

After a brief hiatus, please find this Miami's defense attorney's latest entry, summarizing a recent opinion from the 11th Judicial Circuit. The opinion touches on topics and practice areas relevant to the Swartz Law Firm's scope of expertise, including sex offenses and internet crimes.

In U.S. v. Slaughter the defendant appealed his conviction for use of the internet to entice a minor to engage in sexual activity (18 U.S.C. §2422(b) and committing a felony involving a minor while being required to register as a sex offender (18 U.S.C. §2260A). Registered as a sex offender, he went on Craig's list and responded to a post by a 14 year-old girl named Hanna seeking someone to buy alcohol for her and some friends. Hanna turned out to be an FBI agent. After a flurry of emails Slaughter began expressing an interest in a sexual encounter with the two girls and suggested they rent a hotel room. Knowing they were underage, he made plans to meet them at a specific hotel. On the arranged date, agents arrived at the hotel room and without an arrest warrant or a search warrant, they entered his room, tackled him, and told him they intended to search his room and car. Later, he was taken to the county sheriff's office where he was read his rights pursuant to Miranda. He signed a waiver and admitted to trying to entice the girls to meet him at the hotel room by his emails.

Slaughter moved to suppress post-arrest statements made at the sheriff's office following the warrantless entry into his hotel room. The 11th Circuit found the statements to be admissible even though the police had previously entered his hotel room illegally and arrested him. Additionally, the 11th Circuit found the facts similar to the Supreme Court decision in U.S. v. Harris where police illegally entered a defendant's home and arrested him on probable cause he committed a murder and later at the police station he waived Miranda and gave a statement. The Supreme Court found the exclusionary rule does not apply to the statements. Here the police had probable cause to arrest Slaughter, his Miranda rights were read and he voluntarily gave his statement under these circumstances, though the earlier pre-Miranda statement was suppressed the post Miranda statement was not subject to the exclusionary rule.

Slaughter challenged his §2260A conviction arguing the statute requires that an "actual minor" must be the target of the offense in order to support a conviction. Section 2260A, which carries an additional 10 years in prison, makes it an offense for an individual required to register as a sex offender to commit certain enumerated offenses, including the enticement of a minor under §2244. Alternatively, the defendant argued the statute was ambiguous as to whether an actual minor must be involved in the offense so the rule of lenity should apply. The 11th Circuit the §2260A conviction was predicated on his attempted enticement of a minor under §2422, which expressly contains an attempt clause. The court found it was unnecessary to decide the question of whether the statute required that an actual minor must be involved. The court interpreted the statute as intending to criminalize enticement and the attempted enticement of a minor and when it is committed by a registered sex offender. A violation of §2422 does not require and actual minor because of his attempt clause.

Please read my previous post from February 10, 2013:
Amendment restricting a sentence reduction under revised sentencing guidelines does not violate Ex Post Facto Clause

In U.S. v. Colon, the defendant, Christina Colon, pleaded guilty to the federal crime of distribution of crack cocaine and possession of a firearm in furtherance of a drug trafficking offense. The Pre-sentence Report calculated her range at 46- 57 months and the district court varied down to 36 months. Pursuant to the firearm count the court imposed a mandatory minimum term of 5 years to run consecutively to the drug count, for a total of 96 months. Following the sentence, the Sentencing Commission issued Amendment 706, which reduced the base offense levels for crack cocaine offense. Colon filed a motion pursuant to 18 U.S.C. § 3582 to reduce her sentence. The district court found she was eligible and reduced her sentence under the drug count from 36 to 27 months leaving her with a total sentence of 87 months. Colon filed a second motion to reduce her sentence after enactment of the Fair Sentencing Act and the subsequent guidelines amendments. Amendment 750 issued by the Sentencing Commission, retroactively reduced the base offense levels for crack cocaine offenses. The Commission also issued Amendment 759 which restricted a district court's discretion to make the reduction below the minimum of the amended guideline range, unless the original sentence imposed had been below the guideline range because of a reduction based on the defendant's substantial assistance.

Under the new amendments the range, Colon's range would be 30 to 37 months. The district court did not reduce her sentence because her current sentence was 27 months and below the new guideline range. The district court found the new amendment prevented the court from reducing the range because the original variance was not based on substantial assistance.

Colon claims the district court erred in applying Amendment 759 because the Sentencing Commission's amendment of that policy statement exceeded its authority under the Sentencing Reform Act. The 11th Circuit rejected Colon's challenge that Amendment 759 violated the ex-post Facto Clause. The court found the Amendment did not increase the punishment assigned by law when the act to be punished occurred. Colon's guideline range after those amendments was the same as it would have been without them.

Colon also challenged the district court's application of Amendment 759 because she argued the Sentencing Commission's amendment exceeded its authority under the Sentencing Reform Act, 28 U.S.C. 994. This statute states that if the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." Two other circuits have found that the Sentencing Commission did not exceed its authority under section 994 in prohibiting reductions below a prisoners amended guideline range. The Court found the language of the Sentencing Reform Act section 994, authorizes the Commission to determine "in what circumstances and by what amount the sentences of prisoners may be reduced based on retroactive amendments."

