Articles Posted in Sufficiency of the Evidence

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In U.S. v. Brown the Defendant pleaded guilty in federal court for knowingly receiving 481 counterfeit United States Postal Money Orders from a foreign county with intent to pass them off as real, violation of 18 U.S.C. § 473. As part of her plea agreement she waived her right to appeal her federal conviction and sentence. At the plea colloquy she admitted that she knew the postal money orders were not true and were counterfeit.

Nevertheless, she filed her appeal and raised the issue in her appeal that her indictment was defective because it did not expressly allege the mens rea element of the section 473. She argued that the omission deprived the federal court of subject-matter jurisdiction to accept her guilty plea and therefore her conviction is null and void.
Brown’s two count indictment was based on her receipt of packages containing the counterfeit money orders. Count one did not allege knowledge, however count 2 did allege that the defendant acted knowingly. The Defendant plead guilty to count one.

Brown’s jurisdictional argument went like this. The indictment was defective on its face because count one did not include the required mens rea element, which is an essential element of section 473 that makes if a crime to receive and/or pass counterfeit money orders. Because of this omission, Brown argued the indictment does not state a federal crime and therefore the district court never had jurisdiction to sentence her.
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Reeves and five codenfendants in U.S. v. Reeves were convicted following a nine day trial of federal drug charges including conspiracy to distribute more than five kilograms of cocaine, possession of more than 50 grams of crack cocaine, and possession of a firearm by a convicted felon. The indictment followed nearly one year of investigation by the Georgia Bureau of Investigation and the Drug Enforcement Agency into the drug activities of individuals involved in drug distribution in the area of Baldwin County, Georgia. Agents used video surveillance and court ordered wiretaps to determine that numerous coconspirators were involved in large scale cocaine distribution network starting from a Mexican supplier of large quantities down to low level distributors of small quantities.

Reeves challenged his conspiracy conviction arguing that the facts showed he and his coconspirators were not part of a single criminal agreement but rather he just bought and sold cocaine in the ordinary course of several discrete agreements. The court rejected his arguments finding that he regularly purchased from one coconspirator and repeatedly sold to the same street-level distributors was more than adequate evidence for the jury to find a single overarching conspiracy to possess with intent to distribute cocaine. Reeves’ codefendant wife argued the evidence was insufficient to convict her of the conspiracy particularly because there was no evidence she personally distributed drugs. The court of appeals disagreed on the basis of the tape recorded telephone conversations presented at trial showing her knowledge of the cocaine conspiracy. Those conversations showed that a reasonable jury could find that the wife knew there was cocaine hidden in the house, that she agree to dispose of it after coconspirator was arrested, and that she tried to conceal the conspiracy by falsely tell the police that her codefendant husband lived at another address.

Another issue the wife raised was the admission of telephone recordings without proper authentication. The court of appeals found there was plenty of evidence establishing her voice on the recordings, including testifying on her own behalf in which she acknowledged speaking on the phone and identifying her own voice.

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In U.S. v. Ransfer, the defendants were convicted of a Hobbs Act violations, and the use and carrying of firearms during the commission of a violent crime. The first issue the defendants raised in challenging these federal criminal convictions was the admission of evidence resulting from the installation and use of a GPS tracking device without a warrant. It used to determine the location of a Ford expedition that was used in the commission of several robberies. The defendants relied on U.S. vs. Jones, a 2012 Supreme Court case stating that installing a GPS tracking devise on a vehicle and tracking the vehicle’s movement was a search under the fourth amendment and required a warrant. The police installed the tracking device on May 27, 2011, before the Jones decision was issued in 2012. Prior to the Jones decision the prevailing law in the 11th circuit said that law enforcement officers did not violate the Fourth amendment by placing a tracking device on vehicle parked in a public place and to track the vehicles moment on public roads if the officers that reasonable suspicion to initiate surveillance of the vehicle. The Eleventh Circuit found that the officers were in good faith and it was reasonable for the officers to rely on long standing precedent in attaching the GPS without a warrant by installing electronic tracking device of vehicle without a warrant. Because there was clear precedent in the 11th circuit stating that the police did not violate the fourth amendment, the search was not subject to the exclusionary rule.

