Highlights from the Eleventh Circuit court of appeals

Mandatory minimum sentence for firearm charge upheld on appeal

August 15, 2014,

In U.S. v Payne, Defendant Payne appealed his sentence for bank robbery and possession of a firearm, arguing that the district court violated his Sixth Amendment rights when it sentenced him to the mandatory minimum sentence on a firearm charge. Payne pleaded guilty to federal crime of bank robbery where he served as the getaway driver, in violation of 18 U.S.C. § 2113(a), (d), and one count of possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He received a 30-month sentence on the bank robbery count and a mandatory minimum 84-month sentence on the firearm count. At his plea hearing where he pleaded guilty to both counts of the indictment, Payne admitted that he had knowingly participated in an armed robbery of a bank.

Based on the fact that one of Payne's accomplices had pointed a pistol at a bank teller during the robbery, the Presentence Investigation Report (PSR) concluded that Payne was subject to an 84-month mandatory minimum sentence to be served consecutive to his sentence for the bank robbery charge. Because his indictment had not specifically mentioned the brandishing provision of §924(c)(1)(A) and he had never admitted at his plea hearing, he asserted that sentencing him to the mandatory minimum would violate his Fifth Amendment due process rights and his Sixth Amendment rights.

Payne's primary contention on appeal was that the district court violated his Sixth Amendment rights, when it sentenced him to the mandatory minimum sentence alleging an error under Alleyne v. United States. If an Alleyne error occurred, the court of appeals would vacate Payne's sentence unless the error was harmless. Under Alleyne, any fact that increases the mandatory minimum sentence for a crime must be admitted by a defendant or be submitted to a jury and found beyond a reasonable doubt evidence. In this case, he did not admit at his plea hearing that the firearm had been brandished during the bank robbery that he committed, because he was waiting in the car for the getaway. Nevertheless the district court sentenced him to a mandatory minimum sentence based on the evidence presented where a bank teller testified that one of the defendants had pointed a pistol in her face during the robbery and the defense didn't rebut the teller's testimony.

In doing so the court of appeals found the district court erred under Alleyne because it sentenced Payne to the mandatory minimum. Nevertheless, the district court's error was harmless beyond a reasonable doubt. As the court of appeals explains with regard of Apprendi error (maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by defendant), such errors are harmless beyond a reasonable doubt when there is uncontroverted evidence supporting a statutory fact that alters the range of possible sentences a defendant may receive and the same reasoning applies to Alleyne error because is an extension of Apprendi and the government presented uncontroverted evidence that a firearm was brandished during the bank robbery in which Payne participated. That testimony was unrefuted. For the reason stated, the court of appeals affirmed the district court judgment.

Consent by defendant's wife to the full search of defendant's computer results in a valid

August 4, 2014,

In U.S. v Watkins, the defendant appealed the court's denial of his motion to suppress evidence in violation of the Fourth Amendment obtained by the government as a result of a warrantless search of his computers and its denial of his motion for reconsideration and to reopen the evidentiary hearing. On October 24, 2009, three days after a girl body was found in a Georgia landfill, and detectives visited Watkins for permission to search his computer; he agreed. Later that day, Watkins agree to meet with a detective from the Clay County Sheriff's office where Watkins expressed a willingness to help in any way he could about the disappearance of the girl. As the interview progressed, Watkins stated that he had used LimeWire to download and view child pornography approximately one hundred times. The detectives assured Watkins that he was not searching for his child pornography but only for clues to the girl's murder and stated "I am not worried about your files and all that kind of stuff. I've got my own private stuff on my computer, you know what I am saying?" Watkins subsequently read and signed a voluntary consent form authorizing full search of his computers.

The Detective and an evidence technician went to Watkins home to meet Mrs. Watkins, explained that Watkins had signed a form consenting to a search of the computers in the home and asked for her consent to search the computers as well. She agreed, although she later claimed that she did so with the understanding that the search was limited to the murder investigation and the website the children had visited. The consent form signed by Mrs. Watkins was identical to the one Watkins had signed at the Sheriff's office. Watkins who was present did not register any objection or reservation while officers sought and obtained Mrs. Watkins's consent to an unlimited search of the computers. After the forensic analysis found evidence of child pornography, the evidence was used to charge Watkins with receipt of child pornography by computer over the internet. Watkins moved to suppress the evidence from the computers. A magistrate judge held a hearing and recommended denial of the motion. It reasoned that the detective's assurances about the scope of the search had limited Watkins consent to evidence relevant to the murder investigation, but that Mrs. Watkins consent authorized a general search and therefore permitted discovery of the child pornography evidence. The search was valid because, Mrs. Watkins consented to a full search of the computers, and Watkins failed to show that the search violated his rights under Randolph. The district court upheld the magistrate's recommendation concluding that Watkins had "not actually expressed a refusal to consent to an unlimited search of the computers" as Randolph required; instead, "he consented to the detective's request for a search that was implicitly limited... to certain of the computers." He was charged under 18 U.S.C. § 2252 for receipt of child pornography over the internet.

