Constitution - Bill of Rights Category Archives — Page 11 of 12 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: June 19, 2012

Defendant’s waiver of right to counsel was valid when he admitted having child porn on his computer; federal child porn statute upheld as Constitutional

In U.S. v Woods the defendant was charged with violating federal child pornography laws. In his defense he raised Constitutional challenges under the Fifth Amendment and Sixth Amendments for failure to advise him pursuant to Miranda v. Arizona and he challenged the law the under the Due Process Clause for being vague and overbroad.

Woods was a Navy serviceman when his ex-wife found child pornography on his computer that she took when she moved out. As any ex-wife would do, she turned it over to law enforcement. In this case it went to the Naval Criminal Investigative Services, who sent investigators to his workplace at Ft. Gordon to speak to him. He was escorted by his chief to a room where the investigators were waiting but he was not arrested nor did they tell him he was in custody. Before questioning he was given a military waiver of rights (Fifth and Sixth Amendments) form which he signed. Woods did not ask for an attorney. After signing he admitted to viewing child pornography on his desktop at home but received it inadvertently. He was interviewed a second time. Prior to signing a waiver, he was not told he was under arrest nor was he restrained. He gave a statement that he has searched for and downloaded hundreds of images of child pornography, that he used it for arousal, and admitted incidents of molesting his niece.

1. Motion to Suppress denied.

Published on: June 12, 2012

Unlawful entry into defendant’s home by police did not taint Defendant’s subsequent consent to search his home

by The Swartz Law Firm

In U.S. v. Welch the 11th Circuit found the entry into a defendant’s home was illegal, but the illegal entry did not taint the subsequent consent by the defendant to a search. Welch was charged with being a felon in possession and sentenced to 15 years as an Armed Career Criminal Act because he had three prior violent felony convictions. Welch moved to suppress the gun found in his home and the statements made in the police car because they were the result of an unlawful entry into his home. The district court did find the initial entry into Welch’s apartment was unlawful, but it found the Welch’s subsequent consent to the search was voluntary. The 11th Circuit agreed and affirmed the district court’s denial of the motion to. Here are the relevant facts.

1) While Broward County Sheriffs were searching for a suspect of a convenience store robbery, they had reason to belief the suspect could found at defendant Welch’s apartment.

2) After knocking at the door, someone answered the door but it was not the suspect. When the officers asked if anyone else was in the apartment, he said there was but did not say who.

Published on: April 9, 2012

Conviction and 320 month sentence for engaging in and recording sexually explicit conduct with minors

by The Swartz Law Firm

In U.S. v. Lebowitz the defendant was charged with producing child pornography in violation of 18 U.S.C. §2251(a) and one count of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. §2422. Lebowitz began communicating with a15 year old boy male, K.S. on MySpace who falsely claimed to be 17 or 18 years of age. Lebowitz identified himself as a 47 year old doctor and began chatting on line with K.S. The conversations became sexual in nature, with the defendant sending K.S. a nude photograph of himself. At that point K.S. informed the defendant his true age of 15. After a day of chats, K.S. informed his mother, who called the defendant and told him to stop contacting her son. He did not and the mother contacted law enforcement. With the approval of the county sheriff office, K.S. continued corresponding with the defendant, informing the defendant his true age was 15. Meanwhile, the defendant expressed an interest in pursuing a sexual relation with K.S, a minor.

When the defendant arrived at K.S.’s house, he was arrested. After the arrest, the officer searched his car and found incriminating evidence including condoms, lubricant, and sleeping bags. The officer obtained a search warrant of the defendant’s residence where they seized a VHS tapes engaged in sexual activity with the defendant: one showed a male A.G. aged 16 and the other showing C.R. age 15.

The 11th Circuit upheld the denial of Lebowitz’ Fourth Amendment challenge to the car search. The court held that assuming the search violated the Fourth Amendment, the good faith exception applied because the officer “relied” on the binding 11th Circuit precedent at the time of the search, which allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.

