Drug crimes

Published on: December 1, 2020

RICO is not a crime of violence for a 924(c) gun possession offense

A group of brothers, relatives, and friends who operated a drug trafficking organization in Bradenton, Florida, were charged and convicted of participating in a RICO conspiracy, a drug conspiracy, and gun crimes. The defendants raised two issues in this appeal. First, whether the RICO conspiracy qualified as a crime of violence under 18 U.S.C. 924(c) and second, whether one of the defendant’s sentence was procedurally and substantively reasonable.

The defendants challenging the 924(c) conviction. Section 924(c) which makes it a crime to use, carry, or discharge a firearm in relation to a crime of violence. The defendants argued here that the RICO conspiracy is not a “crime of violence”. The statute defines a crime of violence as a felony offense that (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (the elements clause) or (b) that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (the residual clause).

Published on: February 4, 2019

A single conspiracy by the Big Money Team operating in Little Havana

by The Swartz Law Firm

Dixon is an appeal by four defendants who participated in a drug conspiracy in the Little Havana area of Miami. Calling themselves the Big Money Team, they were a gang of drug dealers who also committed robberies and illegally possessed guns. Following a jury trial, they were convicted of drug trafficking, firearm possession, armed robbery, assault and conspiracy to distribute 280 grams of cocaine base. Defendant Chacon received a 420-month sentence, Defendant Altamirano was given 235 months followed by Dixon who received 144 months.

In challenging the conspiracy conviction, the defendants argued that the government failed to prove the existence of a single conspiracy to sell drugs. Each defendant argued that the evidence failed to establish that he joined the conspiracy. They also challenged the sufficiency of the evidence about the quantity of drugs they conspired to distribute. The court of appeals disagreed because it found the government presented ample evidence of a single conspiracy to sell drugs by the members of the Big Money Team through the “traps” maintained by members of the team where they sold drugs, shared customers, kept lookout for one another and cooperated to supply drugs consumers demanded. Even though drugs were sold at different locations, there was an interrelatedness of the operation. Even though the government did not establish that the conspiracy had an internal control structure, the evidence did suggest an unofficial hierarchy with Chacon and Altamirano as the top guys who called the shots.

Published on: December 2, 2018

Representing a government witness on a pending appeal definitely a conflict of interest

by The Swartz Law Firm

Stephon Williams was convicted of federal charges of conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. 846 following a jury trial in a Georgia federal court. Williams was charged with conspiring with his codefendant Donterius Toombs who also went trial with Williams. The government called a witness named Bennet to testify at their trial.

At the time of this trial Bennet was appealing his drug conviction by challenging his sentence enhancement for an obstruction of justice for sending a letter to Toombs, Williams’ coconspirator, asking him to cooperate on Bennett’s in exchange for a substantial payment and to market a cooperation-for-hire scheme to inmates seeking sentence reductions. The attorney representing Williams at his trial was also representing Bennet on his sentence enhancement challenge in the Eleventh Circuit court of appeals.

In his testimony Bennet did not mention Williams by name but he supported the government’s case against both Williams and Toombs by directly describing and by corroborating other witnesses’ testimony concerning the drug distribution conspiracy alleged in the indictment. In his direct examination, Bennet made no mention of his letter to Mr. Toombs or how he had received and obstruction of justice enhancement at sentencing. Toombs’ counsel cross-examined Bennet but did not bring up the topic. Williams’ counsel asked no questions when it came to his turn on cross examination.

Published on: October 11, 2018

No suppression of evidence seized during a warrantless search incident to arrest even though the officers violated the knock and announce rule

by The Swartz Law Firm

Defendants Maxi and Bland appealed their convictions for conspiracy to possess with intent to distribute a controlled substance, possession with intent to distribute a controlled substance, possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon. Their charges followed their arrest at 132 N.E. 64^th Street in Miami and the subsequent search incident to arrest at the property. Subsequently a, search warrant was issued and wiretaps were authorized.

