Federal Sentencing

Published on: January 28, 2021

Prior state court sex offense qualified as an enhancement for federal child pornography conviction

Jason Kushmaul was indicted by a federal grand jury on two counts of distributing child pornography and with possessing material containing child pornography involving a minor under the age of 12 in violation of 18 U.S.C. section 2252A. He was arrested in Florida by Bay County Sheriff Officer who went to his address based on a tip obtained by Homeland Security that he was distributing child pornography through an App known as Kik. Kushmaul was already registered on the Florida Sex Offender Registry having been previously convicted in Florida of promoting the sexual performance of a child. He pled guilty to the federal offense. The federal statute, Section 2252A, enhances the mandatory minimum from 5 years to 15 years if the offender has a prior conviction under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor. The sentencing court found that his 2016 Florida conviction “promoting the sexual performance of a child” qualified as a prior conviction that triggered the sentencing enhancement and imposed a 15-year sentence.

Published on: December 31, 2020

Evidence found sufficient to convict defendant of conspiracy to commit healthcare fraud but wrong sentence imposed

by The Swartz Law Firm

Grow formed a company and teamed up with a compounding pharmacy called Patient Care America to market three of its compounded medications: a pain cream, a scare cream, and a metabolic vitamin. He recruited two sales representatives and paid them using a tiered multilevel pyramid structure which meant that commissions for the sales representatives were based on their own referrals and referrals made by representatives brought in by the representatives they brought in. He also recruited patients instead of doctors and used telemedicine companies to prescribe the creams and vitamins to patients. Some recruited patients were paid commissions for just ordering their own creams and vitamins and set up a phony survey program where Grow’s recruited patients were paid $1,000 per month to try the creams and vitamins and write about their experiences. The only purpose of the survey was to refer more beneficiaries and get paid commissions. Nothing was done with the results of the survey. Grow was charged and convicted of conspiracy to commit healthcare and wire fraud, committing healthcare fraud, conspiracy to receive and pay kickbacks.

Published on: December 28, 2020

Doctor’s conviction for unlawful distribution of Oxycodone upheld

by The Swartz Law Firm

Gayden’s career as a doctor ended after law enforcement began investigating his medical practice following tips that he was prescribing excessive amounts of Oxycodone. Drug Enforcement Agents reviewed his prescription records through the Florida Prescription Drug Monitoring Program (PDMP) and discovered that Gayden had a history of irregular prescribing practices including issuing scripts for opioids in higher quantities or greater potency and in greater frequency than the norm. The DEA issued a search warrant for his patient records. Through recordings made by undercover patient who visited his office they discovered long lines of patients waiting to get into Gayden’s office. Investigators also learned that Gayden insisted on cash only for his services.

Just before the five-year statute of limitations ran, a federal grand jury indicted Gayden on seven counts of unlawful distribution of a controlled substance in violation of 21 U.S.C. section 841(a)(1). Gayden was convicted following a jury trial and sentenced to 235 months in prison.

Published on: December 24, 2020

No error to let a Defendant in a Federal criminal trial represent himself if he chooses

by The Swartz Law Firm

Gerti Muho’s scheme led to his conviction of bank fraud, wire fraud, aggravated identity, money laundering, and a 264-month sentence in federal prison. In this appeal he claimed that the district court should have reinstated his court appointed counsel despite his having invoked his right to self-representation. He also claims the trial court should have granted his request for court issued subpoenas, and the trial court erred by enhancing his sentence.

Muho worked for an investment firm “FAM” which gave him a position allowing him access to the personal information of the firm’s employees. After he left the firm, he created and used fraudulent documents purporting to reestablish his authority with the firm and then take control of one of FAM’s entities using a shell company he created. He was able to convince a bank, HSBC-Monaco, that he had legal authority to execute financial transactions on behalf of one of the subsidies and incuduced the bank to wire transfer over $2 million from the firm’s subsidy account to an account Muho controlled in another bank.

Published on: December 3, 2020

Prosecution statements not reversible; restrictions against using the internet not a First Amendment violation

by The Swartz Law Firm

Bobal was indicted by a grand jury on two counts of using a means of interstate commerce to attempt to persuade a minor to engage in sexual activity in violation of 8 U.S.C. sec. 2422(b) and committing a felony offense involving a minor after being required to register as a sex offender in violation of 18 U.S.C. sec. 2260A. Bobal had a prior conviction in Florida for using a computer to solicit a child to engage in sexual activity. His trouble began when he sent a picture of his penis to a man posing as a 14-year old girl. The F.B.I. got involved and an agent posing as the 14-year-old girl began exchanging text messages with Bobal which were sexual in nature and eventually arranged a meeting. When Bobal arrived at the meeting location he was arrested.