In their second issue, the defendants challenged the lead an officer’s testimony on grounds that it was hearsay. The officer testified about the identities and their suspicious activities from information learned from out of court sources. The court concluded that his testimony was based on his investigation review of a complex investigation in which he supervised a months-long endeavor to identify and locate the perpetrators of this series of armed robberies. His statements were not offered to rehabilitate any witness. Instead he was merely providing a summary of the investigation and his background information shed light on why the officer conducted the investigation in the manner that he get even if it was an error it was not reversible because the evidence about which he testified was otherwise admissible on the record.

The defendants challenge the convictions on the basis of sufficiency of the evidence. All of the convictions were affirmed except for the robbery of a specific CVS for one defendants, which was reversed. The court found the evidence was insufficient to prove one of the defendants was involved in this particular robbery because the evidence supporting his conviction in the other robberies was absent here. There was no evidence he was ever in the CVS or that he did anything prior to or during the robbery to further the crime.

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In U.S. v Martinez the Defendant appealed her federal criminal conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. The threat came when a talk show host at a Ft. Lauderdale radio station received an anonymous email that expressing support for the second amendment gun rights, and the anonymous sender said he was planning something big around a government building, a post office “maybe even a school, I’m going to walk in and teach all the government hacks working there what the 2nd amendment is all about..” Several hours later an anonymous woman called the station telling them that her husband sent the email, that he was mentally ill, and that he was now planning to open fire at a nearby school. The anonymous woman implored the station to broadcast a plea asking her husband not to carry out the shooting. The phone call resulted in a lockdown of all Broward County schools. After investigators discovered the anonymous calls were sent by the defendant, she was indicted for making a threat in violation of § 875(c). She pleaded guilty reserving the right to appeal her challenges to the statute.

Martinez claimed the indictment was insufficient because it did not allege Martinez subjectively convey a threat to injure others. She argued that the Supreme Court’s decision in Virginia v. Black drew the distinction between true threats and First Amendment protected speech based upon the speaker’s subjective intent, and therefore a conviction required proof the defendant subjectively intended to make a threat. In Black, the Supreme Court addressed a state statute making it a crime to burn a cross with the intent of intimidating any person or group. Martinez argued that Black imported a subjective-intent analysis into the true threats doctrine. In rejecting Martinez’ argument the Eleventh Circuit found that prior to Virginia v. Black, the Supreme Court did not require a subjective analysis for true threats, rather the threats are evaluated on a the objective characteristics of the speech and the context in which it was made. Most federal courts defined true threats according to an objective standard. The Eleventh Circuit found that the Supreme Court’s decision in Virginia v. Black was based on the overbreadth of a specific statute and not whether all threats are determined by a subjective or objective analysis. The Eleventh Circuit concluded that to be convicted under § 875, Martinez need not subjectively intent to her statement to be a threat.

Martinez also argued that § 875(c) was unconstitutionally overbroad because it did not require the Government to prove the speaker subjectively intended her statements to constitute a threat. The Eleventh Circuit found no merit in this challenge. The actus reus of the statute is transmitting a true threat and a true threat is determined from the position of an objective, reasonable person. Section 875(c) is silent as to mens rea and does not require and showing of specific intent. The statute is a general intent offense that requires the government to show the defendant 1) transmitted a communication knowingly, and 2) that the communication would be construed by a reasonable person as a serious expression of an intent to inflict harm. It does not require the Government to prove a defendant specifically intended his or her statements to be threatening.

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The defendant in U.S. v. Rodriguez was convicted and sentenced to 120 months for conspiracy to commit the crime of federal wire fraud. He raised two issues on appeal. First he argued the evidence was not sufficient to support the conviction. The evidence at trial showed that from 2003 through 2007 Rodriguez owned and operated four different companies that sold coffee machines and other vending machines to the public. His companies tried to generate sales by posting ads on the internet seeking investors looking to a own their own small business by offering investment in new coffee machine, vending machine or drinking water machine. Rodriguez or his associates induced customers to buy products by offering a number of guarantees. Sales people would routinely guarantee the amount of money that customers would make each day and how quickly they would recoup their money. They promised to provide advanced marketing analytics to secure high-end locations where machines would have plenty of potential patrons. The companies also promised technical support and assistance and if not satisfied they could return the machines for a full refund. These guarantees were too good to be true. The machines arrived in months rather than weeks, if they arrived at all. When they did arrive, many customers found they did not work or they cost more to operate than they had been advertised. The locations the machines were placed in were in remote locations rather than high-end venues and they could barely cover their operational costs. Many customers testified their machines generated zero profits or substantial losses. None said they were able to recoup the cost of the initial investment. When they asked Rodriguez for help with the machines, there was no technical support as promised. Rodriguez almost never honored the money back guarantee when customers asked for a refund. Furthermore, the evidence showed that Rodriguez knew that this was happening and yet he continued to sell the machines to customers and guaranteed profit figures he knew were not real. Even after receiving a cease and desist order from the Maryland Attorney General, he created new companies selling different machines. While trying to hide his ties to the earlier companies from his prospective customers.

To support a conviction for wire fraud the evidence must show the defendant intentionally participated in a scheme to defraud another of money or property and used or caused the use of wires for executing the fraud. Evidence to sustain a conspiracy conviction requires proof the defendant knew and willfully joined the unlawful scheme to defraud. While puffing or sellers talk is not a crime under the federal fraud statutes, fraud requires proof of a material misrepresentation or the omission of a material fact calculated to deceive another out of money or property. The evidence showed Rodriguez did not simply puff up the profitability of his machines to prospective customers, rather he made material misrepresentations of fact in the course of an ongoing scheme to defraud. Rodriguez guaranteed specific profit figures and provided a definitive time for when his customers would recoup their investments, and he did this knowing his representations were completely unfounded. He knew his sales associates did no research on the placement of the machines and placed them in haphazard locations. He was not just overstating the facts to sell his product but he was actively concealing relevant information from potential customers. This type of federal crime is commonly prosecuted in Miami and the Southern District of Florida.

Rodriguez argued against the 4 level enhancement based on the number of victims. At sentencing he argued the government only proved 10 victims. At the sentencing the government presented 42 affidavits from victims who suffered losses and presented a summary chart indicating there were 238 victims but it provided no witnesses nor did it provide any underlying data for the chart. The court erred in finding the offense involved more than 50 victims because the government presented no witnesses to authenticate what the chart represented, how it was prepare, or by whom. While the district court could consider trial evidence, there was no testimony or evidence tying the summary chart to any of the trial evidence. There was no witness to verify that the information on the chart was correct. The summary chart amounted to little more than an allegation by the government on a piece of paper that Rodriguez’ offense involved more than 50 victims.

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In U.S. v. Lang the defendant was indicted on 85 counts of violating 18 U.S.C. § 5324 which makes it a crime to structure cash transactions for the purpose of evading the requirement that a financial institution file a report with the Department of Treasury of a cash transaction by any person on a single day exceeding $10,000. He was convicted of 70 counts and on appeal he challenged the sufficiency of the indictment. The statute prohibits a person from structuring any transaction with one or more domestic financial institutions, in an amount which by regulation is $10,000. In this federal white collar crime, the issue here is whether one or more structuring crimes has been committed for an evasion involving breaking down a single amount that exceeds $10,000. Structuring according to the Supreme Court precedent is breaking up a single transaction above the reporting threshold into two or more separate transactions for the purpose of evading a financial institutions reporting requirement. The court of appeals concluded that in order to evade the reporting requirements the structured transaction must involve an amount that is more than $10,000 or else there could be no evasion. A single cash transactions were not sufficient to set forth each structuring count. The court considered other circuit decisions regarding the question about the proper unit of prosecution for structuring. The Seventh and the Tenth Circuits found that the structuring itself and not the individual deposits is the unit of the crime. The Tenth Circuit reached the same conclusion in a case where a defendant paid a bank three separate payments of 9,000, 9,000 and 6,000 on three separate days to avoid a $24,000 cash payment.

In this case the indictment charged a separate structuring crime for each check less than $10,000 and no combination of two or more checks is alleged in any count. A cash transaction in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement and that requirement does not apply to a single cash transaction below the threshold. The government’s theory is that Lang received from one source 21 payments exceeding $10,000 over a period of 8 months and had broken down the larger payments into multiple checks each of which was less than $10,000 and he cashed those checks separately to evade the reporting requirements. Instead of a series of counts each alleging payments totaling more than $10,000 that were structured into checks of smaller amounts, which were cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. “When cashed checks come to the structuring dance, it takes two to tango.” Allegations from separate counts cannot be combined to allege what is missing in the count itself. For these reasons the indictment was found to be so defective that it does not, by any reasonable construction, charge an offense for which the defendant was convicted.

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In U.S. v. Williams, the defendant was convicted in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C.§ 922(g), possession of crack cocaine, and possession of a firearm in furtherance of a drug trafficking crime. On appeal he challenged the introduction of evidence seized as a result of an unlawful search. Williams was arrested when two Miami Police Officers approached a rooming house in the Coconut Grove section of Miami to investigate complaints that narcotics were being sold from the location. After the officers knocked on the door, Williams answered and the officer questioned him and eventually asked Williams if he had anything illegal on him. According to the officer, Williams said “go ahead, I ain’t got nothing.” When the officer reached for William’s pocket, Williams pushed him in the chest area causing the officer to stumble backwards. Following that encounter, Williams then ran inside the house to the back of the house. The two officers gave chase and caught him at the end of the house. During the struggle to place handcuffs on Williams, one of the officers saw a semiautomatic gun fall out of the William’s waistband and land nearby. The gun was recovered and after searching Williams’ pocket they found 21 small bags of crack cocaine in a cigarette box and $236 in cash.

Williams filed a motion to suppress the evidence seized on grounds the officers had no probable cause or reasonable suspicion he was dealing in drugs. Williams argued the evidence was seized as a result of an illegal, nonconsensual search. Even if the initial encounter was valid, the officer’s attempt to search was invalid because Williams never consented to the search. Finally he argued that even if he consented at first, he withdrew his consent. During the suppression hearing Williams disputed the officer’s version of the incident. He claimed he denied having any drugs when asked by the officer. When the officer asked if he would mind being searched, Williams denied giving consent and said that when the officer reached for his pockets, he only pushed the officers hands away because he already refused the consent to a search.

The court of appeals upheld the denial of the suppression motion. First the district court did not err in making a credibility finding against the defendant. There was no Fourth Amendment violation by the officer’s entry upon the private property to knock on the door. Their purpose was to investigate the present of criminal activity upon receiving complaints. The court of appeals credited the officer’s account that they obtained consent to search Williams. The officer said that Williams struck him, giving the officer probable cause to arrest Williams for resisting arrest with violence or battery on a law enforcement officer. The court noted that an officer is allowed to enter a dwelling without a warrant if he is in “hot pursuit” of a suspect. The officers could therefore pursue Williams into the house.

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In U.S. v. Yates the defendant and his crew were on a commercial fishing trip into the Gulf of Mexico when he was stopped by a federally deputized Florida Fish and Wildlife officer on patrol for fishery violations and compliance. After boarding the defendant’s boat, he noticed red grouper that appeared to be less than the 20-inch minimum size limit. He measured them with mouths closed and determined there were 72 grouper that clearly measured less than 20 inches. He separated the undersized one into crates, issued a citation, and instructed the defendant not to disturb the crates. He told him that the National Marine Fisheries Service would seize them upon the vessel’s return to port. Instead of following the instructions, the captain had his crew throw the undersized fish overboard and replaced them with other larger grouper. When the vessel returned to port in Florida and the officer measured the fish, he suspected they were not the same fish he previously measured. The switch was discovered after a crewmember was interviewed. The captain was charged and convicted of knowingly disposing of undersized fish in order to prevent the government from taking custody and control in violation of 18 U.S.C. §2232(a), and was convicted of destroying a “tangible object with the intent to impede obstruct or influence the government’s investigation into harvesting undersized grouper” in violation of 18 U.S.C. §1519.

Insufficient evidence argument rejected.

The defendant argued on appeal there was insufficient evidence that the fish thrown overboard were undersized because the officer failed to measure the grouper with mouths open and instead measured them with mouths closed. He argued there is speculation as to whether the fish would have been undersized if measured with mouths opened. The court rejected this argument finding that there was conflicting testimony as to whether this would have made any difference, and the jury was free to weigh and decide the issue. Furthermore, the defendant’s directing the crew to throw fish overboard together with his admission that he had at least a few undersized fish on his boat when the officer first measured them, was evidence he believed the fish were undersized.

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The defendant in U.S. v Fries was convicted of transferring a firearm to an out-of-state resident which is a violation of federal criminal laws when neither the seller nor the buyer was a licensed firearms dealer. 18 U.S.C. 922(a)(5) make a crime for a seller to sell a weapon to a nonresident, if neither the seller or the buyer are licensed dealers. Fries was arrested when ATF agent, posing as a Georgia resident, purchased a gun from Fries, non-licensed seller, at a Gun and Knife show in Tallahassee, Florida. Fries was convicted following a trial, but at the close of the government’s case his attorney did not file a motion for judgment of acquittal, nor did he filed one at the close of all the evidence, or in a post-trial motion. Fries filed a notice of appeal, and subsequently his attorney filed a motion to withdraw and an Anders brief, arguing that the record revealed no arguable issue of merit. The court of appeals denied the motion and ordered briefing on an issue relevant to this decision: Whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.