The district court and denied Watkin's motion for reconsideration and for a new evidentiary hearing before the district court. The district court subsequently conducted a bench trial on stipulated facts and found him guilty of the charged offense.
In his appeal, he contended the search was invalid because it was conducted without a warrant and without his consent; he submits that his wife's consent was not sufficient, as a matter of law, to overcome the limited scope of his own permission. He relies principally on the decision of the Supreme Court of the United States in Randolph as support for his view.

Here Watkins consented in writing to an unlimited search of the computers, but that consent followed repeated assurances by Detective that officers were interested in the computers only for the ongoing murder investigation. The district court found that the Detective false statements misled Watkins about the purpose and the scope of the proposed search. The district court therefore concluded that the scope of Watkins's consent was limited to information relevant to the murder case investigation. The parties do not dispute that Mrs. Watkins had the authority to consent to a search of the computers. However, the facts showed that Mrs. Watkins signed a consent form-after having the consent form read to her and after discussing it with the Detective while she sat with her husband at a table in their home. The consent form's terms clearly set forth the unlimited scope of the search. Mrs. Watkins gave independent consent to a FULL search of the computers.

The record is devoid of any indication that, during the process, Watkins interposed any objection or suggested to his wife at any time that the consent documents were in any way limited by another understanding. His silence and acquiescence did not qualify as the type of objection required by Randolph. To obtain the protections of Randolph, a defendant, while present with his cotenant, must object to the search.
Watkins also requested that the Court of Appeals review the district court's denial of his motion for reconsideration and to reopen the suppression hearing so the district court could make its own credibility determination about the conflicting testimony of Mrs. Watkins and the detective. The magistrate provided thorough and reasonable support for his conclusions. The district court therefore did not abuse its discretion in denying Mr. Watkins motion.

Modifying defendant's probation conditions for expressing his opinion about his probation sentence was constitutionally permissible

July 21, 2014,

In U.S v. Serrapio, the defendant asked the court of appeals to hold that the district court's modifications to his federal probation sentence violated his rights under the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the First Amendment. After his federal conviction, Serrapio was sentenced to 3 years of probation (with a number of conditions, including four months of home confinement with electronic monitoring and 250 hours of community service) violating 18 U.S.C. § 871 for threatening to shoot the President Barack Obama during his 2012 visit to the University of Miami. Serrapio spoke to a reporter for his college newspaper. He told her that his ordeal had been "pretty funny", that he could not be imprisoned in his "own house", and that a lot of good had come out of his case, including for his rock band, as a "lot of people showed up to see the kid who threatened to kill the President." After the district court learned of these comments, the district court issued a notice setting a hearing concerned a status conference relating to a modification of probation. When the parties appeared as schedules, the district court said that it had set the hearing because it was "certain" that Serrapio did not understand what probation meant. After stating that it had the authority to modify the conditions of probation pursuant to 18 U.S.C. § 3563(c), the district court modified the conditions to include 45 days in a halfway house and one year of home confinement with electronic monitoring. The district court did not increase the three-year term of probation that it had initially imposed. In this appeal,

The first issue addressed by the court of appeals was whether the appeal moot. The court concluded that it was as to the 45-day halfway house term which had been served. They reach a different result as to the one-year period of home confinement, for which he suffered collateral consequences as a result of that modification. The district court ordered Serrapio to pay the costs of electronic monitoring for the additional eight months of home confinement and because he incurred a financial expense due to the district court's modification of the home confinement condition of probation, the appeal is not moot.

Serrapio contends that this modification violated the Double Jeopardy Clause of the Fifth Amendment, which that provide that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb". Significantly, the "Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment. The modification did not violate the Double Jeopardy Clause because it did not upset any legitimate expectations held by Mr. Serrapio as to the finality of the conditions of probation, as it was authorized by statute and was based on Mr. Serrapio's post sentencing conduct.

The court of appeals rejected Serrapio's claim that district court erred in not providing him with the sort of the process required in probation revocation proceedings under Rule 32.1(b) of the Federal Rules of Criminal Procedure, and that Rule 32.1(c), the provision governing modifications of probation, is unconstitutional because it does not provide the same procedural requirements as Rule 32.1(b).
Finally, the court disagreed with his argument that the district court violated his First Amendment rights by increasing the term of home confinement with electronic monitoring and concluded there was no constitutional violation.

No error in sentencing defendant to jail for a supervised release violation

July 14, 2014,

In U.S. v. Vandergrift, the defendant was placed on three years of supervised release after serving a 97-month sentence for the federal crime of possession and distribution of child pornography. Before the expiration of a three year supervised release, Vandergrift's probation officer filed a petition seeking revocation of his supervised release charging that he violated the following conditions of his supervised release: (1) failing to obtain lawful employment; (2) failing to obey instructions to search for and obtain employment; (3) knowingly giving false information to a probation officer when questioned about the whereabouts of another federal supervisee; (4) possessing or having access to a pornographic DVD and a Maxim magazine, both of which contained sexually stimulating material; and (5) violating 18 U.S.C.§ 1001, when he knowingly lied to a probation officer about his roommate's absence. The district court revoked Vandergrift's release and imposed an above-guidelines sentence of 24 month imprisonment to be followed by one year of supervised release.

