Articles Posted in Sufficiency of the Evidence

Published on:

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.

Continue reading

Published on:

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.

Continue reading

Published on:

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.

Continue reading

Published on:

 

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.

Continue reading

Published on:

 

The Eleventh Circuit rejected Austin Gates’ federal civil rights claim against three City of Atlanta Police officers for arresting him without probable cause during a protest in downtown Atlanta. Gates claimed the arrest was in violation of the Fourth and First Amendments of the Constitution as well as various Georgia state court laws. Gates participated in a march protesting a grand jury’s decision not to file charges in the Ferguson, Missouri police-shooting. During the protest he was given a “V for Vendetta” mask by another protester. The mask was a stylized image of the Guy Fawkes character from the movie “V for Vendetta” and designed to cover the entire face. He and other protesters wore the same masks to express his disagreement with the grand jury’s decision and to maintain anonymity during the protest. At some point during the protest Defendant police chief Whitmire ordered the protesters to remove their masks multiple times over a loudspeaker and warned that any mask-wearing protesters would be arrested. After the warning, Whitmore issued orders to arrest any protesters wearing masks and the plaintiff was arrested. When asked why he was being arrested, the defendant officer did not immediately respond and after conferring with other officers, he was told the arrest was for wearing a mask. Gates followed with this complaint against the City and the officers pursuant to section 1983.

Continue reading

Published on:

 

In US v Crabtree a therapist at a health care clinic in Miami was convicted along with her two therapist codefendants of conspiracy to commit health care fraud in violation of 18 U.S.C. 1349. In this appeal they raised several issues, including a constitutional challenge under the double jeopardy clause. The underlying facts involved the operation of a mental health centers in Florida and North Carolina called the Health Care Solutions Network (HCSN) which billed Medicare for over $63 million in fraudulent claims. Crabtree and two of the co-defendants were former employees of HCSN who worked therapists.

HCSN was set up as a “partial hospitalization program” (PHP) that was purportedly designed to provide intensive psychiatric therapy to patients with “serious and acutely symptomatic mental illnesses.” These programs serve as a bridge between restrictive in patient care (psychiatric hospitalization) and routine outpatient care.

A PHP complying with federal and state law may seek Medicare reimbursement for its services. However, HCSN was not following Medicare standards and practices. From intake to discharge HCSN organized its business around Medicare fraud by editing intake information, fabricating treatment plans, and falsifying therapy and treatment notes to support Medicare claims. Therapist fabricated therapy notes for absent patients, falsified details from therapy sessions, and cloned notes by copying and pasting therapy notes from one patient’s file to another’s.

At the conclusion of the first trial the jury acquitted Crabtree and her two codefendant therapists of the false statement counts but it failed to reach a verdict on the conspiracy counts. At the first trial the court gave an instruction for Pinkerton liability with the false statement instruction. Under the Pinkerton instruction if the jury found the defendant guilty of participating in conspiracy it could find the defendant guilty of the substantive false statement crime even though the defendant did not personally participate in the false statement crime. The defendants were retried and convicted of the conspiracy count at the second trial.

Continue reading

Published on:

Lawrence Foster was charged and convicted in Miami following a federal court jury trial of conspiring to commit wire fraud and six counts of wire fraud in violation of 18 U.S.C. section 1349. He raised three challenges. First, he claimed the trial judge erred by denying his motion for judgment of acquittal. Second, he claimed the loss amount was incorrectly calculated. Third, he claimed his verdict should be set aside due to jury misconduct.

Foster was charged with defrauding investors who thought they were investing in property in the island of Rum Cay in the Bahamas. He solicited investors by offering them two investment opportunities. They could either purchase Rum Cay land or lend money to his company Paradise is Mine (PIM) in return for a security interest in the land. Foster used several marketing strategies including celebrity endorsements to promote PIM. He also represented to prospective investors that hundreds of news organizations including USA Today and the Wall Street Journal had featured articles about PIM. But PIM was a scam because it never owned the land that it claimed it owned and the newspaper reports were not legitimate. Some articles were created by Foster himself. The investors never received tit to the land.

Continue reading

Published on:

Focia’s conviction arose from his sale of firearms on the dark web. He was charged with a violation of 18 USC section 922(a)(1) for transferring firearms to a resident of a state other than his own without a federal firearms license in violation of 18 USC section 922(a)(5). In his appeal he challenged the sufficiency of the evidence arguing that the government failed to prove that he and each transferee were not residents of the same state at the timer of each sale. He claimed that the government failed to prove that Focia was a resident of Alabama, a different state than where the buyers lived in Nebraska and New Jersey. He argued that the government only established only that Focia used to live in Alabama at some point before the firearm sales and that he was present in Alabama several times over the span of two years.

The court of appeals rejected this challenge finding that the government introduced sufficient evidence of Focia’s residence at the time of the sale to sustain his conviction. The government presented evidence directly tying Focia to Alabama including his driver’s license showing an address in Alabama that did not expire until three months after Focia completed his transaction with the buyer and documents from E-trade Financial and a pawn shop in Alabama bearing Focia’s name and address in Alabama. Additionally, the government introduced powerful circumstantial evidence from which a jury could reasonably infer that Focia resided in Alabama at the time he shipped firearms to undercover agents located in the two states.

Continue reading

Published on:

 

 

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.

Continue reading

Published on:

 

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.

Continue reading