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Doyle pled guilty to distribution of more than fifty grams of cocaine bade and was facing a 10 year minimum sentence and up to live imprisonment. After calculating his advisory guidelines rant of 262 to 327 at sentencing the district court asked his counsel if she had anything to say before the sentence was imposed and she used the opportunity to argue successfully for a sentence at the low end of the advisory guidelines range. The court did not ask Doyle himself if he wished to make a statement or to allocate as required by the Federal Rules of Criminal Procedure. Doyle’s counsel did not object. Doyle later filed a pro se motion to vacate pursuant to 28 U.S.C. section 2244 claiming that he had asked his former counsel to file a direct appeal but that she had failed to do so. The district court granted his 2255 motion with respect to his failure to appeal claim and the court ordered the remedy spelled out in U. S. v. Phillips, which requires vacating the original sentence and resentencing him to the same sentence as before, so it can be reviewed on appeal. It does not reopen the sentencing. The same sentence as before was imposed.

The sole issue for the appellate court was whether Doyle’s sentence must be vacated because his right to give allocution, as embodied in the Federal Rule of Criminal Procedure 32 was violated. In the pre-Booker era, the court of appeals presumed prejudice from the district court’s failure to ask a defendant if he had anything to say before sentence was pronounced, except where the defendant was sentenced at the low end of the applicable mandatory guideline range. The question here is whether that low-end exception to a presumption of prejudice still applies in the post-Booker advisory guideline era.

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In U.S. v. Shalhoub the court addressed the issue of whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order. If not then the issue becomes whether the court should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear.

This is how the facts unfold. Shalhoub, a citizen and resident of Saudi Arabia married a woman in Miami in 1985 and divorced four years later. A Florida judge gave Shalhoub and his ex-wife full shared parental responsibility over their only child. Shalhoub was indicted in 1997 for one count of parental kidnapping in violation of the International Parental Kidnapping Crime act, which made it a crime to remove a child from the United States with intent to obstruct the lawful exercise of parental rights.   He was never arrested and status was fugitive.

In 2015, Shalhoub filed a motion in Miami federal criminal court to allow his counsel to appear specially and seed a dismissal of the indictment arguing that the incitement lack factual specificity, challenge the Venue of the federal kidnapping law as contravening the laws of Saudia Arabia, along with other challenges.

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A three-judge panel was reversed in U.S. v Roy by the En Banc court and the defendant’s conviction in federal court in Miami was reinstated for reasons explained below.   Here is what happened at the trial.

Roy was charged in a five-count indictment with sext crimes related to minor girls. Count one charged him with attempting to enticed a child base on his efforts to arrange a sexual encounter with someone he believed to be a 13-year-old girls in response to an interne ad posted by law enforcement. The other counts involved child pornography and charged him with knowingly possessing visual depictions of child pornography in violation of the federal statute. Each of those counts involved images that were stored in different electronic devices he kept. The charge required that the government prove that under each of the counts he knowingly possessed one or more images of child pornography on the electronic devices.

The issue here, which was the reason for the panel’s decision to overturn the conviction, involved Roy’s federal trial lawyer’s absence during a small a portion of the testimony of the trial.

The En Banc Court concluded that it was a Sixth Amendment constitutional violation for the trial judge to start the trial without the attorney present, but that the error was harmless beyond a reasonable doubt because of the overwhelming evidence offered while counsel was present that went to and proved the charges in counts 2 through 5, which were the only counts relevant to the testimony given during counsel’s absence. The error in the trial took place when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial.

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In U.S. v Doran, Dr. James Doran was convicted under 18 U.S.C. 666 of embezzlement form the Florida State University (FSU) as an organization receiving federal funds. He argued on appeals that he is entitled to a judgment of acquittal because any embezzlement was not from FSU and that the government did not prove that the victimized organization under the statutes was a recipient of federal benefits. Under the federal statute it is a federal crime for and agent of an organization to embezzle or convert to the use of any person other than he rightful owner any property valued at $5,000 or more that is owned or in the custody of that organization, government, or agency. The provision also requires that the organization, government or agency receive in any one year period benefits in excess of $10,000 under a federal program involving a grant contract subsidy, or other form of federal assistance.

The facts as they unfolded at trial showed that Doran was a professor in the College of Business of FSU and was a director and officer of the Student Investment Fund (SIF) a non-profit corporation established by FSU for charitable and educational purposes. He had a signatory authority over the SIF bank account. During his tenure he transferred SIF money from the SIF accounts to his own personal account. This embezzlement was discovered after an investigation.   He was charged in an indictment that alleged he embezzled funds or property from FSU which it described was the recipient of federal benefits.

On appeal he challenged his conviction on the grounds that the SIF was the victimized organization under section 666 but that it received no federal benefits. He maintained that SIF and FSU are separate entities. The government’s response was that the embezzlement by Doran came within the ambit of section 666 because the SIF was closely affiliated with FSU which did receive millions of federal dollars and that Doran was a FSU professor and an agent of FSU when he committed the crime.

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The Horners were convicted of two counts of assisting in the preparation of a fraudulent corporate tax return in violation of 26 U.S.C. 6206 and filing a false individual tax return in violation of 26 U.S.C. 7206. This couple owned and operated Topcat Towing and Recovery, Inc. an S-corporation, in Lithonia, Georgia. Because Topcat required customer to pay in cases for most of its services, the Horners deposited approximately $3 million in cases into several business accounts in various banks as well as in personal accounts. They did not tell their tax preparer H&R Block about any of the cash deposits into their personal accounts. The IRS investigators concluded that theses person cash deposits were actually diverted Topcat receipts which means the defendants underreported Topcat’s income as well as their own income. On this evidence, the defendants were indicted.

One issue raised on appeal was the resulted from the testimony from IRS Agent Owns who examined their tax returns and testified regarding what she calculated as their correct tax liability. In her estimation, they owed an additional $474,147 over a four-year period.   Her calculation did not account for any business expenses the Horners may have paid from their personal accounts but that they did not claim as a reduction. In her cross examination she said that such unclaimed deductions would reduce the Horners unreported income tax liability, but that it would not have a “really big impact” and would still leave “a substantial understatement.” When calculating the amount of tax due during the sentencing phase, the trial court ultimately accepted a figure of unclaimed business expense deductions which reduced the unreported income in the relevant periods by approximately one-third.

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In U.S. v. Osman, the defendant appealed his restitution order following his guilty plea to one count of production of child pornography, one count of distribution of child pornography and one count of possession of child pornography. On six occasions Osman sexually abused an molested his approximately one-year-old daughter and used his cell phone to photograph his sexual abuse. He sent some of the child pornography images he had created to another individual in exchange for other child pornography images. When Department of Homeland Security executed a search warrant at Osman’s residence he admitted to using the internet to search or child pornography. A forensic examination of his electronic services revealed at least 94 movies and 588 images of child pornography that included his daughter.

After a grand jury indicted him with possession, production, and distribution of child pornography. As part of his plea he agreed to make full restitution to his daughter under the Mandatory Restitution for Sexual Exploitation of Children Act 18 U.S C. 2259.

At the restitution hearing Osman argued the government’s estimate of A.E.’s future counseling needs was speculative given her very young age. The government’s position was that any estimate of damages and further counseling needs would be speculative to some extend in a case involving an infant victim but nevertheless asserted restitution was appropriate. The government used a licensed counselor who specialized with child victims of sexual abuse and testified about her experience involving victims of child sexual abuse and working with children at various developmental stages. She acknowledged her estimate about A.E.’s future need would be based on prediction about the care she would likely need and was in some sense speculative but her opinion was based on many years of research about the consequences of early adverse life events and her extensive experience counseling victims of abuse.

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In Stephens v. DeGiovanni, the Plaintiff Stephens filed a lawsuit against Deputy DeGiovanni of the Broward County Sheriff’s Office arising out of his arrest. Two of his claims raised in this appeal for false seizure (arrest) and excessive force pursuant to 42 U.S.C. §1983. In this appeal to the Eleventh Circuit court of appeals, Stephens challenged the trial court grant of summary judgment to the deputy on the false arrest claim there was probable cause for the arrest. The trial judge also granted summary judgement on the excessive force claim because the force used in the arrest was de minimis.

The facts surrounding this arrest took place on February 16, 2009 in Fort Lauderdale, Florida in an apartment complex where Stephens and his cousin were guests of the cousin’s girlfriend, Claudia White. White’s apartment was on the second floor of a complex with businesses on the first floor and apartments on the second floor. Stephens and his cousin were checking on a car owned by Stephens girlfriend that she was planning to sell to White. White, who is a car mechanic, was sitting on the metal frame of the care using a diagnostic scanner to determine why a check engine light had come on.

