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Court reversed Federal Conviction in Florida for attempting to help dispose of drug money; U.S. v. Friske

This is one of those rare cases where the court of appeals found a Rule 29 motion should have been granted because the facts were insufficient to support a conviction of the charges. In U.S. v Friske the defendant was charged with attempting to obstruct a forfeiture proceeding by attempting to dispose of money subject to a forfeiture proceeding in violation of 18 U.S.C. 1512(c)(2). The defendant was convicted following a trial. The court of appeals vacated the conviction and ruled there was insufficient evidence showing that he was guilty. The facts as presented at trial showed as follows. William Erickson had been indicted for drug conspiracy charges related to a marijuana grow operation. Erickson called Friske from jail and asked Fiske to travel to Erickson’s home to do a repair job. He told Friske the job required Friske to don a pair of gloves, get on his hands and knees under the pool deck.

Agents intercepted these jail calls to Friske and headed out to the property the day before Friske would get there After digging in the area describe by Erickson, they found $375,000 hidden in a pvc pipe buried under the pool decking. The next day, when the agents arrived they found Friske on the property wearing a pair of gloves, holding a flashlight, dirt on his chest and arms. After questioning and a search of his van revealed letters from Erickson asking him to find some things at Erickson’s house and take them back to Friske’s home. When confronted about digging around the pool deck, he claimed he was looking for wood rot. Later, on the phone with Erickson, Friske is recorded as saying the DEA agents had been on the property but Agents arrived while he was there. He said the agents did not “buy it” when he told the agents the pilings underneath the deck needed repair because he was fixing and securing the property for Erickson.

A conviction under 18 U.S.C. 1512(c)(2) requires the following:
• that there be n official proceeding taking place,
• the defendant’s conduct constituted a substantial step toward the commission of the crime,
• that the defendant acted with improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to obstruct the forfeiture proceeding,
• the natural and probable effect of the conduct would be the interference with the administration of justice.
Wrestling with the requirement that Friske know that there was an official proceeding, the court agreed with other circuits in finding that the defendant “must have a relationship in time causation or logic with the judicial proceeding.”

In Friske the government was required to prove that Friske knew of or at least foresaw the forfeiture proceeding. Here there was not one scintilla of evidence he knew the money was subject to a forfeiture. In a criminal case, the verdict cannot be based on speculation. An experience criminal defense lawyer knows that a case can be dismissed if the prosecution fails to present sufficient evidence of a crime.

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