In revoking supervised release, the court considered the safety of the public, the example set to others in deterring similar conduct, punishment for the crime that was committed, and the court also considered what was best for Vandergrift as a factor.
Having considered all of these, the sentence imposed was 24 months in prison, the maximum under statute hoping that during the period of imprisonment "something can be found to put him on a better course."

The Vandergrift appealed arguing that the district court erred with respect to two of the alleged supervised release violations. He claimed that he did not fail to obtain employment "willfully", and that he did not constructively possess the pornographic DVD and the Maxim magazine. He also challenged the procedural reasonableness of his 24-month sentence, arguing that the district court relied on impermissible factors in violation of Tapia v. United States.

Because Vandergrift pleaded guilty to conduct underlying two of the supervised release violations, the district court did not abuse its discretion in revoking his supervised release. Vandergrift also challenged the procedural reasonableness of his 24-month sentence contending that the district court made two errors when fashioning his post-revocation sentence. First, it was impermissible to consider the factor set out under 18 U.S.C. § 3553(a)(2)(A), the need to promote respect for the law, and the need to provide just punishment for the offense. Second it erred in considering the benefits of rehabilitation when sentencing Vandergrift to 24 months.

In Tapia v. United States, the Supreme Court stated that sentencing prohibits federal courts from considering defendant's rehabilitative needs when imposing or lengthening a prison sentence. The Supreme Court emphasized that a sentencing court errs by relying on or considering rehabilitation in any way when sentencing a defendant to prison.

The Court of Appeals found that there was a Tapia error because the district court considered rehabilitation, an improper § 3553(a) factor in sentencing Vandergrift. This amounts to procedural error. The court held that the district court errs when it considers rehabilitation when imposing or lengthening a sentence of imprisonment. In light of Tapia, the Court of appeals found that the district court erred when it sentenced Vandergrift to prison because it considered rehabilitation when doing so.
The Court of Appeals found the sentencing transcript reflected that Vandergrift's "rehabilitative needs clearly constituted only a minor fragment of the court's reasoning". The court's primary considerations were for the safety of the public and deterring others from similar conducts. For these reasons, despite the court of appeals finding of Tapia's error, the district court is affirmed.

Sentencing guidelines enhancement prohibited for trafficking in access device identity theft

July 7, 2014,

In U.S. v. Charles the defendant was found in possession of prepaid debit cards that were loaded with tax-refund monies sent by the I.R.S. in response to fraudulent tax returns. Charles pleaded guilty to the federal crimes of trafficking in access devices and aggravated identity theft. The identity theft count carries an additional two-year sentence that runs consecutively to another other predicate crime involving the unauthorized transfer, possession, or use of the identity of another. The applicable sentencing guidelines provision for the access device count, section 2B1(b)(11)(B), has a two-level increase for the production or trafficking of unauthorized devices The district court found that the enhancement was warranted because the Charles transferred one of the prepaid debit cards to his codefendant and thereby "trafficked" an unauthorized access device.

On appeal, Charles challenged the two point enhancement arguing the district court erred in refusing to submit the applicability of the enhancement to a jury pursuant to Alleyne v. U. S. The court rejected his Alleyne argument because the two level increase only affected Charles' guidelines calculation and not his statutory mandatory minimum or maximum sentence. Alleyne holds that a court cannot make a judicial finding of a fact at sentencing where the fact is an element of a crime that increases the maximum sentence. Alleyne preserved a sentencing court's fact finding authority concerning facts that impact the statutory punishment.

However, the court of appeals did find that the two level increase for trafficking was error. U.S.C. § 1028A(a)(1). The guidelines applicable to U.S.C. § 1028A is USSG 2B1.6 which specifically provides that the sentencing guideline for the identity theft offense is the two year consecutive sentence mandated by statute. The Application Notes of the guidelines explain that if a sentence under section 2B1.6 is imposed in conjunction with a sentence for an underlying offense, the court should not apply any specific offense characteristic for the "transfer, possession, or use of a means of identification when determining the sentence for the underlying offense." Because Charles already received the mandated two-year consecutive for aggravated identity theft, the Application Note to section 2B1.6 precluded the two level increase for transferring the debit card to the codefendant.

The government's alternative argument was that the court should affirm the two-level increase because the record supported a finding that Charles "produced" unauthorized access devices. Section 2B1.1(b)(11)(B) also applies a two level increase in the guidelines offense level when the offense involves "the production of any unauthorized access device." Section 2B1.6 does not prohibit the two level enhancement based on the production of the unauthorized access device. At sentencing, the government argued that there was production and asked the district court for a ruling on that ground, but the district court ruled solely on the "trafficking" ground and declined to rule on the government's "production" argument. Because the court of appeals did not have the benefit of fact finding on this issue, the court remanded to the district court to address the issue of production.

