Articles Posted in Federal Trial Issues

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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.

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Elbeblawy was convicted and sentenced in Miami, Florida, for conspiracy to commit health care fraud in violation of 18 U.S.C. 1349. His offense arose from his ownership and management of home health agencies that provided in-home medical nursing and other services to homebound patients which he used to defraud Medicare for millions of dollars. His fraud included billing Medicare for services that were never provided, paying doctors in case for referring patients, hiring patient recruiters and nurses for referrals. He would disguise check by inflating the rates paid for staffing services and described checks to patient recruiters as payments for consulting and other services.

After an investigation focused on Elbeblawy, he decided to cooperate with the government and helped investigators obtain evidence against his former conspirators. He signed a plea agreement and a written factual basis for the agreement. The agreement stated that the government would be free to use against him in any criminal proceedings any of the statement provided by him including the factual basis for the plea. After he signed the agreement, he changed his mind and refused to plead guilty and the government prosecuted him for the charges he was indicted. Prior to trial Elbeblawy filed a motion to suppress the signed factual basis for the plea agreement on the ground that he did not knowingly and voluntarily waive the Rule 11 and Rule 410 protections. The district court denied his motion.

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Wenxia Man appealed her conviction and sentence for conspiracy to export defense articles without a license in violation of the Arms Control Export Act 22 U.S.C. 2778. The conviction arose from her participation in a series of discussion with Xingsheng Zhang, a Chinese operative, and an undercover agent with the Department of Homeland Security, Jerry Liu, about how to purchase and export to china military aircraft engines, a military drone, and related technical data. Although the sale never occurred the United States charged Man with conspiring to violate the Act. In her appeal she challenged her conviction on the grounds that the evidence against her was insufficient to establish a conspiracy and that she was entrapped.

In arguing the government failed to prove that she conspired to violate the Act she first argued that she never entered into a conspiratorial agreement with Zhang or anyone else to obtain purchase or export defense articles. She contended that proposals made by Liu were rejected by Zhang and the parties never advanced beyond mere discussion or ever finalizing an agreement. At best, she argued, it showed that she and Zhang agree to submit inquiries about products and negotiate an agreement but did not have an agreement. The court of appeals rejected this argument finding that Man and Zhang agreed to export unlawfully the items charged in the indictment and that this agreement was not wholly conditioned on Liu’s participation. It found the record supported the reasonable inference that Man and Zhang reached an independent agreement to acquire the engines and drones from any available source and that the duo would have maintained a partnership or joint venture in addition to the one that they proposed to Liu.

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Mitrovic appealed his conviction for unlawful procurement of naturalization in violation of 18 U.S.C. 1425(b) and 8 U.S.C. 1451(e) that arose from charges against him for concealing from immigration authorities his work as a Serbian prison camp guard. When Mitrovic applied for Unites States citizenship, he stated that he had never persecuted anyone on account of their race, religion, national origin, membership in a particular social group, or political opinion. It was eventually discovered that he served as guard who beat prisoners at the Trnopolje prison camp run by the Serbians during their campaign of ethnic cleansing waged against the Bosniak Muslims and other ethnic groups. The government charged Mitrovic with making false statements in his citizenship application.

Prior to trial, his attorney filed motions to depose witnesses in Bosnia who had been in the Trnopolje prison camp. However, upon his defense team’s arrival in Bosnia, they learned that several witnesses refused to be deposed. Most of the witnesses who refused to be deposed had been in the Trnopolje prison camp for longer than those where sere deposed and had originally told Mitrovic’s defense team that they never saw Mitrovich as a guard at the camp. Upon returning to the United States Mitrovic filed a motion to allow the investigator who interviewed the recalcitrant witnesses to testify to what the witnesses said during their initial interviews: that they had been in the camp for an extended period and never saw Mitrovic. He argued that statements should be excepted from the hearsay rule or alternatively the statements should be admissible because not allowing the statements would deprive Mitrovic of his constitutional right to present a complete defense citing Chambers v. Mississippi.

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Knowles appealed her convictions for the use of an unauthorized access devise and for aggravated identity theft in violation of 18 U.S.C. 1029 and 1028. She was arrested following a traffic stop in which the car she was a passenger in was stopped for having illegally tinted windows. The officer stopping the car was with agent Tippens of the Department of Labor who was part of a task force investigating identity theft and other crimes. Because the driver was on probation for a state fraud offense, the officer asked for and received consent to search the car. He found four Publix Supermarket money orders each for $500 and money order receipts, along with $1,000 in cash in a compartment. Knowles claimed they were all bought with cash.

Tippens later obtained the surveillance videos from the Publix store where the money order were purchased and matched the purchases shown on the video with the dates times and store numbers reflected on the money order and money order receipts found in the car. The money orders were purchased with prepaid debit cards which were obtained under the names and social security number of two individuals whose identities had been stolen. As a result Knowles was charged.

At the trial the government elicited testimony from Tippens who identified Knowles as the person in the Publix surveillance videos who purchased the money orders with the prepaid debit cards. He based his opinion on his frame-by-frame review of the surveillance videos, his comparison of the individual in the videos to photographs of Knowles and his 20 minute interaction with Knowles during the traffic stop.