Published on: March 23, 2012

Detention was reasonable when officers learned one of four men had a gun

by The Swartz Law Firm

In U.S. v. Lewis an 11th Circuit panel majority reversed the district court’s order suppressing evidence seized during an investigatory stop in this government interlocutory appeal. The district court in Florida federal court had granted defendant Lewis’ motion to suppress a firearm discovered after he and three associates were briefly detained by law enforcement officers in a parking lot at night. The district court had granted the motion to suppress, finding the detention was unreasonable in violation of the Fourth Amendment.

The trial court found the initial stop was unlawful because the officers lacked any particularized and objective suspicion that any of the four men had been engaged in or were about to engage in criminal activity at the time the officers ordered the men to stop. The men were in fact not engaged in criminal activity, standing by the car, looking in the trunk of the car, talking to each other, standing in the parking lot of a restaurant while it was open, failing to park their cars in the designated spots. When deputy sheriff approached the four he asked whether any of them were carrying guns. One of the four, McRae, told the deputy that he did have one and told the deputy where it was located. No one made a sudden move or attempted to reach for the firearm.

The deputies immediately drew they weapons and ordered all four to sit on the ground, turning the encounter into an investigatory stop. On the ground near the area where defendant Lewis was sitting, the officers found a semi-automatic pistol underneath a car and he was charged with carrying a concealed firearm in violation of Florida law. He was later charged with possession of a firearm by an illegal alien and filed a motion to suppress. The district court granted the motion finding the Terry stop was not lawful because the mere possession of a firearm did not justify the stop and detention, absent any suspicion of the four were involved in any criminal activity. It was not per se unlawful to possess a handgun or illegal to admit to carrying one.

Published on: February 28, 2012

Fifth Amendment protects witness subpoenaed to appear before a grand jury to decrypt contents of his computer hard drive

by The Swartz Law Firm

In U.S. v. John Doe the 11th Circuit came down on the side of a person’s Fifth Amendment right not to incriminate himself. Doe was held in civil contempt for failing to comply with a subpoena duces tecum requiring him to appear before a grand jury and produce the unencrypted contents of Doe’s laptop computers and five external hard drives. Basically the subpoena wanted Doe to decrypt and produce the contents of the computer hard drive and the external hard drives that had been seized during the course of a child pornography investigation. Law enforcement had linked the computer to Doe through IP addresses. Because the forensic examiners were unable to view the encrypted portions of the hard drives, a grand jury subpoena was issued to Doe requiring him to decrypt the contents of the computer hard drives.

When Doe advised the U.S. Attorney that his compliance with the subpoena would violate his Fifth Amendment privilege against self incrimination, the U.S. Attorney applied to the district court for immunity under 18 U.S.C. section 6003 but it limited the immunity to the use of Doe’s act of production of the unencrypted contents of the hard drive. The limited immunity would not extend to the derivative use of the contents of the hard drives as evidence against him in a criminal prosecution. The district court decided that the government’s use of the unencrypted contents in a prosecution against Doe would not constitute derivative use of compelled testimony because the district court believed the act of production did not constitute giving testimony.

The 11th Circuit disagreed, holding that Doe’s decryption and production of the hard drive contents triggered a Fifth Amendment protection because it would be testimonial. It would not be a mere physical act. The decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control and access to the encrypted portions of the drive; and of his capability to decrypt the files.

Published on: January 26, 2012

Doctor’s conviction for dispensing narcotics without a valid medical purpose reversed because autopsy reports of former patients were admitted in violation of the Confrontation Clause

by The Swartz Law Firm

The Defendant in U.S. v Ignasiak was a medical doctor convicted of dispensing controlled substances in violation of the Controlled Substances Act and for committing health care fraud. The prosecution’s theory was that Ignasiak prescribed unnecessary or excessive quantities of controlled substances (pain killers) without a legitimate medical purpose and outside the usual course of professional practice. Ignasiak ran a busy medical practice out of a medical clinic as the only medical doctor in a rural Florida panhandle town, seeing up to 32 patients each day. Evidence showed he was always available for people who became sick and needed to see a doctor right away. Most patients came in to renew their prescriptions, but he always interviewed and examined his patients before they got a prescription.