Resentencing after remand from the U.S. Supreme Court was correct

July 1, 2014,

In U. S. v Fowler the defendant was convicted of under the federal witness tampering statute for murdering a police officer with the intent of preventing him from communicating information about a federal criminal offense to a federal law enforcement officer. He was also charged in count two with using a firearm during a federal crime of violence, specifically a conspiracy to commit a robbery in the conspiracy to commit bank robbery and in doing so by murdering officer police officer following. Following a trial Fowler was found guilty on both counts is presentence investigation report calculated is offense level for count one the witness tampering at 46 and with his criminal history category of six he faced a recommended sentencing guideline of life in prison. For the gun possession the presentence investigation report recommended the 10 year mandatory minimum sentence. He was sentenced to life imprisonment for count one in eight consecutive term of 10 years for count two.

Fowler appealed his conviction for witness tampering arguing that the evidence was insufficient to show the officer would likely have communicated with a federal official. The conviction was affirmed by the 11th circuit, but the U.S. Supreme Court reversed, holding that the evidence was insufficient for the conviction under the witness tampering statute. On remand, the district court vacated the sentence and decided it would re-sentence the defendant and count two. The district would announced that it would not have given someone 810 year sentence on a murder with a firearm charge standing alone. After the presentence report calculated the defendant's guideline range it found the guideline range to be life imprisonment. The court imposed a life sentence.

On appeal, the defendant Fowler argued the district court had no authority to re-sentence him on the remaining count of possession of a firearm during the commission of a federal crime, but instead was required to let the 10 year sentence stand. And he argued that the original sentence was not a "sentencing package" and the firearm count was not interdependent with the witness tampering count. He argued that the two counts were not put together under the sentencing guidelines and that the sentencing court should not impose any sentence greater than the ten-year term originally imposed.

The court rejected this argument and found that in a multi-count case, the when the case is remanded, the district court has the authority to fully revisit the sentencing and may look at the entire and facts of the case of for the re-sentencing. The court held that the inter dependence requirement for re-sentencing was only applicable to unbundling decisions in 2255 cases. Here the sentence was part of multi-count package that may be revisited to ensure the overall sentence on the surviving counts is consistent with the court's intent.

The court also rejected Fowler's position that his life sentence violated due process rights because it was imposed as a punishment for his Appellate reversal. The 11th circuit rejected this argument finding the sentence imposed was no more severe than the original sentence and therefore was not the product of vindictiveness.

No error found in mortgage fraud guilty plea

June 18, 2014,

Rodriguez challenged her guilty plea to conspiracy to commit the federal crimes of mail fraud and wire fraud arguing that her plea was not knowing or voluntary. She also claimed her plea should not have been accepted by the district judge because she told the district judge she suffered from a mental illness. She also challenged the sentence imposed. The court of appeals found no error. Rodriguez pleaded guilty for her participation in a mortgage fraud scheme involving fraudulent loan applications submitted to lenders across the country to obtain loans and properties in Miami-Dade County and in Broward County. The scheme used straw buyers who had no intention of residing in the purchase properties. The loan applications contained false employment verifications, false paystubs, and false deposit verifications. The guideline range came to 78 to 97 months, but the district court gave her a sentence below the guideline range to prevent disparity with co-conspirators.

Because Rodriguez's guilty plea challenge was raised for the first time on appeal, the court of appeals reviewed for plain error. During the plea she indicated that she had undergone treatment for mental than illness for the year following her arrest and was under the care of a psychologist. The court of appeals found that she had a full opportunity to do to consult with her Attorney during the guilty plea hearing. There was no evidence indicating an inability to consult with her attorney or to understand his advice to her. Similarly, there was no evidence to indicate she was not competent to enter the plea. The court found that the colloquy satisfied the provisions of rule 11.

The court of appeals rejected the defendant's plea challenge on the grounds that there was and in sufficient factual basis to accept her plea. The court determined that Rodriguez confirmed at the plea hearing that she committed the offense, and it found a sufficient factual basis for the plea.

The court of appeals rejected the defendant's challenge to the $12,000,000 loss, which resulted in a 20 level guideline enhancement. The court of appeals found that the government carried its burden of proving the loss attributable to the defendant. At her sentencing, the government introduced a spreadsheet demonstrating the total loss amount attributable to Rodriguez was over $12,000,000.

The court of appeals rejected the defendant's challenge to other sentencing guidelines enhancements. The court found that the number of victim lenders was more than 10. The court rejected her sophisticated means challenge finding that the facts of the offense met the guidelines definition. Court also rejected her appeal from the district court's decision to deny her a minor role reduction.

Finally, the court rejected the defendant's challenge to the restitution order. She argued that more than two years he lapsed between the sentencing and the date of her restitution hearing. The court rejected her argument for a speedy sentencing and speedy appeal. The court found that her due process rights were not violated by the delay because the court sentencing court stated its intent to impose a restitution amount at the original sentencing and the defendants the defendant suffered no prejudice from the lengthy delay.

Speedy trial motion was not timely but defendant overturns his sentence

June 17, 2014,

Isaacson appealed his conviction following a jury trial for conspiracy to commit wire fraud and mail fraud and securities fraud. The conspiracy defrauded investors through a hedge fund that placed money in shell companies with no assets or business operations. The hedge fund drove up the prices of the shell companies causing them to appear more valuable than they really were. From his Florida office, the defendant assisted in creating fraudulent valuation reports in an effort to placate auditors.

In his appeal, the defendant challenged the district court's failure to grant his speedy trial motion. The court of appeals upheld the district court's decision because it found the defendant filed his motion after the trial began. The defendant's speedy trial motion was filed on April 19, 2010. Prior to that the trial court began ruling on jury challenges based on the written responses to juror questionnaires sent to perspective jurors. The court of appeals concluded that the voir dire had begun when the trial court began making its rulings.

The court also upheld the district court's denial of the defendant's statute of limitations challenge based on his claim that the government failed to prove an overt acts occurred within the period of the statute of limitations. The one overt act that took place within the statute of limitation period was done by the codefendant. The defendant argued that the overt act does not mention the defendant and cannot be used to bootstrap the defendant's conduct within the statute of limitations. Rejecting this argument, the court of appeals found an individual conspirator need not participate in the overt act done in furtherance of the conspiracy for the overt act to fall within the statute of limitations.

The court also rejected the defendant's argument that the evidence was insufficient to support his conviction. The argument was largely based the argument that two of the government's witnesses were not credible. The defendant could not point to any circumstances that would render their testimony incredible as a matter of law.

Loss amount incorrect

The defendant successfully challenged his sentence in arguing that the court erred in by attributing Morgan Stanley's $15 million dollars investment loss to the defendant. The court takes a two-step process in determining whether to hold the defendant responsible for losses from the receipt reasonably foreseeable acts of co-conspirators. First the district court must make the individualized findings concerning the scope of criminal activity undertaken by a particular defendant. Second the court can only enhance for reasonably foreseeable losses caused by the co-conspirators acting in furtherance of the conspiracy to which the defendant agree to participate. Here, the government failed to establish that Morgan Stanley's losses were the result the defendant or his co-conspirators conduct in furtherance of the conspiracy. The government could not prove that Morgan Stanley's losses were attributable to any fraud by the coconspirators. Morgan Stanley never saw any of the false evaluations prepared by the co-conspirators and apparently made its investment decision entirely independent of any false audit reports.

Evidence of marriage fraud by three brothers in their bid for citizenship was enough to convict

June 17, 2014,

The defendants in U.S. v. Chahla were three brothers from Syria who were convicted following a jury trial of various federal crimes in connection with their fraudulent marriages and their subsequent attempt to procure citizenship. The three brothers, all of whom resided in Florida, paid three women for a marriage. After their respective marriages, the brothers filed an I-130 petition to sponsor the defendants in their request for lawful permanent resident status ("green card".) At the same time the brothers filed their own form I-485 application to adjust their status based on marriage to a U.S. citizen. After they were interviewed by immigration officials, the defendants received lawful permanent resident status. Two of brothers up applied for citizenship while the third just applied for his lawful permanent residency. An investigation into their marriage led to these charges.

The defense were indicted and convicted of conspiracy to commit marriage fraud and six counts of unlawful procurement of naturalization pursuant to 18 U.S.C. § 1425. For two of the defendants, the unlawful procurement of naturalization charges was based on false statements made in the application to become a lawful permanent resident and false statements made in the naturalization application. For a third brother the unlawful procurement charges were only based on his original lawful permanent resident application. Two defendants challenged their conviction under 18 USC § 1425 for unlawful procurement of naturalization and citizenship because the counts relied on false statements made in support of the lawful permanent resident application. The defense argued that the conviction should be reversed because § 1425 criminalizes fraudulent procurement of naturalization, but not false statements made in the application to adjust to permanent residents. The court rejected this argument. It found that becoming a lawful permanent resident was a statutory a prerequisite to becoming a naturalized citizen. The defendants' attempt to become a naturalized citizen was contrary to law to the extent it was based on fraudulently obtained status as a lawful permanent resident. The defendants filed naturalization applications and a reasonable jury could conclude that the defense intended to seek naturalization when they file their fraudulent lawful permanent resident applications.

A third brother was convicted of making a false statement in the naturalization application. The naturalization form asked if the defendant had ever given false or misleading information to any U.S. government official while applying for any immigration benefits. There was overwhelming evidence that the defendant's marriage was fraudulent, and the answers to these questions provided evidence for the court to conclude sufficient evidence existed to convict this count.

Claim of bad faith

Finally the defendants challenge to the conviction based upon their argument the government acted in bad faith in calling as a witness when did knew her testimony would conflict with prior statements. The court found no error because the court found the government had not acted in bad faith in offering the testimony of the witness knowing it to be useless without eliciting impeachment testimony.

What is an instrumentality of a foreign government under the bribery statute? And deliberate ignorance instruction to the jury was error but harmless

June 4, 2014,

Defendants Esquenazi and Rodriguez were convicted in Miami federal court of conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and conspiracy to commit wire fraud and money laundering. The FCPA makes it a crime to bribe the foreign official for the purpose of influencing the official. A foreign official is defined as an officer or employee of a foreign government or of any department, agency, or instrumentality thereof. The chief issue in the appeal in U.S. v. Esquenazi, was the definition of an instrumentality of a foreign government.

The defendants ran a telecommunications company that purchased phone time from foreign vendors and resold the minutes to customers in the United States. One of their main vendors was a telecommunications company in Haiti. The defendants worked out a deal with the phone company that reduced the defendants' phone bill debt and in exchange the defendants agreed to funnel 50% of the savings to the principle under the guise of a consulting agreement. The government presented evidence that Haiti owned the phone company and that the phone company was an instrumentality of the government of Haiti. The issue to the court of appeals said to resolve was whether the district court's definition of the instrumentality as it was used in the jury instructions was correct. Furthermore it had to define instrumentality in resolving the sufficiency of the evidence issue and the defendants' challenge to the constitutionality of the statute.

The court rejected the defendants' argument that the definition had to be limited to entities that perform traditional core government functions. The court defined instrumentality as an entity controlled by a foreign country that performs a function that the controlling government treats as its own. To decide whether the government controls entity courts and juries should look to the following: the foreign government's formal designation of that entity; whether the gov't has a majority interest in the entity; the government's ability to hire and fire the entities principles; the extent to which the entity's profits go directly to the government; and the to the extent to which the government funds the entity if it fails to break even. The court found that the lower courts jury instruction included most of the relevant elements for determining an instrumentality of a foreign governments incorrectly stated the definition of an instrumentality.

As for sufficiency the evidence, the court found that the evidence supported a verdict of that Teleco was and instrumentality of the Haitian government. Haiti gave the company a monopoly over Telecommunications Services, and its director was chosen by the Haitian president. The government expert testified that Teleco belong totally to the state and was considered a public entity.

The court rejected the defendants' argument that the statute was unconstitutionally vague. Here they're as no question under these facts that the company was overwhelmingly owned by the state and had no separate independents based on these facts there was no vagueness.

Deliberate Ignorance jury instruction

The court did find fault in giving the deliberate ignorance instruction but found harmless error. The court found the trial judge erred in giving the instruction because the evidence only points to either actual knowledge or no knowledge on the part of the defendant. It cautioned trial courts not to give the deliberate instruction except when there is evidence in the record showing the defendant purposely contrived to avoid learning the truth. It was harmless error because of overwhelming evidence that the defendant had actual knowledge of the unlawful payments.

Guilty plea thrown out because the district court participated in plea discussions

May 30, 2014,

The defendant in U.S. v Harrell received a 25 year sentence after pleading guilty to conspiracy and the substantive robbery a Miami Walgreens and a McDonalds in violation of the Hobbs Act and two counts of possession of a firearm in relation to the robberies. He argued on appeal that the district judge participated in the plea negotiations in violation of Federal Rule of Criminal Procedure 11(c).

Here's what happened in this Miami federal criminal case. On the day of trial, prior to bringing the jury venire into the courtroom, the district court stated that "it might be worth spending a few minutes in terms of the overall gravity of the situation to discuss whether or not there is some possibility of a plea or pleas of the two defendants." The district court then engaged defense counsel for the codefendants, and the prosecutors "in a lengthy discussion regarding the likelihood of a plea from either or both of the defendants." The discussion then turned to the possibility of a plea by the Defendant Harrell and his attorney mentioned he had been interested in the same plea certain codefendants received but that the government would not treat Mr. Harrell the same because he was facing state court charges involving murder and attempted murder pending. At one point the district court commented that Harrell was facing a "horrendous mandatory sentence that becomes somewhat irrevocable after a trial if there is a conviction." After a recess, the government came back with an offer to an agreed upon 25 year sentence that Harrell rejected. The trial began with jury selection but after the lunch recess Harrell's attorney announced that his client would accept the 25 year sentence. The codefendant, Dantzle, proceeded to trial and was convicted.

Because the issue was raised on appeal for the first time, the plain error standard applied. It required the defendant to show the error was plain, that the error affected his substantial rights, and the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. The 11th Circuit found several violations of Rule 11(c)(1). First, the district court "instigated - without any mention of possible plea agreements from the parties" the plea-related discussions with counsel for both defendants and the government. Second, the district court improperly cautioned the defendants about the severity of his potential 32 year sentence should be convicted after trial and generally warned the defendant about the extremely high sentences they were facing should they be convicted and that the court would not have the same latitude to fashion a fair sentence if the defendants were found guilty by the jury. Third, the district court took the lead in orchestrating the plea agreement. While it found the district court had good intentions, the Rule 11 violation was plain error and reversible because comments by the district court, the defendant would reasonably have felt pressured to accept a plea rather than go to trial.

The codefendant who was convicted following trial argued on appeal that the district court erred in allowing the government to present expert testimony from a detective with respect to cell phones and cell towers without requiring the government to comply with the requirements for an expert witness opinion testimony pursuant to Rule 702. While the 11th Circuit agreed there was a violation of Rule 702, the district court abused its discretion in allowing the detective to testify as an expert. The court found the error was harmless because there was other evidence supporting the conviction

No credit against loss where the guideline sentence is based on intended loss and there is no victim

May 24, 2014,

In U.S. v. Massam, the defendant was convicted of theft and embezzlement of an employee benefit fund (E.R.I.S.A) he set of for himself and his employees and for which he served as the pension plan administrator. After divorcing his fifth wife, the state divorce court entered a distribution order to his ex-wife in the amount of $452,242. The defendant then attempted to illegally transfer of the funds in the pension plans to a foreign bank account so he could later withdraw the funds. His attempt to transfer the funds failed when the foreign bank refused to accept the wire and the funds were returned to the domestic bank. Following that failed attempt he appealed the state court judgment awarding his wife's funds pension funds, and in filing the appeal he posted a supersedeas bond in an amount which covered the court ordered amount for the ex-wife. Subsequently, the divorce court order was affirmed and his obligation to pay her was met by the supersedeas bond. Following all that, the defendant was investigated for his theft of the pension plans and eventually indicted and he pleaded guilty to the federal crime of theft, embezzlement, and money laundering in connection with his attempted transfer of the employee benefit funds.

His presentence investigation report calculated is guideline range based on the intended loss of $1,185,863.00 which was the amount that he attempted to transfer to the foreign bank. The presentence report gave him some credit for the funds still remaining in the pension fund. The district court rejected his argument that he should receive credit and for the amount he paid out of the bond to satisfy his pension related obligations to in his ex-wife under the asset allocation order. Credit for this amount would have reduced his sentencing guideline range significantly but the district court refused to give them credit.

The 11th Circuit found that he should not be given credit for the bond posted to pay his ex-wife because in his case the sentencing guidelines required that the calculation be based upon the intended loss which was the amount the defendant attempted to transfer to the foreign bank. It rejected his argument that his guideline should be reduced by the amount his wife received from the bond posted after he appealed from the divorce order. While the guidelines provide that a loss they would be reduced by the money returned by the defendant, the credit-against-loss is not available where the guideline range is based upon intended loss alone. It is also not available here because there is no victim in the case of an intended loss. The 11th Circuit also rejected the defense argument that the wife became a victim because her property interests was imperiled by the attempted overseas transfer. The court found the overseas transfer attempt took place long before his wife was due to receive the funds, which she eventually received from the supersedeas bond.

The entertaining opening paragraph of this opinion written by Judge Carnes is worth the read.

No second bite at the apple for crack cocaine defendant originally sentenced with career offender status

May 16, 2014,

In U.S v. Tellis, the Defendant pleaded guilty to selling crack cocaine in October of 2001. The presentence investigation report designated him as a career offender giving him an offense level of 37 under the sentencing guidelines, but because of the amount quantity of crack cocaine his base offense level became 38 under the drug quantity table of the federal sentencing guidelines manual. The drug offense quantity level of 38 was higher than the career offender level so his career offender status did not impact his offense level. For that reason, his sentence was based on the drug quantity and not his status as a career offender. The federal judge in Florida reduced his offense level to 32 after giving reductions for acceptance of responsibility and substantial assistance and then sentenced him to 210 months. The sentencing was not transcribed because the court reporter's notes were destroyed, but there was no dispute as to these reductions.

In 2007 the United States Sentencing Commission amended the guideline range providing for a two-level reduction in the based offense level for crack cocaine offenses. Known as amendment 706, it applied retroactively. As a result the defendant's offense level was reduced from a level 38 to a level 36 for his offense. The defendant moved for a sentence reduction under the new calculation. This time however the starting point was offense level 37 and not at a level 36 because of his career offender status, giving him an offense level 31 after acceptance and substantial assistance reductions.

In November 2011 the sentencing commission again amended the guidelines for crack cocaine. This time the defendant's based offense level fell to a level 34 instead of the original level 38. The defendant again moved to reduce his sentence, but this time probation office found he was not eligible for a sentence reduction because of his status as a career offender. The defendant argued in this appeal that he should be eligible for the reduction because the record was not clear that he was considered a career offender and the initial sentence. The court of appeals rejected his position because it found that the record was clear he did have a career offender status. And also found that when he received the reduction in 2008 the defendant had stipulated to a sentence modification that was calculated based of his career offender status.

He also argued that the career offender status should not apply because his original sentence was based the drug quantity and not career offender range. By relying on the career offender provision at this point, it would constitute a resentencing as opposed to a sentencing modification. The court of appeals rejected this argument finding that at his first sentencing reduction the court made a determination that his original sentence was as a career offender and only modified his sentence based on his career offender status. It found there was no alteration in the guideline range that applied at his original sentence. The court affirmed several prior unpublished cases in which it held that a district court lacked discretion to modify the sentence under amendment 750 after the a defendant with career offender status had previously received a sentence reduction under the earlier amendment.

No ineffective assistance because the defendant could not prove he would have pled guilty to the mandatory minimum sentence

May 15, 2014,

In Osley v. United States, the Eleventh Circuit rejected the defendant's section 2255 claim that his counsel failed to advise him he faced a mandatory sentence, because he had turned down a plea offer prior to trial that would have given him only 70 months. Osley was convicted of multiple counts commercial sex trafficking of a minor by means of force fraud and coercion, including a violation of 18 U.S.C. § 1591. Following the Miami federal criminal trial Osley was sentenced to 365 months and his sentence and conviction were affirmed. He filed a motion to vacate sentence pursuant to 28 U.S.C. 2255 claiming (1) his counsel was ineffective for failing to inform him of the mandatory minimum 15 year sentence for violating § 1591, (2) appellate counsel was ineffective for failing to challenge an obvious double counting violation of his sentencing guidelines, and (3) counsel failed to advise him he faced life term of supervised release.

Prior to trial his counsel discussed the possibility of a plea agreement. Both counsel and the prosecutor agreed that the guidelines calculation would be 97 to 121 months. At a status hearing held by the district court the prosecutor also informed the court there was no mandatory sentence under the sentencing guidelines and if found guilty he would be facing 97 to 121 months. The defendant had previously rejected a plea offer of 80 months. Osley chose a trial where the government's star witness was a 17 year old victim was a run-away from home who said Osley promised to buy her ticket to Miami and discovered that she would have to become a prostitute for him, and described how he threatened her with a gun because she did not bring in enough money. After the trial and an during the Presentence Investigation interview, the probation officer informed the defendant and his counsel that the statute had been amended by Congress prior to the date Osley violated the statute, making the penalty a 15 year mandatory minimum sentence. The PSI also recommended a four level enhancement for uncharged conduct, giving him a range of 210 to 260 months. The judge also imposed a variance up by three levels.

While the Eleventh Circuit had serious doubts about whether counsel's performance satisfied the standard of reasonableness required by the Sixth Amendment, it found that the defendant could not meet the prejudice pronged of Strickland. It rejected the Osley's claim that he would have taken the 15 year mandatory sentence had he known he was facing 262 months under the guidelines, because Osley had rejected the government's offer of 70 to 87 months. The 15 year deal that the defendant claims he would have taken was substantially more time than the deal he rejected. The court did not accept his claim that he would have taken 15 year deal even if he had known he would be facing a guideline range of up to 262 months. Furthermore, the defendant's denial of guilt was a factor in determining whether he would have accepted the government's plea offer.

The court found no ineffective assistance for failing to advise that the sentence carried a lifetime supervised release since the defendant was informed that the court could impose a maximum sentence of life in prison, and no ineffective assistance for failure to raise the double counting argument and because the court was not convinced that applying the four levels enhancement was error.

In my opinion this case should have been reversed because the defendant was not fully informed he faced an upside risk of 262 months. Knowing that risk would he have rolled the dice with a trial even though the plea offer was 180 months? Its seems he met the prejudice requirement.

Sentencing judge has no authority to reduce a restitution amount by the value of a forfeiture

May 9, 2014,

In U.S. v. Joseph, the defendant was convicted mail fraud and theft from the government for filing false income tax returns using false information. As a result of his committing this federal crime, the Internal Revenue Service actually disbursed $37,196. Before sentencing the government obtained an order from the district court entering a preliminary order of forfeiture under 18 U.S.C. § 3663A and 28 U.S.C. § 2461 for $29,514 in currency seized by government officials that were the proceeds of Joseph's fraud. Joseph objected to the presentence investigation report because it recommended restitution in the amount of $37,196 to the IRS without reducing by the value of the funds forfeited to the government. At the sentencing, the government argued that the defendant was not entitled to an offset and the district court seemed to agree but announced that the restitution would be offset by the forfeiture amount. Following the sentencing, the government noticed the sentencing judge that the restitution and forfeiture laws do not permit the district judge to offset restitution by the amount forfeited. It argued the discretion whether to apply the forfeited funds to restitution belonged to the government. The sentencing court later entered a written order that required Joseph to pay $37,196 restitution to the IRS and directed the forfeiture of $29,514. There was no mention of an offset.

On appeal Joseph argued the district court had the authority to offset restitution by forfeiture, and argued that the sentencing court's pronouncement at sentencing correctly intended to make the victim whole. The defendant relied on the rule that when an oral pronouncement of sentencing unambiguously conflicts with the judgment, the oral pronouncement controls. But the 11th circuit held that the rule does not apply here because the oral pronouncement was contrary to law. It found that under the language of the Mandatory Victim Restitution Act (MVRA) and the forfeiture act, the judge had no authority to offset the restitution amount by the forfeiture. The MVRA only permits a reduction for an amount later recovered for compensatory damages for the same loss by the victim in a civil proceeding.

In addition, the MVRA requires the court to order the forfeiture of property traceable to certain criminal offenses. The statute provides that the Attorney General has sole responsibility for disposing of petitions for remission or mitigation "or to transfer the property on such terms and conditions as he may determine, including as restoration to any victim of the offense giving rise to the forfeiture." A defendant is not entitled to offset the amount of restitution owed to a victim by the value of the property forfeited to the government because restitution and forfeiture serve distinct purposes. Restitution is compensatory for the victim and forfeiture is punitive. The district court has no authority to offset a defendant's restitution by the value of forfeited property except that the MVRA does allow for reduction of a restitution order for amounts "later recovered as compensatory damages for the same loss by the victim in" a federal or state civil proceeding. This only applies to compensatory damage awards recovered by a victim in a civil proceeding after the sentencing court enters a restitution order.