Defendant Maxi challenged the search and seizure of drugs from the apartment that took place before the search warrant was issued. The trial court denied the motion and Maxi appealed. As to the standing issue the court found he did have standing to challenge the search because he rented the apartment and had a reasonable expectation of privacy in the duplex.

The next challenge raised concerning the search was that the police illegally entered the curtilage of the duplex when 10 officers surrounded the building at night one with his gun drawn. The government responded that the entry was permissible under the “knock and talk” Rule. The court rejected the knock and talk argument because the rule implies that the police have an owner’s implied permission to approach a home and this was not the case here where. the officers here breached the curtilage of the duplex by many going through a gate in the fence and four or five approaching the door and the rest taking up tactical positions around the exterior. But the constitutional violation did not result in the production of any evidence and there was no evidence to suggest that anything would have turned out differently if a proper knock and talk have been done. The court also upheld the district court’s finding that Maxi had opened the door voluntarily.

Published on: February 9, 2018

Case remanded because the judge failed to personally address the Defendant at sentencing

by The Swartz Law Firm

George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon. Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

Published on: January 22, 2018

New sentencing for defendant but only for a chance to address the judge

by The Swartz Law Firm

George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon.

Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

Published on: December 28, 2017

Conviction for Miami drug courier upheld

by The Swartz Law Firm

Max Jeri was convicted and sentencing for importing 7.95 kilograms of cocaine into the United States after he arrived from Lima Peru at the Miami International Airport. The evidence produced at trial showed that after his arrival in the Miami Airport a Customs and Border Patrol Officer inspected his luggage and discovered cocaine secreted in various items in his luggage including children’s jackets, notebooks, purses, and pillows. He gave the officers the person for whom he was transporting the items and was a travel agent and a long time friend who offered him a free round trip ticket to Peru and in exchange she asked him to take two bags of merchandise to her sister and to return to New York with the two bags.

He said the items he took to Peru were electronic items toys and shoes. For the return flight the sister went with him to the airport where she showed him the contents of the suitcases, which he checked and boarded the flight to Miami. Following the seizure, Jeri volunteered to make controlled calls to the friend in an attempt to elicit inculpatory comments about the drugs in the suitcase, but the friend repeatedly claimed the bags were clean. The agents attempted to arrange a controlled delivery of the drugs but the person who came to pick up the packages refused to take them.

Published on: October 15, 2017

Jurisdiction to search and prosecute defendants on vessel without nationality authorized

by The Swartz Law Firm

In U.S. v. Lopez Hernandez, the defendants appeal their convictions under the Maritime Drug Law Enforcement Act (MDLEA) which criminalizes individuals for possessing with intent to distribute a controlled substance while on board a vessel subject to the jurisdiction of the United States. In this case the defendants’ vessel fell under U.S. jurisdiction as a vessel without nationality. The U.S. Coast Guard officers stopped the four defendants in this appeal on board a go-fast boat without a flag in international waters about 120 nautical miles southwest of the El Salvador/Guatemala border in the Pacific Ocean. When the Coast Guard approached the boat, the crewmen began dumping packages overboard that were later found to contain 290 kilograms of cocaine. The four crew members were ultimately arrested. One defendant who identified himself as the captain claimed the boat was registered in Guatemala. The Coast Guard contacted the Guatemalan government which could neither confirm nor deny. With a certification that the ship was without nationality, the Coast Guard determined it had the authority and jurisdiction under the statute to search the boat.

The defendants filed a motion to dismiss the indictment on the grounds that the Coast Guard had information in their possession indicating the boat was not a vessel without nationality within the meaning of the plain text of the MDLEA.

While the Coast Guard stated that no registration documentation was provided to them prior to contacting the Guatemalan government, they claim they later found registration documents on the ship. The defendants on the other hand claim that the Coast Guard officers had the registration documents before it asked Guatemala about the boat’s registry.

Published on: September 16, 2017

With no evidence Defendant knew he possessed drugs, the conviction is thrown out

by The Swartz Law Firm

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.

Published on: May 20, 2017

Police officer’s stop of a driver for a partially obscure license plate upheld following fourth amendment challenge

by The Swartz Law Firm

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.