Published on: December 1, 2020

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

by The Swartz Law Firm

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: June 26, 2019

Interstate nexus requirement was an element of the offense and not subject matter jurisdiction

by The Swartz Law Firm

Isabel Grimon plead guilty to possessing 15 or more unauthorized access devices and aggravated identity theft after officers found 19 bland credit cards in her vehicle and a thumb drive containing 134 credit card numbers issued to other persons. The indictment charged her with knowing possession of unauthorized access devises and that “said conduct affected interstate commerce.” She went through the plea hearing with a factual proffer which included a stipulation that the government would have proven at trial that Grimon did knowingly and with intent to defraud possess 15 or more devices which are counterfeit and unauthorized access devices, said conduct affecting interstate commerce.”

In her appeal Grimon argues that the district court lacked subject matter jurisdiction over her offense because the factual proffer merely stipulated to the interstate commerce element of her access device offense and did not contain any underlying facts showing that her possession of counterfeit credit cards affected interstate commerce. She stressed that the cards were never used. The government argued that even if Grimon’s stipulation was insufficient factual basis for the interstate commerce element of her offense that did not deprive the district court of subject matter jurisdiction to accept her plea.

Published on: May 31, 2019

Defendant’s conduct in a foreign country can be used to enhance the sentence

by The Swartz Law Firm

In this appeal Anthony Spence was charged with knowing transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1) and knowing possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B). He was found guilty after trial. In calculating his federal sentencing guidelines range the probation officer recommended an increase for a number of factors. The factor at issue here was a two-level enhancement for distribution which Spence stated took place while he was in Jamaica. In this appeal he argues that his distribution of the videos while in Jamaica should not have affected his guidelines calculation. He argued that by including his out of country conduct in the calculation of his offense level the district court violated the principle that legislation of Congress should apply only within the United States unless a contrary intent appears. Spence was relying upon a canon of statutory construction known as the presumption against the application of congressional statutes to conduct occurring in the territory of a foreign sovereign. He argued that the distribution of videos occurring solely in Jamaica should not have been considered by the district court.

As an issue of first impression, the court of appeals saw the issue as whether the presumption against the extraterritorial application of congressional legislation should be extended to apply also to preclude a sentencing judge from considering extraterritorial conduct which would otherwise be properly considered as relevant conduct.

Published on: May 17, 2019

The ten-or-more victim enhancement for use rejected where information only sold not used

by The Swartz Law Firm

Corbett and Weaver worked at Florida Hospital near Orlando Florida. When Weaver held the position of release of information specialist he would download patients’ face sheets containing their name, health information, date of birth and social security number without authority to do so and sold them to coconspirators who, the government believed, intended to use the information to open credit card accounts and commit identity fraud. Corbett took over Weaver’s position as release of information specialist, he solicited her to obtain face sheets without authority and paid her for each assisting him obtain the information. Both were charged with conspiracy to obtain identifiable health information for commercial advantage and pleaded guilty.

The probation officer that calculated the sentencing guidelines recommended a two level enhancement for an offense that involve 10 or more victims under 2B1.1. the probation officer also calculated the Florida Hospital’s loss on costs associated with identifying and notifying patients whose individually identifiable health information was viewed without authorizations. This resulted in a 10 level enhancement. At sentencing the defendant objected to the loss amount on the grounds that the Florida Hospital’s expenses should have been excluded as cost incurred by victims primarily to aid the government in the prosecution and criminal investigation of the offense. She objected to the 10 or more victim enhancement on the grounds that the government only identified a handful at most who suffered any identifiable financial harm as a result of the conspiracy. The district court denied both objections.

Published on: April 12, 2019

Defendant had no standing to contest a vacatur of the criminal forfeiture order

by The Swartz Law Firm

Frank Amodeo pled guilty to conspiracy to defraud the United States for his failure to collect and remit payroll taxes and obstruction of an agency investigation. His offense arose from his scheme to divert his clients’ payroll taxes to his companies’ bank accounts instead of remitting the money to the I.R.S. As part of his plea agreement he agreed to forfeit many assets including properties, luxury cars a Lear jet, and the ownership of several corporations including two corporations: AQMI Strategy Corporation and Nexia Strategy Corporation. After the plea, the district court entered a preliminary forfeiture order for the assets, including the two corporations AQMI and Nexia. The government then moved for and received a final forfeiture order giving clear title to the United States.

Eventually, victims from Amodeo’s scheme filed lawsuits against his corporations, including the forfeited AQMI and Nexia. After the victims served the lawsuits on these two companies, the government moved to vacate the final forfeiture order because both were shell corporations without any assets. The government did not want to defend either corporation. The district court granted the motion and vacated the final forfeiture order as to these two corporations. Amodeo moved to reconsider the partial vacatur on the ground that the district court lacked jurisdiction to alter the final forfeiture order. the district court denied the Amodeo’s motion stating that it had vacated only the final forfeiture order in part and not the preliminary order. the trial court ruled that Amodeo lacked standing to challenge the vacatur of that order.