White Collar Criminal Defense Lawyer Blog

Published on: February 9, 2017

Categorical, generic, or modified categorical: It may be confusing but Florida’s burglary of a dwelling offense is not a crime of violence

In this case Garcia Martinez pleaded guilty to reentry after deportation in violation of 8 U.S.C. Sec. 1326(a) and his guidelines sentence was enhanced 16 levels by the district court who found his Florida conviction for second degree burglary of a dwelling, for which he was deported, was a crime of violence. He appealed the district court’s conclusion arguing that the facts of the Florida conviction for burglary of a dwelling as set forth in the presentence report do not qualify for a 16- level increase in his guideline range.

The court of appeals reversed after determining that the Florida statute does not fall under the enumerated offense clause definition for crime of violence under the sentencing guidelines.

The court arrived at this decision by first determining that the generic definition of the enumerated offense of burglary requires the unlawful entry into a building or structure with intent to commit a crime. However, the sentencing guidelines specifies that the offense must be a burglary of a dwelling. This required the court to determine the generic definition of a dwelling. It concluded a generic dwelling is a building or portion thereof, a tent, a mobile home, a vehicle, or other enclosed space which is used or intended for use a s a human habitation.

Published on: February 1, 2017

No Fourth amendment violation for injuries resulting from the excessive force use of a flashbang

by The Swartz Law Firm

The issues in Dukes v Deaton were whether a police officer who threw a diversionary device known as a “flashbang” into a dark room occupied by two sleeping individuals without first visually inspecting the room is entitled to qualified immunity against a section 1983 lawsuit claiming excessive force and whether the officer was entitled to qualified immunity against a complaint of assault and battery. Narcotics officers of the Clayton County Sheriff applied for a search warrant of Jason Ward’s apartment based on confidential informant’s information that he sold narcotics out of his apartment. The search warrant application noted that Ward was known to carry a handgun. The application sought a “no-knock” provision because “drug dealers commonly use weapons, dogs, and barricades to hinder law enforcement in the execution of their duties. Prior to execution of the warrant the SWAT team held an operational meeting to discuss the plan of entry. The Defendant and other SWAT members were given flashbang devices to uses. These are classified as explosives that can generate heat in excess of 2,000 degrees centigrade and over 150 decibels of noise for less than one-half second. Because they have the potential to cause serious bodily injury, the officers received official instruction to visually inspect an area first before deploying a flashbang.

The search warrant execution plan did not call for Deaton to deploy his flashbang, however the plan gave all SWAT team member the authority to use more flashbangs if needed. As the SWAT team executed the search warrant at 5:30 a.m., Deaton deployed his flashbang threw the bedroom window where Dukes was sleeping. The explosion caused Dukes to suffer severe burns and she spent three days in the hospital.

Dukes filed a complaint against Deaton and the Commander Branham alleging a violation of Duke’s right to be free from excessive force under the Fourth Amendment and a state law claim for assault and battery against Deaton.

The district court granted motions to dismiss finding the officers were entitle to qualified immunity against the excessive force and against the assault and battery claim and filed this appeal.

Published on: December 29, 2016

Limitations upheld in cross examining a cooperating witness about the sentencing guidelines

by The Swartz Law Firm

The appellants in U.S. v. Rushin were correctional officers at the Macon state Prison in Georgia who were charged and convicted of conspiracy to obstruct and obstruction of justice stemming from alleged abuses of prisoners and the subsequent cover ups while they were working as members of the Correctional Emergency Response Team, (CERT) which is a specially trained group responsible for responding to and controlling disturbances as the Macon State Prison. Of the three issues raised only one was addressed in depth by this opinion and that was whether the district court improperly limited the cross examination of cooperating witness in violation of the defendant’s Sixth Amendment rights. The case arose from the beatings of several inmates at the Macon State Prison by CERT members against certain inmates in retaliation for assaulting officers. The CERT members would then take the inmate to the medical unit and lie about how the inmates’ injuries were sustained.