Find the previous entry to my Miami criminal defense lawyer blog below:

Though it seems obvious, the 11th Circuit decided that a conviction for firing a gun in the direction of a helicopter was a crime of violence

In U.S. v. McGuire, the defendant challenged the sufficiency of the evidence to support his conviction of attempting to damage, destroy, disable, set fire to, or wreck an aircraft in the special aircraft jurisdiction of the United States in violation of 18 U.S. C. §32(a)(1). After McGuire shot of several rounds of a gun near his driveway, neighbors called police, who responded with officers on the ground and a police helicopter. As the helicopter shined its spotlight in McGuire's direction, McGuire raised his arm and fired one round in the sky. A deputy saw him fire in the direction of the spotlight as the helicopter orbited and another witness said he fired in the general direction of the helicopter. McGuire said he went outside to fire into the sky randomly without meaning to hit the helicopter and not knowing it was in the sky, but witnesses contradicted his testimony by attesting to the noise and vibrant light the helicopter produced. McGuire argued the the deputy's testimony was inherently incredible and that a reasonable person would believe it beyond a reasonable doubt because McGuire stood still without moving to follow the helicopter's path or tacking it as he fired. The 11th Circuit found McGuire's argument is simply disputing the inference a jury can draw from the evidence, and the inferences have to be drawn in favor of the jury verdict.

The 11th Circuit also upheld district court's finding that the offense of attempting to damage destroy, disable, or wreck an aircraft is a crime of violence for the purpose of 18 U.S.C. 924(c)(1)(A), which imposes a consecutive sentence for anyone using a firearm in connection with a crime with a crime of violence. The court used the "categorical approach" because § 924 defines a criminal offense as "an offense" that "has as an element the use, attempted use or threatened use of physical force against the person or property of another" or "by its nature, involves a substantial risk that physical force against the person or property of another may be used." The categorical approach must reference the elements of the offense and not the actual facts of McGuire's conduct, and for this reason, even though firing a gun at a helicopter is unmistakably violent, the categorical approach requires the court to determine whether the crime, in general, plausibly covers any non-violent conduct. "Only if the plausible applications of the statute of conviction all require the use or threatened use of force can McGuire be held guilty of a crime of violence."

The 11th circuit found that a federal jurisdictional element of the statute requires that the aircraft be "in flight" which is defined as encompassing the time the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave." In other words the conviction was for attempting to damage or disable an aircraft that was either flying or ready to take off or arriving at its destination. In that context the offense was offense necessarily involved the attempted or threatened destruction of sensitive property or lives and was a crime of violence.

In case you missed it, please find my previous entry to my Miami criminal defense lawyer blog below:

Conviction for misapplying federal funds reversed, January 26, 2013

Jimenez was convicted of violating 18 U.S.C. § 666 for misapplying funds from a federally funded program. He challenged the factual sufficiency of his conviction to the 11th Circuit arguing that he did not misapply funds within the meaning of 666(a)(1)(A). The 11th Circuit found in United States v. Jimenez that no federal crime took place and reversed the conviction with directions to enter a judgment of acquittal. Because the facts are important in a judgment of acquittal, the background is set out here.

Jimenez was Deputy Director of Fiscal and Administrative Services for Hillsborough County's Head Start Program, a federally funded program that provides educational and health care to preschool children from low-income families. Jimenez's wife Melendez, a microbiologist, wrote a children's book intended to educate children "about germs and their relationship to disease" She sent her husband, Jimenez, an email suggesting that Head Start could use to the book to "encourage kids to read." Jimenez relayed the information to his peer at Head Start, Mason, who served as the Deputy Director of Program services. Mason knew that Jimenez's wife authored the book. Jimenez and Mason brought a copy of the book to Bell, a registered nurse with Head Start and asked Bell to look at the book for her opinion on whether to order copies of the book for the Head Start children. Bell nixed the idea because she thought the book was too advanced. Bell showed the book to Navejar, another official at Head Start, who recommended against purchasing the book because it implicated a conflict of interest for Jimenez's wife to profit from a head Start transaction. Bell and Navejar brought this concern to the attention of Knight, Bell's supervisor. Despite Bell and Navijar's concerns, Mason, who supervised Knight, told Bell to order the book. Because Bell did not have purchasing privileges, she referred the task to Navejar. Soon after, Jimenez e-mailed Navejar price quotes on the book. Mason initiated and approved a $9,000 order for 750 copies of the book. Melendez delivered the books, a report authorizing payment to Melendez was issued, and Jimenez signed a form acknowledging the books had been received. Shortly afterwards a check was issued to Melendez. Throughout this period, Head Start required every employee to complete disclosure forms within 45 days of any change in the conflict of interest status, including circumstances in which an employee's spouse entered into a contractual relationship with Head Start. Jimenez failed to file a disclosure the conflict of interest stemming from his wife's transaction with Head Start.

