Articles Posted in Drug crimes

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In U.S. v. Louise, the Customs and Border Protection (CBP) was tipped off that the Ana Celia, a coastal freighter used to export goods from the United States to Haiti, was returning from Haiti to Miami carrying narcotic drugs. While the boat was docked in the Miami port, CBP agents set up surveillance of the boat. At one point the agents watched as a forklift picked up boxes from the boat and that were driven off the boat. The owner of the boat, Ernso Borgella, directed the forklift driver to place on the dock. Later a Nissan car which pulled up and Borgella told the driver to pull the car to park near the boxes. Two unidentified men loaded the boxes into the back seat of a white Nissan and Louis began to drive slowly out of the shipyard while Bogella walked alongside. After driving past the front gate of the shipyard the Nissan was stopped by law enforcement vehicles with lights and sirens. Louis exited the car and began to run. The agents found that the boxes in the back seat contained 111 bricks of cocaine.

Louis was charged with conspiracy to possess with intent to distribute cocaine and with possession of cocaine. After a two-day federal criminal trial the jury found Louis guilty on both counts and the district court denied his motion for an acquittal. In this appeal Louis challenged his conviction arguing that the court should have found the evidence was insufficient to find he conspired to distribute drugs.

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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 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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In U.S. v Vargas the defendant was charged with conspiracy to possess with intent to distribute and possession of cocaine after Alabama law enforcement officers discovered cocaine and methamphetamine in Vargas’ vehicle. Vargas filed a motion to suppress on the grounds that Vargas’ traffic stop that led to the discovery of the drugs violated Fourth amendment.

Here, Alabama law enforcement officer pulled over the defendant for following too close and failing to maintain its lane. The driver immediately admitted that he did not have a driver’s license. The officer asked him to come back to the officer’s car where the officer asked him routine questions about where he was going. After about three minutes the officer informed him that he was issuing him a warning for following too close. He continued to ask defendant some questions to complete the warning. He then approached the passenger to determine whether he could operate the vehicle. When the passenger said he did not have a license, the officer spent another 12 minutes working with the two in an attempt to determine how to safely and legally get the car moved. About 18 minutes into the traffic stop and 15 minutes after the enforcement officer informed he was issuing a warning, the officer asked the defendant for consent to search the vehicle and the defendant consented. The search turned up the drugs hidden in the vehicle.

The defendant contended on appeal that the length of the traffic stop violated the fourth amendment. The court cited the Supreme court’s opinion in Rodriguez v United States which states as a general matter a traffic stop exceeding the time needed to handle the matter for which the stop was made is a violation of the Constitution’s shield against unreasonable seizures.

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In U.S. v. Votrobek the appellants were convicted by a jury of conspiracy to distribute drugs, conspiracy to launder money and substantive charges of money laundering and maintaining a place for unlawful drug distribution.   The charges arose from their operation of a pill mill, a term used to describe a medical clinic that prescribes narcotics for illegitimate purposes. The appellants first learned how to run a pill mill clinic from a Zachary Rose who operated three clinics in Jacksonville Florida. Once law enforcement began investigating Rose’s clinics, the appellants left and established their own clinic, AMG, in the fashion of a typical pill mill.

Later, Votrobek was indicted for conspiracy to distribute Oxycodone and Alprazolam in Rose’s Florida clinics but a jury acquitted him.

Less than two months after his acquittal in Rose’s Florida pill mill, a Federal Grand jury in Georgia indicted Votrobek and others regarding their involvement in AMG, charging them with conspiracy to distribute Oxycodone, Xanax, and other drugs for other than a legitimate medical purpose. He was convicted on all counts. In his appeal, he claims the district court committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds. He argued the conspiracy counts were barred by Double Jeopardy and the trial court committed plain error by not dismissing the substantive convictions based on prejudicial spillover.

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In the Iguaran appeal, the defendant pled guilty to one count of conspiring to distribute cocaine while on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act 46 U.S.C. section 70503(a)(1). On appeal, the defendant challenged the district court’s jurisdiction arguing that the court did not have subject matter jurisdiction because the record does not establish that the vessel in which he was apprehended was subject to the jurisdiction of the United States. The government argued in opposition that the case had to be reviewed by appellate court for plain error because Iguaran did not raise his jurisdictional objection in the district court. The appellate court rejected the argument finding that the district court’s subject matter jurisdiction is a question of law that must be reviewed de novo even when it is raised for the first time on appeal.

To be convicted of conspiracy to distribute a controlled substance under this statutes the government must show that vessel was when apprehended subject to the jurisdiction of the United States. Various circumstances render a vessel subject to the jurisdiction of the United States, including a vessel without nationality. This includes a vessel in which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for the vessel. If Iguaran and his coconspirators failed to make a claim of nationality, their vessel was without nationality and subject to the jurisdiction of the United States.