Deputy DeGiovanni was on road patrol at 8:15 pm and aware of recent burglaries in the area. Because it was late and all the businesses were closed he decided to investigate so he approached and asked what they were doing. After they explained what they were doing, the deputy informed them that they were not supposed to be there. They explained they were invited guest of White who lived at the complex. The deputy asked for identification and Stephens produced a State of Florida identification card. He possessed a driver’s license issued in Jamaica where was from. While standing by the deputy Stephen’s phone rang. When he answered it the deputy slapped it away. When Stephens asked the deputy to get a field supervisor on the scene, the deputy told him to shut his mouth. The deputy then slugged Stephens in his chest slamming him into the driver’s seat. The deputy proceeded to hit Stephens two more times causing injury to his hand and arm.

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McCullough was arrested and convicted for marijuana distribution. His conviction was affirmed by the Eleventh Circuit Court of Appeals in United States v. McCullough. This is how the facts unfold. He was initially pulled over by an Alabama police officer for driving with a partially obscure license plate. While the numbers on the Alabama issued plate were visible, a license bracket in the shape of an eagle with outstretched wings obscured pares of the license plate including the state of issue. Alabama law provides that every motor vehicle operator shall at all times keep the license tag or license plate plainly visible on the rear end of a mother vehicles. The officer stopped McCullough because the officer believe that he had violated this law by having the eagle bracket. When McCullough was stopped, the officer issued him a ticket for failing to have a plainly visible license plate.

The officer then smelled marijuana coming from the inside of the truck and a search of the truck led to the discover of $8,335 and a marijuana. After the officer seized $4,000 and a key to a hotel room, the officer obtained a search warrant for the room and found $1,000, bags of marijuana and a gun.

He was charged with possession with the intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm. He moved to suppress on the grounds the officer lacked probable cause or reasonable suspicion to stop him for partly obscuring the license plate because Alabama law only requires that the alphanumeric symbols be visible not the full license plate. The district court denied the motion. He pleaded guilty to each count before a magistrate judge. Prior to sentencing the probation officer calculated the guideline range to be 262-327 base on his status as a career offender with a career history e category of VI and a consecutive mandatory minimum of five years for being a felon in possession of a firearm.

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In United States v. Bergman the defendants were convicted following a jury trial of conspiracy to commit health care and wire fraud, paying bribes and kickbacks in connection with a federal health care benefit program. Bergman was sentenced to 180 months and the other defendant was sentenced to 150 months.

Bergman was a licensed physician’s assistant employed by American Therapeutic Corporation that operated a Partial Hospitalization Program (PHP). A PHP serves as a bridge between inpatient and outpatient care for patients with a psychiatric condition serious enough to possibly require hospitalization. A community mental health center such as ATC administers a PHP, which offer intensive outpatient psychiatric care including individual or group psychotherapy, counseling and other mental health services. Staff at a PHP includes psychiatrists as well as nurses, physician’s assistants, occupational therapists, physical therapists and social workers.

After ATC was founded it developed into an extensive Medicare scammed billed Medicare for approximately $200 million in claims. While ATC did have some patients who needed psychiatric help and qualified for service, most did not and ATC did not provide the individualized treatment required by Medicare. Doctors that came in generally did nothing.

In this case the defendants created fake medical records and recruited patients in exchange for kickbacks. ATC paid its patient recruiters hundreds of thousands of dollars each month in cash in order to avoid any red flags or paper trail. They even kept a log of kickbacks paid.

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In this appeal the Eleventh Circuit court of appeals reversed a federal court’s order denying the defendant’s motion to vacate his sentence pursuant to 28 U.S.C. 2255.  In Phillips v U.S., the defendant had been charged with numerous drug related offenses and with being a felon in possession of ammunition. A jury convicted him on one count of conspiracy to distribute less than five grams of crack cocaine, one count of crack cocaine distribution, one count of cocaine possession, and two counts of possession of ammunition after a prior felony conviction.

Following the filing of the defendant’s 2255 and while it was pending, the government discovered that Agent Michael Ghent an officer with the West Palm Beach Police Department had lied at trial, during the investigation and that he had been under investigation by his own police department for alleged criminal activities. Other investigations showed he had engaged in a sexual relationship with his CI, used illegal substances and provided false information in various government forms and submitted a false affidavit in a state criminal prosecution.

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