Jimenez was indicted and convicted of misapplying funds from a federal program and honest services fraud. The judge entered a judgment of acquittal for the honest services count but upheld the § 666(a) conviction. A conviction under § 666(a) requires the prosecution to show (1) Jimenez was an agent of Head Start, (2) he obtained funds by fraud or intentionally misapplied property of Head Start property in excess of 5,000, and (3) Head Start received federal assistance. The prosecution's theory was that Jimenez "intentionally misapplied" $9,000 in Head Start funds by brokering 750 copies of his wife's book. The court found the term "misapply" connotes the offender exercises some degree of power over the funds of the agency. There was no evidence demonstrating that Jimenez misapplied any Head Start funds. Even though there may have been an conflict of interest, standing alone without evidence of bribe or kickback is insufficient to sustain a conviction for intentionally misapplying funds for a violation of §666. The evidence showed it was Mason, not Jimenez, who approved purchase and directed the Head Start funds for payment of the book. Though Jimenez did not disclose his wife's financial stake in the transaction, the 11th Circuit is "reluctant to metamorphose every municipal misstep into a federal crime" and the court would not stretch the language of §666 to find a white collar crime here.

In case you missed it, please read my previous post:
An individual becomes a guidelines "victim" of an unlawful transfer of identification information when the information is used, January 19, 2013

The issue here is whether the unauthorized transfer of an individual's identifying information to another party involves the actual use of that information for a fraudulent purpose such that the individual whose identifying information was transferred is as victim under U.S.S.G 2B1.1(b)(2)(B). This sentencing guideline provides for a 4 level enhancement if the offense involved at least 50 but less than 250 victims. The defendant in U.S. v. Hall pleaded guilty to bank fraud conspiracy, identity theft and access device fraud and wrongfully obtaining and transferring individually identifiable health information for personal gain. The district court applied a four level enhancement because the offense involved more than 50 but less than 250 victims. Hall challenged the enhancement arguing that the unlawful transfer or sale of identifying information does not equate to the actual use of identifying information for a fraudulent purpose. The conspirators actually used 12 of the 141 individuals to obtain fraudulent credit cards the so Hall claimed there were less than 50 victims and the 11th Circuit agreed.

Hall worked as an office assistant in a Coral Springs doctor's office where she had access to patients' dates of birth, social security numbers and other protected information. She received $200 for each individual's information she provided to the coconspirators. She received only $200 though sent the codefendants 65 to 141. Her conspirators used 12 of the patients' personal information to obtain fraudulent credit cards. The government's position was that all 141 patients whose information was transferred were victims.

The 11th Circuit found that while the 12 individuals were victims, the remaining individuals whose information was merely transferred were not victims under the Application notes which define victims as "any person who sustained any part of an actual loss...who sustained bodily injury as a result of the offense." Under this enhancement, whether an individual was a victim depends on whether their identification was used. The conspiracy's purpose was to obtain cash advances and purchase using fraudulent credit cards. Hall's mere transfer of the personal identifying information, without more action, did not involve using the information to procure fraudulent credit cards and cash and the personal information was not used until the coconspirators secured the credit cards.

The 11th Circuit noted that another specific offense characteristic under §2B1.1 provides for a two level enhancement for the defendant because the offense involved "the unauthorized transfer or use of any means of the identification unlawfully to produce or obtain any other means of identification." The district court applied this enhancement. The 11th Circuit found that the Commission's use the terms "use" and "transfer" in the guidelines means it intended for each term to have a particular, non-superfluous meaning. The court reasoned that the Sentencing Commission would not have used the two distinct words if they intended "use" to cover "transfer." The court would not broaden the meaning of use. The guideline and the application notes indicate that the mere transfer of unauthorized identifying information is not the equivalent to the actual use of the identifying information for a fraudulent purpose.

In case you missed, please read my previous post:
Defendent sentenced even after indictment was withdrawn, January 10, 2013

First, you need the background facts of McIntosh's first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh's sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh's second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

McIntosh argued that without a valid indictment, district court has no jurisdiction. The 11th Circuit held that a defective indictment did not deprive the district court of jurisdiction as long as the indictment properly alleged an offense against the United States. The district court only lacks jurisdiction if the indictment failed to charge a federal offense. McIntosh was charged and pleaded guilty to a valid indictment that alleged an offense against the United States, thereby invoking the district court's jurisdiction. "The indictment's relationship to jurisdiction is thus based on whether it alleges conduct constituting a federal offense, not on some intrinsic value of an indictment as such."

McIntosh also argued that the district court's sentencing order violated the Fifth Amendment Grand Jury Clause because the order held him "to answer" for an felony without an outstanding indictment. The 11th Circuit rejected this argument holding that the term "held to answer" in the Grand Jury Clause did not include the sentencing phase of a criminal case and only applied to the pre conviction phase.

Other arguments the 11th Circuit rejected: