White Collar Criminal Defense Lawyer Blog

The Defendant in U.S. v Ignasiak was a medical doctor convicted of dispensing controlled substances in violation of the Controlled Substances Act and for committing health care fraud. The prosecution's theory was that Ignasiak prescribed unnecessary or excessive quantities of controlled substances (pain killers) without a legitimate medical purpose and outside the usual course of professional practice. Ignasiak ran a busy medical practice out of a medical clinic as the only medical doctor in a rural Florida panhandle town, seeing up to 32 patients each day. Evidence showed he was always available for people who became sick and needed to see a doctor right away. Most patients came in to renew their prescriptions, but he always interviewed and examined his patients before they got a prescription.

At some point his practice drew the attention of the federal Agency for Health Care Administration due to concerns that as a family practice doctor he was billing for higher than normal levels of service. The auditor reviewed 30 of the Defendant's patients' charts that he selected out of more than 3,700 patients and found the charts did not justify the charges he was submitting to Medicaid. He concluded that Ignasiak had a practice of prescribing certain narcotic pain-killers in significant quantities. A doctor who took over the practice found patient files appeared to show Ignasiak had been operating a pain management clinic rather than a family practice. Patients who wanted the new doctor to write pain medication became angry when he did not. The government presented testimony from individuals who worked in his office to support the government's theory the Ignasiak's practice was to mainly prescribe pain killers for patients that were not really sick. The government also presented patients and patient's family members to further support this theory by testifying about how these patients became addicted.

Seven of Ignasiak's patients died from what the autopsy reports concluded were pharmaceutical drug overdoses. The government called as a witness the medical examiner who conducted two of these autopsy reports. The district court allowed this medical examiner to testify about the five autopsies conducted by the non-testifying medical examiners, which included the conclusions that the cause of death was accidental drug overdose for each patient. The testifying medical examiner said she agreed with these conclusions.

Ignasiak raised a number of issues but the 11th Circuit focused on the sufficiency of the evidence and the introduction of the autopsy reports in violation of the Confrontation Clause. The 11th Circuit concluded that the evidence when viewed in a light most favorable to the government was sufficient was sufficient to support the conviction. Based on the evidence, along with the government expert's testimony, "we cannot say the jury could not have found the defendant guilty under any reasonable construction of the evidence."

But the 11th Circuit reversed because the admission of the autopsy reports of five former patients, through the medical examiner who did not prepare the reports, was a violation of the Confrontation Clause. All of these reports admitted in evidence concluded the cause of death to be intoxication from controlled substances and the testifying doctor was allowed to testify as to this aspect of the reports.

The 11th Circuit rejected the government's argument that the autopsy reports were admitted as business records. The court determined that the autopsy reports are testimonial evidence and must be subject to the requirements of the Confrontation Clause. Relying on the following Supreme Court decisions: Crawford v. Washington, (prosecution may not introduce testimonial hearsay against the defendant), Melendez-Diaz v. Massachusetts (a laboratory report stating an unknown substance was cocaine was testimonial evidence), and Bullcoming v. New Mexico, (6th Amendment requires the government to present the witness that prepared the testimonial forensic report.)

The 11th Circuit found that Ignasiak's 6th Amendment rights were violated because the autopsy reports were testimonial, they could not be offered and discussed by the medical examiner that did not prepare them. The Court further decided that based on the evidence presented the admission of the five autopsy reports did contribute to the guilty verdict because the government presented an overarching theory of prosecution that Ignasiak has prescribed unnecessary or excessive quantities of controlled substances without legitimate medical purpose and outside the usual course of professional practice. Moreover, the 11th Circuit found the evidence was not overwhelming. Though the evidence was sufficient for a guilty verdict, "we must be less tolerant of the idea that errors committed during the trial of this case are acceptable because they are harmless."

In U.S. v. Vadnais, the 11th Circuit found that a file sharing program does not support a five level sentencing guidelines enhancement and reversed the sentencing. Another panel reached the same conclusion in U.S. v. Spriggs three days earlier involving the software Shareaza 2.0. Vadnais' 240 months sentence for receiving child pornography included a guidelines enhancement under sentencing guidelines §2G2.2(b)(3)(B), which provides for the enhancement if the offense involves a distribution of child pornography "for the receipt, or expectation of receipt, of a thing of value." Vadnais obtained his illicit images over the internet by using LimeWire, a peer-to-peer file sharing software.

Analyzing the sentencing guideline issue, the 11th Circuit noted the commentary defines the 5 level enhancement of 2G2.2(b)(3)(B) as 'any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit." A "thing of value" can include the receiving child pornography "bartered" or in exchange for other child pornography. On this basis, the five level enhancement could apply to a defendant engaging in this activity. Vadnais argued that using the peer-to-peer file sharing software in a way that allowed others to obtain child pornography files from his shared folder did not support the enhancement.

The opinion spends time analyzing how peer to peer software works. The software networks are so named because they allow computers to communicate directly with each other without going through central servers. The software permits users to search for files located in the shared folders on other computers. When found, the requesting user can download the file directly from the other computer. The 11th Circuit found that the LimeWire software encourages users to share files. Its default settings make all files that a user downloads through LimeWire available to other LimeWire users to download.

The 11th found that that simply using a peer to peer program is not itself sufficient to trigger the five level enhancement. The five level enhancement requires some evidence, direct or circumstantial, that at defendant reasonably believed he would receive something of value by making his child pornography available for distribution on a peer to peer network. There must be as showing of a connection between the defendant's distribution and his receipt or expectation of receipt. The government argued that the fact Vadnais did not turn off the file-sharing feature - making his files available to others - showed that Vadnais did expect to receive additional child pornography. In other words expecting more child pornography through file sharing was a thing of value. The court did not buy in. LimeWire users can share file but are not obligated to do so in order to receive or download files from other users. At best, the evidence shows that Vadnais made his files available to other users by turning off his default system to prevent users from obtaining his files. Vaidnais could have obtained files from others without having to share any of his files.

In U.S v. Spriggs, Spriggs pled guilty to receipt of child pornography and sentenced to a five level enhancement for distribution of the illegal images for the receiving or expecting to receive something of value under USSG §2G2.2(b)(3)(B). Spriggs kept his child pornography collection in a peer to peer file sharing program called Shareaza 2.0. that could be accessed by other Shareaza users. Spriggs also downloaded the child pornography using the Shareaza program. The default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required extra steps if a user did not want to share files with others using the program. The copy on Sprigg's computer was rigged to allow peers to download files from his computer. The sentencing judge reasoned that Spriggs distributed the child pornography with the expectation that he would receive either more child pornography or could down load it faster. Law enforcement tried but was unsuccessful in its attempt to download the defendant's files. There was no evidence showing that other users downloaded files from Spriggs child porn collection.
The 11th Circuit found that Spriggs' distribution of child pornography is not enough to apply the 5 level enhancement under USSG §2G2.2(b)(3)(B). The distribution must be for the receipt or expectation of receipt of a thing of value. Though the 8th Circuit has applied the enhancement when using the file sharing network to distribute and access child pornography files, the 11th Circuit disagrees with that result. File sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares files. Files are free. The mere use of a program that enables free access to files does not, by itself, establish a transaction that will support a five-level enhancement.

The 11th Circuit refused to follow an 8th Circuit's decision finding that file sharing programs gave the defendant and expectation of value. Spriggs' hope that a peer would reciprocate his generosity does not amount to a transaction conducted for "valuable consideration." There was no evidence that Spriggs entered into a transaction with another user in which he shared his child pornography to gain access to another person's child pornography. Without evidence that Spriggs and another made a promise with each other to share their illicit collection of images on the file sharing program, this was not a transaction whereby Spriggs expected to receive more pornography. The fact that Spriggs expected to receive faster downloading capabilities when he shared his files was a transaction between he and the software developer but this was not a "for value transaction" between Spriggs and other child porn collectors. There was no evidence that there was downloading priority given to Shareaza 2.0 users which would then allow someone like Spriggs to download child pornography faster. The record did not support a conclusion that Spriggs entered into a child pornography distribution transaction with the expectation he would receive a thing of value.

In U.S. v. Miranda, defendant Miranda negotiated with an undercover agent to purchase some firearms in exchange for a quantity of heroin. Miranda expressed a strong desire to obtain the firearms right away and he and the undercover agents agreed to exchange 4 handguns and 3 machine guns for 57 grams. Miranda would not even accept money for partial payment; He insisted on a firearm. Miranda was charged with several counts, most relevant was possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A).

Miranda appeals the denial of his motion to dismiss and motion for judgment of acquittal, claiming that the possession of the firearms was not in furtherance of a drug trafficking offense. Miranda relied on Watson v. United States and United States v. Montano, two Supreme Court finding passive receipt of firearms did not further a drug trafficking offense. In each of those cases, the Supreme Court said that where the agents bartered for drugs by offering a firearm, it was the agents who were using the firearms and not the defendant.

The 11th Circuit did not agree, basing its decision on the plain language of the statute and other decisions of the Supreme Court and other circuits. The charge here involved the "possession" element, which the Supreme Court found was different in this context and "use" connoted more than mere possession. The language of 924(c)(1) makes it an offense for a person who "in furtherance of a drug trafficking crime, possesses a firearm. Earlier 11th Circuit decisions concluded that Congress sought to address the inherent dangers of having firearms in the proximate area of drug transactions when their presence was intended "to advance or promote the criminal activity." Other 11th Circuit decisions have taken a broad view of how possessing a firearm is in furtherance of a crime to include any set of facts when the firearm helped, furthered, promoted or advanced the drug trafficking. The 2nd Circuit has agreed. "So long as the prosecution offers proof of some nexus between the firearm and the drug selling operation, the defendant is subject to enhancement of his sentence under section 924(c)(1)(A)."

The 11th Circuit found his possession of the firearms was integral to Miranda's drug trafficking. But for the firearms, the transfer of heroin would not have occurred.
He sought to purchase as many firearms as possible and made sure they were operational before turning over 50 grams of heroin. The fact that Miranda demanded the firearms as payment for the drugs was a factor which "furthered, promoted, and advanced" his drug trafficking crime. The 11th Circuit pointed to seven other circuits that have also decided the same: bartering drugs to acquire firearms constitute "possession in furtherance" of a drug trafficking crime. In fact, the court cited a 5th Circuit case which held that the defendant did not have to receive the firearms contemporaneously with delivery of the drugs to commit the offense. The 5th Circuit reasoned that firearms regardless of the timing of their delivery, the guns functioned as the currency used to purchase illegal drugs to further the transaction.

In U.S. v Webb, the defendant pleaded guilty to possessing a firearm as a convicted felon. He was arrested when he was stopped by police en route to meet an informant for a drug purchase. Police found cash and a 9mm semiautomatic handgun. Webb was charged with attempted drug possession and possession of a firearm by a convicted felon but in his plea to the gun possession counts the drug counts were dismissed.

This is how his sentencing guidelines were calculated by the sentencing court for this conviction. First, the court looked at USSG §2K2.1, the guidelines for the firearm offense. A four level enhancement applies for possession of the firearm in connection with a drug offense giving him a level 18. Under 2K2.1, if the defendant possessed the weapon in the attempted commission of another offense, the court must calculate the offense level under 2X1.1, which was the drug offense 2D1.1, and then apply the greater of the two offense levels. The fact that Webb was not convicted of a drug offense is irrelevant because the Guidelines commentary states that another offense means "any offense" regardless of whether criminal charges were brought or a conviction obtained. The drug weight raised the offense level to 26. Pursuant to 2D1.1(b)(1) there is a 2 level increase for possession of a firearm during a drug offense for a level 28. Because 28 was higher than the range calculated under 2K2.1, the range under 2D1.1 applied, giving him a range of 70 to 87. Webb challenged the 2 level increase for possession of the firearm because it amounted to double counting. He claimed that his range for the drug offense was higher because of the firearm enhancement.

The 11th Circuit upheld the enhancement and found applying 2D1.1(b)(1) did not result in double counting for the firearm. Double counting occurs when one part of the guidelines increase the punishment for a harm that has been fully accounted for by the application of another part of the guidelines. The plain language of the guidelines shows the Sentencing Commission intended for the enhancement to apply. Section 2K2.1 directs the court to apply the higher of the adjusted offense level as calculated under 2K2.1 and 2X1.1. Section 2X1.1 directs the court to apply the guideline for the substantive offense when it includes "attempt" crimes. Here, 2D1.1 applies to attempted drug possession. The guidelines require the court to apply 2D1.1 in its entirety including the gun enhancement. In fact, the guidelines commentary confirms that the enhancement was intended in the case of a firearm possession.

The 11th Circuit observed that the Commission recognized that a firearm could potentially enable other offenses, such as drug crimes and the cross reference provision enable courts to take this into account. Furthermore, the guidelines require courts to take into consideration all relevant conduct. Because Webb possessed a firearm while attempting to buy a half kilogram of cocaine, the firearm possession was not irrelevant to the drug sale. The court reaffirmed a sentencing scheme that subjects a defendant who possessed a firearm during another offense to a higher sentence than for a defendant who merely possessed the gun. The purpose of the cross reference is to punish a defendant for using the gun in the commission of another possibly more dangerous crime. The cross reference did not amount to double counting.

In U.S. v. Davila appealed his tax fraud conviction and 115 month sentence. The only issue addressed in this reversal was that the lower court erred in participating in his Davila's decision to plead guilty. Several months prior to his plea there was an in camera hearing before a Magistrate where Davila had asked to discharge his court-appointed attorney. He complained that his attorney had not discussed any defense strategies with him except pleading guilty. The Magistrate commented that "there may not be viable defense to these charges" and that the advice from his counsel about pleading guilty may be the best advice an attorney could provide his client. The Magistrate went further with the following comments about pleading guilty:

The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you've got to go to the cross. You've got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.

Several months later Davila pled guilty to a tax fraud charge. On appeal Davila asked that the conviction be vacated, claiming that the magistrate judge's comments amounted to an improper participation in his plea discussions. Because Davila failed to object to a Rule 11 violation so the issue was treated as plain error. Under a plain error standard the defendant must show:

• Error existed,


• Error was plain,


• It affected the defendant's substantial rights, and


• It seriously affected the fairness, integrity or public reputation of judicial proceedings.

The court reaffirmed the long standing rule under Rule 11 of the Federal Rules of Criminal Procedure that prohibits the court from participating in any plea discussions between the defense and the government. The Any judicial participation is plain error and the defendant need not show any actual prejudice.

Three reasons support the absolute ban on judicial participation:

1. Judicial participation carries a high risk of coercing a defendant to accept a plea offer;



2. The prohibition protects the integrity of the judicial process; and



3. The ban preserves the judge's impartiality after negotiations are complete.

Judicial participation is presumed where the district court contrasts the sentence a defendant would receive if he pled guilty with the sentence he would receive if he went to trial and was found guilty. The court cited as an example, U.S. v. Casallas, 59 F.3d 1173(11th Cir. 1995) where the court's comments operated to coerce a plea in violation of Rule 11. There the court made comments contrasting the likely minimum sentence he would receive if he pled with the minimum he faced if he went to trial, and then suggested the defendant talk to his lawyer and see if a trial is really what he wants to do. The 11th Circuit warned courts that no matter how well meaning the concern may be for getting involved in the plea discussions, this will not excuse judicial participation. Under the binding precedent, Davila need not show any individualized prejudice for his conviction to be vacated and remanded. Davila's case was remanded to be reassigned to another district judge.

In U.S. v. W.B.G. the defendant was convicted of federal drug conspiracy. His sentence included a condition of his supervised release that required him to register as a sex offender under Sex Offender Registration and Notification Act (SORNA) because he had a 20 year old Alabama conviction for first degree rape. The rape conviction occurred in 1987, well before enactment of SORNA in 2006. He was 18 at the time of the rape and given 3 years probation under Alabama law, which at the time did not require that he register as a sex offender. W.B.G. challenged the supervised release condition under the Ex Post Facto Clause of the Constitution, which forbids Congress and the states from enacting "any law which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed."

Supreme Court case law holds that the Ex Post Facto bar applies only to criminal laws and not to civil regulations. The 11th Circuit turned to Smith v. Doe, 538 U.S. 84 (2003) the leading case in determining whether a statute is criminal or civil and non-punitive.

The facts in Doe are similar to the facts in W.B.G.'s case. Doe involved a defendant convicted of a sex offense who was required to register as a sex offender under the Alaska Sex Offender Reporting Act. There Doe made an Ex Post Facto challenge of the Alaska Sex Offender law because it was enacted after the sex offense conviction. The Supreme Court found it did not violate the Constitution because the primary purpose was not to impose a civil and regulatory scheme and not punishment. The Doe analysis first requires the court to determine if the intent of the legislation was to impose punishment. If so, the inquiry ends. The 11th Circuit determined that the statute has a civil purpose. Congress intended to enact a civil regulatory scheme whose purpose was to protect society from sex offenders and to keep law enforcement informed about sex offenders in their jurisdiction.

Second, the court must determine if the "statutory scheme is so punitive, either in purpose or effect as to negate" Congress' intention to make it a civil regulation.
Doe listed five guideposts to help determine if the regulatory scheme's effect is punitive:
1. Whether the regulatory regime has bee regarded in our national history and tradition as punishment. Because the information is public, dissemination of truthful information is in furtherance of a legitimate governmental objective.
2. Whether the regulation imposes any affirmative restraint or disability. The registrants are not subject to any physical restraints.
3. Whether SORNA promotes traditional aims of punishment, i.e. retribution and deterrence. The 11th Circuit found any deterrent effect is not enough to justify finding the Act punitive.
4. Whether SORNA has a rational relationship to a non-punitive purpose. Comparing it to the Alaska statute in Doe, the 11th Circuit found a legitimate non-punitive purpose of promoting public safety.
5. Whether the regulatory scheme is excessive with respect to its non-punitive purpose. Compared to the similar Alaska sex offense reporting regulation in Doe, which the Supreme Court found, was not excessive.

Consalvo v. Secretary for Dept. of Corrections is a federal habeas case arising from a death sentence imposed by a Florida state court for burglary and first-degree murder convictions. After the Florida Supreme Court affirmed Consalvo's conviction and sentence and denied post conviction relief, Consalvo petitioned the federal district court for habeas corpus relief that was denied. This appeal ensued.

The defendant was convicted of armed burglary and murder of his neighbor, who prior to her death, had been pursuing charges against Consalvo for the theft of money from her car. The victim was stabbed following a break in and video recordings showed Consalvo using her ATM card and driving a car similar to the victim's. According to an inmate who testified at trial, Consalvo made self incriminating statements while in jail. Consalvo claimed in his post conviction motion in the state court that the witnesses recanted their testimony. Consalvo also argued the state attorney violated Brady by withholding exculpatory evidence. He claimed the state did not disclose the identity of the informant in the jail and that the state attorneys purposely placed the informant with Consalvo and supplied him with information about the case to recruit him to act as the state's agent. Consalvo also claimed the jailhouse witness received favorable treatment and leniency in exchange for his testimony. The state rebutted by presenting testimony from the assistant state attorneys involved in the case who denied ever having met the witness and who denied giving any promises of leniency in exchange for his testimony. The state court found the witness's recantation testimony was incredible. Instead the state court credited the testimony of state attorneys who refuted the testimony of the recanting witnesses.

The petitioner also claimed his sentencing judge erred in relying on the deposition testimony of a witness that was not presented in open court at the guilt or the penalty phase, relying on Gardner v. Florida, 97 S.Ct. 1197 (1977), where the Supreme Court found a defendant was denied due process of law when a capital sentence was imposed partly on the basis of confidential information in a pre-sentence report which had not been disclosed to the defendant.

In his appeal from the habeas petition the defendant raised two issues: (1) whether the state supreme court unreasonable applied federal law in affirming the trial court's rejection of Consalvo's Brady argument; and (2) whether the state supreme court unreasonably applied clearly established federal law in rejecting Consalvo's claim that reference to evidence during sentencing that was not presented in open court violated his constitutional rights as recognized by Gardner.

The Brady and Giglio claims turned on the credibility of the witnesses at the post-convictions hearing recantations or the rebuttal testimony of the assistant state attorneys. The credibility of the witnesses is the province and function of the state courts and not the federal courts on a habeas review. The state courts did not believe the recantations nor did the state courts find any Brady or Giglio evidence withheld so the challenge was rejected.

As for the Gardner challenge, the 11th Circuit upheld the state supreme court's finding that the information cited by the sentencing court came from deposition testimony that was available to all parties and reviewed the and any reference was harmless error.

In U.S. v. Martinez-Gonzalez, the defendant appealed the 24 month sentence he received for illegal reentry into the U.S. after having been deported. What led to his deportation was his felony conviction in Alabama for possession of forged instruments - a forged permanent resident card and a forged Social Security card. Following his deportation to Mexico, he entered the U.S. illegally. He then pled guilty to entering the U.S. without permission, in violation of 8 U.S.C. 1326(a).

Under the sentencing guidelines calculation for his offense, he receives an 8 level bump in his offense level if the prior felony conviction is considered an aggravated felony. The definition of aggravated felony (8 U.S.C. §11011(a)(43)) includes an offense "relating to forgery" The main issue raised here was whether Martinez-Gonzalez' prior conviction for possession of the forged documents was a conviction relating forgery.

Martinez-Gonzalez argued that merely possessing a forged document does not amount to committing a crime relating forgery. He also argued that §11011(a)(43) is ambiguous requiring the application of the rule of lenity to be construed in his favor. The 11th Circuit did not buy in - mainly because four other Circuit Courts have upheld the 8 level increase for possession of false documents, and Martinez-Gonzalez could not cite any cases supporting his position.

As for the rule of lenity argument, the 11th Circuit found that while the phrase "relating to" may be open to some interpretation, the rule of lenity is not "invoked by a grammatical possibility." The rule is only applied if the traditional rules of statutory construction fail to interpret the statute. The court of appeals found the statute is not ambiguous in the context of this case. Congress enacted the provision with the obvious intent of curbing the use of forged documents by aliens, a crime that Martinez-Gonzalez was convicted of. Under the applicable Alabama statute, this crime is committed by possessing or uttering a forged document with knowledge of forgery and intent to defraud. Examining the array of federal forgery statutes, the 11th Circuit found the Alabama forgery statute mirrors the federal forgery statutes and concluded Martinez-Gonzalez' conviction was related to forgery.

The 11th Circuit found the sentence to be reasonable

Martinez- Gonzalez also raised the argument that his sentence was not reasonable. Because his 24 month sentence was within the guidelines range, the district court need only "set forth enough to satisfy the appellate court that [the district judge] has considered the parties' arguments and has a reasoned basis for exercising [the court's] own decisionmaking authority." (Quoting Rita v. United States)

Martinez-Gonzalez claimed the sentencing court failed to consider:
1. that he was detained in local jails since his arrest,
2. his immigration status extended his time in state custody,
3. that he will be separated from his family and face financial hardship when deported to Mexico, and
4. that he will be confined by immigration after release from prison until deported.

The 11th Circuit found the sentencing judge properly weighed the §3553(a) factors but correctly rejected Martinez-Gonzalez' arguments noting that Martinez-Gonzalez failed to pay income tax or child support while working and the evidence with respect to his family is not good - three domestic assaults, including one in which he struck the mother of his children in the face.

In U.S. v. White, former Commissioner White of Jefferson County, Alabama, was convicted of the federal crime of conspiracy to take a bribe in connection with federal funds. White was also convicted of the substantive federal crime of bribery in violation of 18 U.S.C. § 666. In writing the opinion, Judge Carnes had this comment about the overall integrity of the Jefferson County Commissioners.

'Kleptocracy' is a term used to describe 'a government characterized by rampant greed and corruption." [Citing the American Heritage Dictionary of the English Language] To that definition dictionaries might add, as a helpful illustration: 'See, for example, Alabama's Jefferson County Commission in the period from 1998 to 2008.' During those years, five members or former members of the commission that governs Alabama's most populous county committed crimes involving their 'service' in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal. We have affirmed the convictions of three others who did. This is the appeal of the fifth one.

First, some background. Jefferson County Alabama had entered into an agreement with the U.S. Environmental Protection Agency following a lawsuit against the county for untreated sewage released into the county's rivers and streams. The agreement required the county to fix its sewer system at the cost of $3 billion. The county hired engineering firms to do the repair and renovation work. One of Whites responsibilities as Jefferson County Commissioner was to oversee the hiring of the engineering firms that contracted with the county to perform the sewer construction work. One of those engineering firms won lucrative contracts with the county because the firm's owner bribed White. In exchange for the contracts totaling $1 million, White collected $22,000 in cash from its owner.

Evidence of Corrupt Intent found by White's accepting money from the contractor

To prove White violated 18 U.S.C. § 666, the government had to prove:
1) He accepted the cash from the contractor; and
2) He did so with corrupt intent to be influenced or rewarded in connection with the contractor with the county.

The court rejected White's claim there was insufficient evidence to prove White accepted cash with corrupt intent. The 11th Circuit found there was evidence he accepted cash from the engineering company with "corrupt intent" to be influenced regarding the engineering contracts with Jefferson County. He was paid the $22,000 during the period that the engineering firm entered into 48 new contracts with Jefferson County. White was the commissioner in charge of the county department that selected the engineering firm for those contracts and negotiated the terms and price. He had the authority to approve each contract before its submission to the full commission. The same evidence also supported the conspiracy conviction.

Sentencing enhancements upheld because the benefit was in excess of $1 million

White's sentencing guidelines were calculated to be 188 - 235 months. White challenged a 16 level guidelines enhancement imposed because the benefit received "in return for" the bribe exceeded $1 million (in this case the contracts exceeded $1 million. White argued that the county would have entered into contracts with the engineering firm regardless of the cash payments. The 11th Circuit disagreed with White, noting that other federal circuits require only a causal connection between the bribes and the benefit received. Here, there was a preponderance of evidence showing the contractor paid White to ensure he would not lose the county business.

Finally the 11th Circuit held that there was no double counting where his offense level increased under to subsections of under USSG §2C1.1 because he was a public official and an elected public official. The 11th Circuit noted a distinction. Double counting it said occurs where one part of the guidelines is applied to increase a defendant's sentence on account of a harm that has already been fully accounted for by application of another part of the guidelines. Here bribe taking as an elected public official is different from being a "run-of-the mill, bribe-taking, nonelected public official." White was being punished for taking a bribe as an elected public official.

The court of appeals held that the 5-level enhancement for distributing child pornography to a minor requires proof it was intended for an actual child or a fictitious child created by law enforcement. In U.S. v. Fulford, the Defendant was convicted of possessing and distributing child pornography and given a 5 level enhancement under sentencing guidelines section 2G2.2(b)(3). According to the presentence investigation report (PSR), Fulford entered into an on-line chat room with children to whom he distributed child pornography. At sentencing, the district court made a fact finding which showed that Fulford chatted over the internet with a person named "Dawn" who claimed she was a 13 year old female. Because the court found the defendant sent child pornography to Dawn, who he believed to be a minor, it applied the 5 level increase even though the sentencing court did not make a finding about whether Dawn was actually a minor. Fulford objected to this enhancement arguing that the government never proved that Dawn was in fact a minor, as defined by the guidelines, and the enhancement did not apply.

The government did not show that any of the individuals whom he sent images were in fact minors. The government argued that the evidence showed he distributed child pornography to a minor based on the user's name and purported age. The government also argued that regardless of her actual age and identity, it was sufficient to apply the enhancement if the government can show the defendant thought she was a minor and intended to distribute the child pornographic images to her. At sentencing the government offered testimony from its case agent that an examination of his computer showed that Fulford exchanged images with people who, the agent inferred, were minors. Yet there was no proof any were in fact minors.

Under the definition of a "minor" given under this guidelines enhancement, Dawn would have to be one of the following:
1. an actual individual under the age of 18;
2. a fictitious person that a law enforcement officer represents to be under 18; or
3. an undercover law enforcement officer posing as a person under age 18.
The defendant argued that the only recipients the government could point to were adults, none of which were police officers, and the sentence enhancement should not apply.

The appellate court gave a strict reading of the commentary's definition of a minor and rejected the government's argument that it includes anyone the defendant believes is a minor, other than the fictitious law enforcement officer. Here, the person named Dawn was neither a law enforcement officer posing as a minor nor was she a fictitious minor created by law enforcement officer. In order for the enhancement to apply the government would have to prove that Dawn was actually under the age of 18 at the time of the offense. Where the defendant is not dealing with a law enforcement officer, the enhancement applies only if the minor is real. Because the sentencing court made no finding of Dawns actual age, the case was remanded to make a finding whether or not the government has proven by a preponderance of the evidence that the images were sent to a minor under 18.

The issue in Walton v. Attorney General, State of Florida was whether Walton's second state petition for a writ of habeas corpus was properly filed under the Antiterrorism and Effective Death Penalty Act (AEDPA) so as to toll the one-year limitations period for filing a federal petition for a writ of habeas corpus. Under 28 U.S.C. § 2244, a state court defendant in custody has one year from the date the judgment and sentence becomes final to file a petition for writ of habeas corpus in federal court. The one year limitations period may be tolled by a properly filed application for state court post-conviction or other collateral review. However, an application for post-conviction relief is not properly filed if it is untimely.

Walton was convicted by a Florida court of three murders and sentenced to death. After his convictions and death sentences were affirmed by the Florida Supreme Court, he filed his first application for state collateral review in 1990. On June 30, 2003, the Florida Supreme Court affirmed the denial of Walton's motion for post-conviction relief and denied his first habeas petition. One week prior, on June 23, 2003, Walton filed a second habeas petition, and on October 3, 2003, the Florida Supreme Court denied it as successive. On September 30, 2004, Walton filed his federal petition for writ of habeas corpus. The federal district court found that Walton's second state petition was not timely filed so as to toll the federal limitations period. The district court dismissed the petition and the court of appeals affirmed.

A Florida prisoner sentenced to death may file a post conviction relief in a state court trial court, and petition for a writ of habeas corpus in the Florida Supreme Court. But in a death penalty case, all petitions for extraordinary relief, i.e. a habeas petition, must be filed in the Florida Supreme Court simultaneously with the initial brief in the appeal from the denial of a motion for post-conviction relief. Here the defendant did not file his second habeas petition simultaneous with this initial brief in the appeal of the denial of the motion for post-conviction relief. The simultaneous filing requirement is a timing requirement. An untimely state petition is not properly filed and cannot toll the federal limitations period. A post-conviction relief application is not properly filed in state court if it is untimely, and will not operate to toll the one year limitations period for a federal habeas petition.

Walton argued that there is no simultaneous filing rule in the Florida Supreme Court because in several cases petitioners have filed untimely applications for collateral relief in the Florida Supreme Court, which the Court reviewed and denied on the merits. The appellate court held that federal courts cannot ignore the timelines requirement and cannot reject the state's time bar simply because the state court may opt to bypass the timeliness assessment and summarily deny a petition on the merits. The Florida Supreme Court made clear in the Mann v. Moore opinion that a petition for extraordinary relief including habeas corpus petitions must be filed simultaneously with the initial brief appealing the denial of the Rule 3.850 motion.

The 2244 limitations period will not be tolled if it is clear that petitioner failed to seek timely review in the state court. Walton's second state habeas petition was untimely and the federal court did not err in dismissing his federal habeas petition.

The defendants in U.S. v. Augustin, a case known in the Miami area media as the Liberty City Seven case, lost their appeal from convictions for the following offenses:
1. Conspiracy to provide material support to a foreign terrorist organization (Al Qaeda) knowing it to be engaged in terrorist activities;
2. Conspiracy to provide material support (themselves) knowing they would be used in preparation for and in carrying out a violation of 844(f)(1) and (i)(making it a crime to maliciously damage or destroy any property of the United States.); and
3. Conspiracy to destroy by means of explosive a building leased to an agency of the U.S. and with conspiracy to levy was against the U.S.
Following two failed attempts to convict, five of the sevens defendants were found guilty of these charges following the third trial.

Defendant Batiste and a small band of followers were part of a group called the Moorish Science Temple. They frequented a store owned by Abba where Batiste engaged in political and religious conversations in front of Abba, who heard Batiste express a desire to help Osama Bin Laden. Abbas reported this to the F.B.I. and soon began working as a confidential informant. He told Batiste's group he had contacts with a terrorist organization that was willing to support Batiste's group. Eventually, Abbas introduced the group to Asaad, another FBI informant, who posed as the connection to a Middle East terrorist group. Batiste gave Asaad a list of military equipment he wanted, spoke about plans for jihad, and committing violent acts such as blowing up the Empire State Building or the Sears Tower. After expressing a desire to form an alliance with Al Qaeda, Batiste and the others took an oath of allegiance to Al Qaeda at Asaad's request. They continued to discuss plans to blow up FBI offices across the country and a few days later members of the group drove past the Miami FBI office and the National Guard Armory. Later they videotaped various federal buildings, including the Miami federal courthouse. Meanwhile Batiste complained to Asaad about the delay in getting the financial support he requested.

The appellate court found that the evidence was sufficient to prove there was a conspiracy to provide material support to Al Qaeda. The jury could reasonably conclude from their reciting the oath of allegiance, their discussions about plans to blowup FBI buildings, and from videotaping the federal buildings that they were ultimately volunteering themselves attack federal buildings under the direction and control of Al Qaeda. A reasonable jury could convict the defendants beyond a reasonable doubt of the various material support conspiracies.

The defendants challenged these convictions on the grounds that the government's investigatory techniques and its overinvolvement in the criminal scheme amounted to outrageous conduct in violation of the Due Process Clause of the Fifth Amendment. Noting that outrageous conduct cases turn on the totality of the circumstances, the appellate court did not see the government's conduct here as "shocking to the universal sense of justice" to warrant a dismissal. It concluded the government only provided a means to those who were already willing and predisposed.

Defendants also argued an FBI agent's testimony on Batiste's criminal intent was impermissible. The appellate court rejected this claim, finding the agent was not asked to testify about Batiste's state of mind, rather he was asked about the effect Batiste's statements had on the course of the investigation. The agent "testified as to what an observer perceiving Batiste's outward manifestations would take to be Batiste's intentions - and not what Batiste's actual state of mind was." The lay opinions about Batiste's intentions were relevant to show why the agents responded as they did, rather than leading Batiste to act in a way that he was not inclined to.

The appellate court upheld the trial court's decision to qualify the government's expert on Chicago street gangs, whose testimony drew a connection between Batiste and a Chicago leader of the Moorish Science Temple, a group that Batiste claimed an association with. Based on his experience with the ATF specializing in Chicago street gangs, and as a consultant in over 50 investigations, prosecutions, and sentencing of Chicago street gang members, the district court was within its discretion to qualify him as an expert.

The defendants objected to the dismissal of a juror for refusing to follow the district court's instructions on the law. The issue arose when a note from the foreperson stated that the juror #4 had made of up her mind in advance of deliberation and that the juror did not want to follow the court's instructions to make decisions based upon the evidence, but rather wanted to rely solely on her own feelings. According to #4's own note, another juror threatened to come across the table and assault her. After questioning the jurors, the court replaced juror #4. The defense argued that the conduct of the other jurors and the court's response to this conduct violated his right to an uncoerced unanimous verdict. The defendant complained that the district court brushed aside this allegation of threatened harm by failing to inquire about this during the jury questioning. The appellate court concluded the court acted with its broad discretion and followed the Eleventh Circuit warnings to "be careful about invading the secrecy of the jury's deliberations and err on the side of too little inquiry as opposed to too much." The appellate court also rejected the defense claimed the district court lacked good cause to dismiss the juror. The district court acted within its discretion in removing the juror based on a credibility finding in light of the answers given by the eleven jurors and the vague answers given by #4.

A professional sports agent, the defendant in U.S. v. Dominguez was charged and convicted of smuggling 5 Cuban baseball players to the United States, transporting them from Miami to Los Angeles, and then harboring them there until they applied for asylum. Dominguez represented over 100 baseball players, many of whom played for Major League Baseball teams. Some of his clients were Cuban nationals who arrived without official documentation in the United States. According to the government's theory, he planned to represent them in their baseball contract negotiations and collect a percentage of their earnings.

For his defense, Dominguez invoked the U.S. law known as the Cuban Adjustment Act (CAA) which gives special treatment to Cuban nationals who come to the U.S. and allows Cuban nationals who have no documentation authorizing their presence in the U.S. to remain here without having to prove they are the victim of persecution. The CAA is enforced through the "Wet Foot/ Dry-Foot" policy, which offers the benefits of the CAA to those Cuban nationals who reach U.S. soil (dry feet) while Cubans who are interdicted at sea (wet feet) are repatriated and can not benefit.

Dominguez arranged with his cohort, Medina, to smuggle 5 Cuban baseball players into the U.S., agreeing to give Medina 5% of any Major League Baseball contract the players might sign. The five players were successfully brought in through the Florida Keys. The players were transported to Los Angles where they met with Dominguez and signed agency contracts that included clauses obligating them to pay Medina a percentage of their baseball earnings. Shortly after their arrival, Dominguez arranged for an immigration attorney to process the players through immigration to apply for asylum and parole.

Dominguez claimed that he believed the Wet Foot/Dry Foot policy gave the players legal status to enter the U.S. and therefore he lacked specific intent to smuggle the players under the statute §1324(a) which makes it a crime to knowingly bring or attempt to bring an alien to the United States. The court defined the term "knowingly" as requiring proof of knowledge of the facts constituting the offense and did not require specific intent to violate the law. Because willful conduct is not required to violate the statute, the special status given to Cuban Nationals through the Wet Foot/Dry Foot policy was not relevant to the state of mind required to commit a smuggling offense in violation of §1324. While the Wet Foot/Dry Foot policy may pertain to the action taken with regard to the players, the smuggling offense was complete prior to the time the players arrived in the U.S.

The Appellate court did reverse the transporting and harboring convictions. The evidence was insufficient for a reasonable jury to find beyond a reasonable doubt that Dominguez transported the Cuban players from Miami to Los Angeles in order to further their illegal status. The evidence showed the players were taken to an experienced immigration attorney shortly after arrival in Los Angeles for their immigration processing and prior to that they lived openly and did not act in any way that suggested they were avoiding immigration officials. Likewise, there was insufficient evidence to support a harboring conviction, which required proof that Dominguez concealed, harbored or shielded the players from immigration detection. The evidence of the applying for immigration proceedings and living openly failed to support the conclusion that Dominguez helped the player were hiding from or trying to avoid detection by immigration officials.

In dissenting, Judge Tjoflat concurred with the reversal of the convictions for transporting and harboring but would reverse the smuggling conviction and remand for a new trial on grounds that excluding the federal immigration policy from the defendant's case effectively prevented the defendant from presenting his defense that he did not intend to violate the law.

In U.S. v. Perez, the defendants were charged with a Hobbs Act conspiracy for planning to rob a fictitious cocaine stash house in Miami. The Hobbs Act makes it a federal crime to conspire to commit a robbery that has some affect on interstate commerce. They were also charged with carrying a firearm in connection with the attempted robbery, and defendant Del Monte was charged with possession of a firearm by a convicted felon. In this case, the Informant (CI) tried to convince the defendants to rob a fictional cocaine stash house by explaining how they could pull it off with the cooperation of a disloyal drug courier who would pass on information about the location of the drug stash house so the co-conspirators could steal the drugs. He told the coconspirators that the stash house was guarded by armed guards. They discussed obtaining five guns including a machine gun. They decided to transport the weapons in a separate vehicle. The weapons were placed in a car driven by the CI while the coconspirators followed. When law enforcement stopped the cars, they found the guns in the CI's car and stocking hats, pepper spray, and knives were found in the car driven by the defendants.

Defendants argued there is no evidence they had constructive possession of the firearms transported by the CI. The appellate court disagreed finding the evidence supports a reasonable conclusion that defendants:
1. had knowledge of the guns being transported to the robbery site in the other car, and
2. had intent that those guns be used by the coconspirators in the robbery of the fictional stash house.
The evidence shows the defendants were aware of the dangerous nature of the operations, i.e. robbing armed guards of 30 kilograms of cocaine and other undercover discussions by the coconspirators.

The appellate court found the evidence was sufficient to prove Del Monte constructively possessed the guns. The evidence required a showing Del Monte had the intention to later exercise dominion and control over the guns, whether personally or through others. In Del Montes' car were found the stocking hats, which implicated him in the armed robbery, together with the intent of the coconspirators to use guns to overcome the guards in order to carry out the robbery.

Defense witness had the right to remain silent

The codefendants subpoenaed Rojas to a pretrial deposition but Rojas exercised his right to remain silent. The defendant asked the court to compel Rojas to answer questions by defendants counsel. The district court denied the request. The defendant argued the district court should have held a hearing to determine if Rojas had reasonable cause to refuse to answer counsel's questions. The court found no abuse of discretion
for the district court to find that Rojas could plausibly fear his answers could lead to a perjury charge by the government.

Warrant for electronic surveillence was proper

The defendant moved to suppress all evidence obtained through court ordered electronic surveillance of calls to and from cell phones. The defendants argued that because the government had success in obtaining evidence prior to receiving permission to intercept electronically, the necessity requirement was not met. Even if the government possessed sufficient evidence to prosecute defendant prior to the wire tap, it only had limited knowledge of the full extent of his criminal activities and of the coconspirators activities.

Failure to address the defendant was error and new sentencing ordered

The sentencing allocution for one defendant was error because the district court did not address the defendant directly. The court directed its question about the defendant allocating to the attorney and not the defendant directly. The Court never got a response from the defendant, and the case was remanded for resentencing. The court found the defendant's substantial rights were affected because there was a chance of a lower sentence under the sentencing guidelines.