Multiple members of the CERT entered plea agreements and cooperated with the government by testifying at trial. The defense counsel wanted to cross-examine the cooperating witnesses about their potential sentences had they not cooperated. The government requested a limitation on the defendants cross examining witnesses about to the specific numerical sentence that could have been imposed had they not cooperated as this would speak to the potential sentences that could be received by the defendants and encourage jury nullification.

The district court granted this motion explaining that the defendants were permitted to inquire into whether the cooperating witnesses about a plea agreement, that they face a more severe penalty prior to cooperating, and that the witness received or expected to receive benefits in exchange for their testimony (charges dropped or consideration of a sentence reductions). However, the defendants’ attorneys were not permitted to inquire as to the statutory sentencing range for charges against cooperating witnesses.

Published on: December 21, 2016

Case dismissed for Speedy Trial Act violation but the defendant could still be prosecuted again

by The Swartz Law Firm

Ammar was convicted and sentenced to life following trial for robbery, conspiracy to commit robbery and using or carrying a firearm in relation to a crime of violence. In United States v. Ammar he challenged his conviction contending that the district court should have dismissed his indictment pursuant to the Speedy Trial Act. The Sixth Amendment of the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial. To enforce this provision Congress passed the Speedy Trial Act which provides that the trial must begin within 70 days of either the filing of the indictment or the date the defendant first appears before a judicial officer to answer the charges, whichever occurs later. If a defendant is not tried within that window of time then the district court must grant the defendant’s motion to dismiss the indictment.

A district court may grant a continuance of the trial date when the ends of justice support the continuance and the district court is required to say its reasons for finding that the ends of justice served by the granting of a continuance outweigh the best interest of the public and the defendant in a speedy trial. Furthermore a defendant’s agreement to waive the protections of the Act cannot by itself justify an ends of justice continuance because the public interest in a speedy trial is also protected by the Act.

Ammar was detained following his arrest without a bond. Soon after the district court held a scheduling conference with the defendants and scheduled trial to begin about one year later. Ammar appealed the magistrate’s detention order contending that the district court set an extended trial date over his objection and that the extended detention pending a trial more than a year from the date of the indictment violated his due process and speedy trial rights. Prior to trial Amar filed his motion to dismiss on speedy trial grounds.

Published on: December 19, 2016

The manner of seizure for a mental health evaluation violated the Plaintiff’s fourth amendment right

by The Swartz Law Firm

Phyllis May was involuntarily taken to a hospital police officer Tommy Allen of the City of Nahunta, Georgia Police Department for a mental health evaluation. She subsequently sued pursuant to 42 U.S.C. 1983 for an unlawful seizure in violation of the Fourth and Fourteenth Amendments. May took this appeal from the district court’s order granting Officer Allen’s motion for summary judgment on the basis of qualified immunity. The issue in May v. City of Nahunta, Georgia is whether an otherwise authorized mental-health seizure was converted into an unconstitutional one by virtue of the seizing law enforcement officer’s conduct.
May was the sole care taker for her Alzheimer-stricken mother fell into a deep sleep after a taxing few days of caring for her mother. When May’s brother was unable to rouses May from her sleep he called 911 and four emergency medical technicians arrived in response. Officer Allen also arrived at the residence in response to the 911 call requesting his assistance and was told information by the EMT and his observations, he decided to seize May in her bedroom and transport her to the hospital for a psychological evaluation.
In conducting the mental health seizure Officer Allen asked the EMTs to leave the room and locked the door behind and informed May that she was going to the hospitals and instructed her to change from her nightgown to more suitable clothes. Despite her urging he refused to leave while he changed, handed her clothing, touched her shoulder roughly in an effort to pull off her nightgown, instructed her to remove her shorts and first put on her undergarments, and when she refused he insisted that she will while patting his gun. Officer Allen remained in the locked room alone with May for 15-20 minutes while ignoring May’s sister’s request from the other side that he open the door.
After she was taken to the hospital where she spent two hours she was released when it was determined there was nothing wrong with her.