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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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This is an appeal by the estate of Shaw who was killed by a Selma Alabama police officer after the district courted granted a summary judgment in favor of the defendants. Shaw’s estate filed a lawsuit against the City of Selma, the police chief and the police officer for excessive force and false arrest under 1983 as well as several state law tort claims. Because the court found that Shaw posed there a threat of physical harm at the time he was shot, the appellate court upheld the dismissal.

Here is how the facts unfolded. The Selma Police received an emergency call from a Church’s Chicken restaurant about an incident involving a 74-year-old mentally disturbed man who attempted to enter the restaurant but was turned away because he had apparently there a few days earlier armed with a knife. When officers arrived, he was spotted at a nearby laundromat and the events were recorded on the officer’s body camera. There Shaw picked up an axe. The officer drew his weapon and ordered him to put down the axe. As Shaw left premises and walked toward the Church’s restaurant the officers followed him. At one point Shaw turned toward the officer shouting at the officer to “Shoot it”. When Shaw was less than five feet away moving toward him with axe in hand and still yelling at the officer to shoot it, the officer fired at Shaw and killed him.

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In this appeal Plaintiff Raymond Berthiaume sued Lieutenant David Smith of the Key West Police Department and the City of Key West. In his lawsuit he claimed he was falsely arrested, and claimed he was the victim of excessive force, false imprisonment, battery, and malicious prosecution at the hands of the officer who arrested him during an incident that took place during the Fantasy Fest Parade events in Key West.

The facts stem from an altercation between two gay men who formerly had been partners. Both men attended the Fantasy Fest parade with friends after which they went to a gay bar. Berthiaume was not ready to leave the bar when Jimenez was, so Jimenez waited by his car for a short time but returned to the bar to find Jimenez still there. Berthiaume led Jimenez out of the bar with his hand on Jimenez’s upper arm. Jimenez took the car keys from Berthiaume and ran down an adjacent alleyway. Berthiaume chased after Jimenez to retrieve his keys. Several police officer patrolling the activities observed the activities between the men and believed that they were witnessing a fight or altercation between the two men. Officer Smith ran toward the alley to intervene and he pushed Berthiaume on the shoulder to stop him from pursuing Jimenez causing him to fall and damage his wrist and jaw. Jimenez explained they were former partners and were trying to get back to together. Despite Jimenez’s unwillingness to press charges against Bethiaume, Smith arrested him and charged him with domestic battery.

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In Knight v. Miami Dade two Miami Dade Police officers discharged their firearms at the SUV Cadillac driven by the plaintiffs killing both plaintiffs.  The estate filed a complain against the officers and the Miami Dade police department for various civil rights violations and claim arising under Florida state law and this is an appeal form lower court rulings against the Plaintiffs. The plaintiffs were driving in the Cadillac after leaving a Miami night club. A police care began to follow them when they allegedly ran a red light. The plaintiffs denied running any red lights. The officers attempted to make a traffic stop using their PA system, but the care kept driving. When the Cadillac came to a stop at a dead end. The plaintiff’s witness who was a passenger said in a deposition that the car was not moving, decedent’s hand was on his side, and shots were fired into the car. However, in a statement made just after the incident the witness said that Plaintiff started backing up toward the officers and they began firing into the moving vehicle. As the care reversed it collided into the police car.

The case ultimately went to trial on the 1983 civil rights claim and the assault and battery claims against the officers

In the appeal the plaintiffs argue that there were six errors that entitle them to a new trial. The issues raised include the admission of evidence from the defendant’s police practice expert, the exclusion of the plaintiff’s ballistics and reconstruction experts, the exclusion of evidence showing violations of the Police Department’s pursuit policy, the refusal to give a specific jury instruction, the admission of some criminal history evidence, and the failure to address the prejudicial nature of the defendant’s opening and closing statements.

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In this civil rights lawsuit involving an officer shooting, the plaintiff, Evett Stephens, claimed a constitutional violation as a result of the excessive force used against him by Palm Beach Sheriff deputy Adams Lins as an individual and against Sheriff Ric Bradshaw in his official capacity as the sheriff of Palm Beach County. This is how the facts unfolded. Deputy Lin was on police duty monitoring traffic during school bus pickups observed Stephens riding his bike on the wrong side of the road. Deputy Lin decided to stop Stephens for some reason. Stephens claimed he was holding a cell phone to his ear while riding his bike prior to the stop. Lin says he never saw the cellphone. Upon hearing the sirens of Lin’s patrol car Stephens dismounted from is bike. Lin instructed Stephens to walk toward him while showing his hands. According to Lin, Stephens turned away from Lin as he began to approach Stephens. As soon as Stephens turned away, Lin shot Stephens four times leaving him a paraplegic.

The district court granted a summary judgment in favor of Sheriff Bradshaw as to the Monell claim against him following a length hearing. At trial, the jury returned a verdict against Lin for the 1983 excessive force claim and against Sheriff Bradshaw for the state court battery claim.

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