Articles Posted in Federal Sentencing

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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.

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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 serving these tow 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. It ruled that Amodeo lacked standing to challenge the partial vacatur of that order.

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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.

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This appeal followed the conviction of Geovanys Guevara for causing a car dealership in Miami to file Form 8300s with the United States Treasury Department that contained false statements concerning Guevara’s identity as the individual who provided cash payments over $10,000 to buy four luxury cars: a Rolls Royce, a Lamborghini, a Porshe, and a Farrari. The Bank Secrecy Act requires any person engaged in a non-financial trade or business to file a Form 8300 with the United States Treasury. The form reports any cash payment over $10,000 received by the business or trade. It requires the business to verify and record the name and address of the person from whom the cash payment was received along with social security numbers and taxpayer identification numbers of any person on whose behalf the cash payment is offered.

At trial the Government presented a witness who testified that Guevara paid him $1,000 to go to the car dealer and put title for two of the four cars in his name. The government also presented Guevara’s interview in which he admitted that he was the true owner of all four cars. He admitted purchasing the cars and placing two of the titles in the name of his friend. He also admitted that the car dealer owner knew that Guevara was paying for theses vehicle.   He said he bought the cars using money from a therapy clinic he owned and admitted paying his friend to go to the dealership to take title to the cars.

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Harlem Suarez appealed was sentenced to life in prison without parole following his conviction for one count of attempting to use a weapon of mass destruction in violation of 18 U.S.C. 2332 and one count of attempting to provide material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. 2339B.  A jury found him guilty following an eight-day trial.

In his appeal he argued the evidence was insufficient to support his conviction for attempting to uses a weapon of mass destruction. The statute has a jurisdictional element, which requires that the offense, in this case an attempt, would have affected interstate or foreign commerce. Suarez argued the government was required to prove a substantial effect on interstate commerce to satisfy the jurisdictional hook. The court of appeals disagreed by holding that the government only had to prove that a de minimis effect on interstate commerce satisfies the jurisdictional element. Because the minimal effect standard is a low bar, the court found the government presented sufficient evidence that a terrorist bombing in Key West would have had at least a minimal effect on interstate commerce.

Suarez also argued the evidence was insufficient to support his conviction to support a foreign terrorist organization. He claimed that Suarez did not coordinate or directly contact an actual foreign terrorist organization because he had contact only with the government informant and undercover agents. The court rejected this challenge finding that it is irrelevant that he did not make contact with ISIS because the law requires only that Suarez directed or attempted to direct his services to ISIS. Suarez’s mistaken believe that the government informant and the undercover agents were actual ISIS agents is not a defense to his attempted crime. He had the requisite intent to coordinate with ISIS and he took substantial steps to do so. The court found there was substantial evidence Suarez knowingly provided material support to a foreign terrorist organization and for attempting to use a weapon of mass destruction.

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Defendant Whitman started a trucking company called United Logistics. To increase business and profits he bribed three employees of the federal Defense Logistics Agency to steer transportation contracts his way.  Whitman was convicted of federal crimes including bribery, wire fraud, and obstruction involving government contracts and took this appeal.

The evidence at trial showed that for about four years Whitman’ scheme defrauded the United States of more than $15 million by bribing three employees of the Defense Logistics Agency on a Marine Corps base to use his trucking company to ship military equipment around the country.

Because the Department of Defense hired an outside company to book shipment carriers, the four schemers devised shipment requirements that all but guaranteed that United would receive assignments. Yet Whitman rarely if ever satisfied the special requirements the Defense Logistics Agency imposed. Furthermore, Whitman’s company only owned two trucks and his assistant would have to hire other trucking companies to handle the shipments he contracted with the Defense Department.

Although the Defense Logistics Agency employees never discussed with each other the specifics of their individual arrangements with Whitman, they knew about the criminal conduct of their coconspirators. Whitman told the others that McCarty was working for him and that he was paying McCarty to get him as many loads as possible. One of the coconspirators was McCarty’s supervisor and he frequently reviewed McCarty’s work and had identified fraudulent activity without taking any corrective measures.

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Nelson Machado lived in Orlando, Florida from 2005 through 2009, then moved to Bradenton, Florida, before he moved back to his native Brazil in December of 2009, to work as a pastor in Brazil. In April of 2010, he was indicted for three counts of wire fraud. The indictment charged him with wire fraud in violation of U.S.C. section 1343 accusing him of making false representations as part of a scheme to obtain mortgage loans. The evidence showed he applied for and obtained three mortgage loans worth a total of $739,900. When he applied for the loans Machado had a monthly salary of $3,000 and very little savings. The monthly payments for those three loans totaled $5,322.00. The properties he purchased with the loans were located in Cape Coral, Florida and valued at $509,900 with first and second mortgages totaling $490,000. The false statements he provided were that he was the manager of a tile corporation with $79,949 in personal savings. He also provided false documents regarding his employment and bank account.

He then contracted to purchase a second property and applied for a $249,900 mortgage loan. As in the first property, he provided false statements about his employment and his bank account with false documents to back it up. On top that, he failed to disclose the financial details of his first property purchase, indicating that it would be his primary home.

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In this appeal Mathews Martinez appeals his 60 month sentence for his conviction for intentionally causing damage to a protected computer of the Department of Veterans Affairs and resulted in the modification and impairment of the medical care of an individual and for knowing altering ad making a false entry in date stored within the Department’s computer system with the intent to impede obstruct and influence the investigation and proper administration of a matter within the Department’s jurisdiction. Mathews was a nurse in the surgical intensive care unit of the VA hospital who did not record the changes in the patient’s vital signs during his stay in intensive care following heart surgery. Later the patient died of heart failure. When Matthews returned to work, he was confronted about the patient’s care. Knowing there would be an investigation, he went back into the patient’s records and entered numbers and notations.

Mathews challenged his enhanced sentence the court found that he did alter a substantial number of records and he altered essential and probative records. The court also enhanced his sentence because his victim was vulnerable and Mathews was in charge of the patient’s care. The court also determined that he tested positive for cocaine while on bond and found that it lacked any authority to grant him acceptance of responsibility reduction in his guidelines. The court ultimately found the guidelines range was insufficient and varied upward to a 60 month sentence.

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Presendieu and Jean were indicted on bank fraud conspiracy and aggravated identity theft for participating in a check cashing scheme where they cashed fraudulent checks at Kwik Stop Food Store owned by Habib. Presendieu pled guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. 1349 and aggravated identity theft in violation of 18 U.S.C. 1028A. As part of his guilty plea Presendieu signed a seven page detailed Factual Proffer in Support of Guilty Plea admitting his participation in Habib’s illicit check cashing services by cashing stolen checks with forged endorsements and using false identification documents to cash them. He then entered his guilty plea colloquy pursuant to Rule 11.

In his appeal Presendieu complains that his guilty plea was procedurally defective and unconstitutional because the district court failed to inform him of the nature of the charges, never outlined separately each element of his two offenses, and never asked him whether he understood those elements. He did not raise these objections before the district court and raised them for the first time in his appeal to the Eleventh Circuit Court of Appeals.

The appellate court concluded that the district court did not commit plain error under Rule 11 or under the constitution in accepting Presendieu’s guilty plea. It found that Presendieu was aware of the charges to which he plead guilty, he was sufficiently intelligent to understand the nature of those charges, he understood that the facts set forth in the factual proffer established that he was guilty of those two particular offenses, he had discussed the two charges and the facts in the proffer with his attorney, and he intelligently pled guilty to both charges in the plea agreement.

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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.

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