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In U.S. v. Hollis, the court of appeals is required to decide whether the subject of an arrest warrant may challenge the use of evidence found in plain view during a protective sweep in a third party’s residence.

In February 2011, Officers were searching for Hollis based on an outstanding Georgia arrest warrant for parole violation. In March 2011 officers surrounded an apartment alleged to be a drug house. Hollis peered out from behind the window, and the officers recognized him. The officers yelled “police” and ordered Defendant to open the door. After waiting, the officers used a battering ram to open the door and arrested Hollis. Other officers sweep of the area. They found a cosmetic bag with marijuana on a dresser, weapons under a bed, and marijuana on the kitchen counter. The officers then obtained a search warrant for the premises, in a thorough search of the apartment, they discovered about a pound of cocaine, large amounts of marijuana, crack cocaine, ecstasy, scales, and about $5,000 in cash. One of the scales had a latent fingerprint on it, latter attributed to Hollis.

A Federal grand jury indicted Hollis on two counts of possession of a controlled substance with intent to distribute, one count of possession of a fire arm in furtherance of a drug trafficking crime, and one count of felony possession of a firearm.
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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.

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Reeves and five codenfendants in U.S. v. Reeves were convicted following a nine day trial of federal drug charges including conspiracy to distribute more than five kilograms of cocaine, possession of more than 50 grams of crack cocaine, and possession of a firearm by a convicted felon. The indictment followed nearly one year of investigation by the Georgia Bureau of Investigation and the Drug Enforcement Agency into the drug activities of individuals involved in drug distribution in the area of Baldwin County, Georgia. Agents used video surveillance and court ordered wiretaps to determine that numerous coconspirators were involved in large scale cocaine distribution network starting from a Mexican supplier of large quantities down to low level distributors of small quantities.

Reeves challenged his conspiracy conviction arguing that the facts showed he and his coconspirators were not part of a single criminal agreement but rather he just bought and sold cocaine in the ordinary course of several discrete agreements. The court rejected his arguments finding that he regularly purchased from one coconspirator and repeatedly sold to the same street-level distributors was more than adequate evidence for the jury to find a single overarching conspiracy to possess with intent to distribute cocaine. Reeves’ codefendant wife argued the evidence was insufficient to convict her of the conspiracy particularly because there was no evidence she personally distributed drugs. The court of appeals disagreed on the basis of the tape recorded telephone conversations presented at trial showing her knowledge of the cocaine conspiracy. Those conversations showed that a reasonable jury could find that the wife knew there was cocaine hidden in the house, that she agree to dispose of it after coconspirator was arrested, and that she tried to conceal the conspiracy by falsely tell the police that her codefendant husband lived at another address.

Another issue the wife raised was the admission of telephone recordings without proper authentication. The court of appeals found there was plenty of evidence establishing her voice on the recordings, including testifying on her own behalf in which she acknowledged speaking on the phone and identifying her own voice.

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The defendant in U.S. v. Salgado was indicted and convicted of the federal crimes of drug conspiracy, money laundering conspiracy, and possession with intent to distribute as least one kilogram of heroin. Prior to sentencing the presentence investigation report (psi) calculated his guidelines sentence range by grouping his convictions together under USSG § 3D1.2(c) because the drug conspiracy and distribution offenses were “the underlying offenses from which the laundered funds were derived.” The psi used the money laundering guideline, USSG § 2S1.1 to determine the defendant’s base offense level. To calculate the offense level under § 2S1.1, the psi set his base offense level using the guideline for the underlying conspiracy to distribute heroin. Under the facts of this case it came to a level 34. It then determined that certain enhancements applied under § 2S1.1, including a role enhancement, for his role in the heroin transactions that qualified him as a manager, leader or supervisor.

The issue in this appeal was not whether Salgado’s role in the heroin distribution conspiracy made him a manager, leader, or supervisor. Instead, the issue was whether the district court misapplied the guidelines by using Saldgado’s conduct in the underlying drug conspiracy to impose a role enhancement when calculating his offense level for money laundering under USSG § 2S1.1(a)(1).

According to §1B1.5(c), if the offense level adjustments is determined by reference to another guideline, the Chapter Three adjustments also are determined in respect to the referenced offense guideline “except as otherwise expressly provided.” This means that where a guideline determines a defendant’s offense level by reference to another offense, the Chapter Three adjustments are to be based on the guideline and rules for that other offense. But the 11th Circuit pointed out that this is a default rule because the “except as otherwise” provided language. Application note 2(c) of § 2S1.1 is one of the otherwise provided exceptions. It instructs courts that when setting an offense level under § 2S1.1(a)(1), a court should make Chapter Three adjustments based on the defendant’s conduct in the money laundering offense itself, and not based on his conduct in the offense from which the money that was laundered was obtained. This meant that when the district court calculated Salgado’s offense level under § 2S1.1(a)(1), it could base his role enhancement on conduct in the money laundering conspiracy but not on his conduct in the underlying drug offense.