For this reason, the issue raised by the defendant on appeal was the sufficiency of the evidence. To convict, the government must offer evidence on these four elements: 1) the defendant was not a licensed firearms dealer, importer, manufacturer or collector; 2) the defendant sold, transferred, traded or gave to another person; 3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and 4) the defendant knew or had reasonable cause to believe that the person receiving the firearm did not reside in the state of the defendant’s residence. Because Fries did not move for a judgment of acquittal or preserve the argument, the court of appeals held that it is required to find that either the record is devoid of evidence of an essential element of the crime, or “that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.”

After combing the entire record, the court of appeals found no evidence that the person the defendant sold the firearm to did not possess a firearms license. The government argued the jury could find evidence the buyer was unlicensed from testimony between the defendant and various ATF agents in which Fries apparently demonstrated knowledge that it would be illegal to sell to a non-resident unless that person held a license. The court of appeals rejected this argument. Because Fries lacked personal knowledge of the buyers licensure status, the defendant’s subjective believe he was executing a transaction with an unlicensed person does not bear on the objective state of affairs as they existed at the time of the sale. There was no evidence that the undercover buyer was in fact an unlicensed buyer at the time of the sale. The court held the lack of evidence was not harmless error. Though there was no contemporaneous objection or motion at trial, permitting the conviction to stand where government failed to offer any evidence of an essential element of the crime, “would do great damage to the considerations of due process that the serve as a fundamental bulwark of our criminal justice system.”

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From the 11th judicial circuit in Miami, Florida, in U.S. v. Vernon, the defendants were convicted of health care fraud following a trial. The charges involved dispensing factor medication, a blood clotting medication used to treat hemophilia. Defendant Vernon ran a specialty pharmacy that dispensed prescriptions for factor medication, an expensive medication that earned big profits as a result of the high Medicare reimbursement rate. In order to gain more factor medication business the business would pay individuals and businesses large percentages of its profit for referring their hemophiliac clients to the defendant’s company for filling prescriptions. Other defendants were paid kickbacks of up to 45 % of the profit earned from filling the prescriptions for clients. Another defendant, Waters, had several family members who were hemophiliacs and he moved these patients from the competitor to the Vernon’s pharmacy after he was hired by the company as a full time employee and he signed a contract as a hemophilia sales associate earning $400,000 in 2007, $700,000 in 2008, $325,000 in 2009, together with many fringe benefits. In exchange for these payments Waters ensured that his hemophiliac clients filled their medication through defendants’ company. He did not recruit new patients as his contract required. The jury found Vernon guilty of violating the anti-kickback statute, which criminalizes the offering or paying of kickbacks. Following the verdict the court set aside the guilty verdict and granting his Rule 29 motion. The government appealed. Two defendants appealed the denial of rule 29 motions.

The 11th Circuit reversed the district court’s order granting Vernon’s Rule 29 motion because it found sufficient evidence Vernon violated the Anti-Kickback statute,42 U.S.C. 1320a-7b(b)(2)(A) by knowingly and willfully paying money to Brill, who had “clients” that were also hemophilia patients. The evidence showed that the purported employee relationship between Waters and the Vernon’s company was sham. Waters worked at home rarely visiting the office, received no oversight or direction from the pharmacy, spent most of this time in casinos or performing other non-work related tasks. Another defendant, Brill, referred to Vernon’s pharmacy to fill their prescriptions in exchange for payments. The court rejected Vernon’s argument that the language “to induce” Brill “to refer an individual” to Vernon’s pharmacy was a term of art that means a request by a physician for an item or service. It found it included referring by any individual and could apply to Brill.

Vernon also argued the jury instruction misstated the anti-kickback law because it allowed the jury to convict him without finding the required nexus between the improper referrals and Medicare coverage that is without finding that Jeff Vernon and the pharmacy paid kickbacks for the referral of patients whose factor medication prescriptions were covered by Medicaid. He argued that the jury instructions allowed convictions so long as the referred patients received Medicaid benefits for some health care services, even services unrelated to the illegal referrals. The 11th Circuit found no error because any doubt left by the instruction was cured by the indictment itself which set forth the required nexus between federal health care benefits and the services provided to patients.

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