Published on: December 13, 2016

Lawsuit against Douglas County Sheriff not barred by qualified immunity

by The Swartz Law Firm

In Bailey v. Wheeler, the court reviewed the district court’s decision denying the defendant, Wheeler, qualified immunity protection in a section 1983 action by Bailey. Here is how the facts unfold. Bailey, an officer for the City of Douglasville, Georgia, filed written complaint with his chief reporting that police officers from his department and from the Douglas County Sheriff’s Office were racially profiling minority citizens and committing other constitutional violations. Bailey complained that law-enforcement officers made racially offensive comments and jokes about minorities. Eventually repercussions of Baileys’ complaints followed and soon after he was terminated from his position with the police department. He appealed his termination to the City of Douglasville complaining that he was fired for speaking out against profiling and other unconstitutional conduct by the police department and the Sheriff’ Office deputies. The night the city held a hearing he was followed by two deputies that stared him down. The next day Major Tommy Wheeler of the Douglas County Sheriff’s Office issued a county-wide alert to all law-enforcement officers warning that Baily was a “loose cannon” who presented a danger to any law enforcement officer in Douglas County and directing officer to act accordingly. He issued a BOLO with his picture. For the second day in a row law enforcement vehicles from both the Sheriff’s Office and the Police Department followed Bailey as he drove his personal car. About three weeks later Bailey was permitted to return to work at the Douglasville Police Department.

Bailey filed a lawsuit claiming a violation of 42 U.S.C. §1983 for retaliation for exercising his First Amendment rights and a claim that Wheeler had defamed Bailey under Georgia law. The district court denied Wheeler’s claim he was entitled to qualified immunity and filed this appeal.

Published on: November 28, 2016

Conviction for the failure to file a file Currency Transaction Report upheld.

by The Swartz Law Firm

In U.S v. Leon, Leon appeals from her conviction following a jury trial of three counts of attempting to cause a financial institution to not file a required currency transaction report (a CTR) in violation of 31 U.S.C. § 5324(a)(1). On appeal Leon claimed that the government and the district court constructively amended the indictment allowing her to be tried and convicted of violation §5324(a)(3) and not §5324(a)(1). The indictment alleges that Leon knowingly willfully and for the purpose of avoiding federal reporting requirements attempted to cause Bank of America not to file required CTRs concerning currency transactions exceeding $10,000 while violating another federal law and as part of a pattern of illegal activity involving more than $100,000 in a 12-month period. She was charged with making five cash withdrawals in the amounts of $9,500, $5,500, $1,430, $1,000 and $400. Another count charge her with making three cash withdrawals in amounts of $6,000, $3,995 and $500. And two cash withdrawals in the amounts of $9,846 and $300. The indictments alleged that these withdrawals, when aggregated on a daily basis, triggered Bank of America’s obligation to file CTRs and that Leon make the withdrawals in amounts less than $10,000 to try to cause Bank of America to not file CTRs.

Leon contended that the government’s theory and evidence as well as the district court’s jury instructions constructively amended the federal criminal indictment by allowing her to be convicted of violating §5324(a)(3) instead of §5324(a)(1). She claimed that the offense of structuring is prohibited by §5423(a)(3) but not by §5423(a)(1). Building on this premise Leon argues that there was a constructive amendment allowing her to be convicted of uncharged §5342(a)(3) offenses because the government repeatedly use the term “structuring” when referring to the three counts.

Published on: November 18, 2016

No Speedy Trial violation for six day delay even though the court did not make factual findings for the continuance

by The Swartz Law Firm

In this appeal, Hughes was charged with knowingly possessing a firearm and ammunition as a twice convicted felon. Witnesses at a bar told police he was brandishing a gun and a police officer retrieved a gun from a trash can in the vicinity of the spot Hughes had stood. Fingerprints were found on the gun but were not linked to Hughes until almost two years later when the police ran them through a law enforcement fingerprint identification system matching Hughes’ prints to the gun. Following his arrest the government filed a motion to detain Hughes pending trial. Hughes’ attorney requested a six day continuance which was granted by the judge but did not make any factual findings or give any reasons for granting Hughes’s request for a continuance.

Prior to the trial Hughes moved to dismiss his indictment for a violation of the Speedy Trial Act arguing that the period of delay resulting from the court granting of a continuance was only excludable if the court stated in the record the reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

During trial the trial judge allowed the government to offer in evidence the Computer Assisted Dispatch (CAD) report as a business record. Hughes challenged its admission because the report contained hearsay and violated his right under the Confrontation clause of the Sixth Amendment since he had no opportunity to cross examine the anonymous 911 caller documented in the CAD report. Hughes also raised a Batson challenge to the government’s strike of the only African American member of the venire. Hughes challenged a jury instruction that allowed the jury to find that if it found the defendant gave a false statement to the police in order to divert suspicion from himself, the jury could infer he was guilty.

Published on: November 10, 2016

Illegal sentence imposed where the court considered the failure to pay full restitution

by The Swartz Law Firm

In U.S. v Plate the defendant worked at Wells Fargo in Orlando Florida as a financial advisor. One of her long time clients was an elderly couple for whom she managed their securities and bond portfolio. She became close friends with the couple. As their mental capacities diminished with age Plate began to perform personal duties for the couple beyond the traditional financial advisor role. After Plate’s husband died, she eventually induced the husband to execute a Wells Fargo ACH authorization agreement allowing for the transfer of funds from the couples’ Wells Fargo trust account into a separate account. Plate manipulated the husband into writing her personal checks and then she liquidated the securities in the trust account by making a number of unauthorized sales. In total she defrauded the couple of $176,079 and left noting in the account.

She was charged with a single count of embezzlement by a bank officer in violation of 18 U.S.C. § 656 and pled guilty to the offense. The PSI came back with a guideline range of 27-33 months. Prior to sentencing Plate filed a memorandum asking for a probation sentence and to show remorse she sold her house to pay restitution and expressed determination to pay everything back. She argued probation was appropriate because her crime was an anomaly brought on by depression and reduced mental capacity following the death of her husband. To support her position she attached a forensic evaluation by a licensed psychologist who concluded that she had developed a maladaptive coping style of avoidance characterized by apathy and impaired emotional understanding and reduced mental capacity brought on by the loss of her husband.

Published on: November 3, 2016

Tasing a suspect while in handcuffs was excessive force in violation of the Fourth Amendment

by The Swartz Law Firm

In Wate v Kubler, a Civil Rights lawsuit for the wrongful death of Barnes, it began when Barnes went with his aunt to the Honeywell Island Beach in Pinellas County, Florida for a baptismal ritual in the water along the Beach. While in the water Barns began acting erratically by flailing, flopping, and thrusting his arms and body and yelling loudly about a demon. His actions attracted the attention of a law enforcement officer on the Honeywell Island that day. When Barnes failed to comply with the officers’ order to calm down and leave the water, a struggle ensued and the officer placed a handcuff on one of his hands. More struggling occurred resulting in the officer placing Barnes in a choke hold and dragged him out of the water by his head.

Barnes was just lying on the beach with the officer kneeling beside him as the officer tried to secure both hands with the handcuffs. The officer continued to hit him as he attempted to place the other arm in handcuffs. After the handcuff was secured Barnes spewed blood and fluids from his mouth and struggled to breath. When Barnes continued to struggle the officer pepper sprayed his eyes and hit his face multiple times.

Another officer Kubler, arrived on the scene in response to the first officer’s call for help. At this point eyewitnesses stated that when the first officer had Barnes pinned down, Barnes was starting to wear down and that the situation was under control. Witnesses testified that Kubler stood over Barnes and put his foot on his buttocks and Kubler put his knee on Barnes’ back and that Barnes was immobilized. After warning Barnes not to raise up (witnesses say he was arching his back when the officer’s foot pressed against his buttocks) Kubler threatened to taser Barnes and after he struggled Kubler deployed the taser a few minutes later. Kubler used the taser a total of 5 times. Barnes became still and another officer on the scene noticed Barnes was not breathing. Two days later Barnes died. The autopsy showed case of death to be asphyxia contributed by blunt trauma and restraint.