At some point his practice drew the attention of the federal Agency for Health Care Administration due to concerns that as a family practice doctor he was billing for higher than normal levels of service. The auditor reviewed 30 of the Defendant’s patients’ charts that he selected out of more than 3,700 patients and found the charts did not justify the charges he was submitting to Medicaid. He concluded that Ignasiak had a practice of prescribing certain narcotic pain-killers in significant quantities. A doctor who took over the practice found patient files appeared to show Ignasiak had been operating a pain management clinic rather than a family practice. Patients who wanted the new doctor to write pain medication became angry when he did not. The government presented testimony from individuals who worked in his office to support the government’s theory the Ignasiak’s practice was to mainly prescribe pain killers for patients that were not really sick. The government also presented patients and patient’s family members to further support this theory by testifying about how these patients became addicted.

Seven of Ignasiak’s patients died from what the autopsy reports concluded were pharmaceutical drug overdoses. The government called as a witness the medical examiner who conducted two of these autopsy reports. The district court allowed this medical examiner to testify about the five autopsies conducted by the non-testifying medical examiners, which included the conclusions that the cause of death was accidental drug overdose for each patient. The testifying medical examiner said she agreed with these conclusions.

Published on: July 21, 2011

A pro se defendant who did not understand he had the right to testify in a narrative form is entitled to a new trial

by The Swartz Law Firm

In U.S. v. Ly the defendant was a medical doctor licensed in Georgia to practice medicine and dispense controlled substances to his patients. Ly was charged in federal court with unlawfully dispensing controlled substances by writing prescriptions made “outside the usual course of professional practice and without legitimate medical purpose.” At his arraignment, he requested a court appointed lawyer but this was denied the district court’s probation office determined that Ly had transferred his assets to his wife “to obtain appointed counsel at public expense.” Ly informed the trial court at a hearing that he could not afford a lawyer and would then defend himself pro se. His case proceeded to trial with Ly representing himself. The Government’s case included expert testimony regarding standard prescription practices the regulation of controlled substances, testimony from his patient’s concerning his prescription practices, and testimony from pharmacist who became suspicious of Ly’s practice and stopped filling prescriptions written by Ly.

At the close of the Government’s case, the district court asked Ly at a side-bar if he intended to testify. The colloquy (or dialogue) with the Ly showed that Ly was unaware that he could testify in a narrative form and that he did not need an attorney to ask him questions. The district court did nothing to correct Ly’s misunderstanding about how he could testify.

The record showed that Ly chose not to testify because he believed he could not give his testimony without an attorney asking him questions. He believed that his only testimony would come from the Government’s cross examination. The appellate court found Ly was clearly confused and the district court did not clear up his confusion. A criminal defendant has a fundamental right to testify in his defense, and the right to testify is protected only when made “knowingly and intelligently.” When Ly’s misunderstanding of his right to testify became apparent during the colloquy, the district court was required to correct Ly’s misunderstanding by explaining that Ly could testify in a narrative form. By failing to clear up Ly’s confusion, the district court denied Ly his right to decide knowingly and intelligently.

The Defendant’s confusion about his right to testify made this a case of “exceptional, narrowly defined circumstances” that triggered a district court’s duty to discuss with a defendant his decision whether to testify. The district court’s knowledge of Ly’s confusion required the district court to correct Ly’s misunderstanding. For a defendant represented by counsel, the responsibility falls on counsel to assist the defendant in ensuring that his decision regarding testifying is made knowingly and intelligently. “The district court does not normally engage in a colloquy with the defendant to ensure that the decision was made knowingly and intelligently.”
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Published on: July 17, 2011

Conviction for fraudulent billing Florida and California Medicaid programs for recycled blood-derivative medication was upheld in U.S. v. Bradley

by The Swartz Law Firm

Bradley and codefendants were convicted of conspiracy to commit wire fraud, mail fraud and money laundering along with other federal statutes. Bradley, the lead defendant, owned “Bio-Med Plus,” a pharmaceutical wholesaler that purchased and sold blood-derivatives (intravenous immune globulin) used to treat patients with HIV. The fraud Bradley committed was that he recruited physicians who dispensed blood-derivatives (IVIG) at AIDS clinics in the Miami area to fill their prescription at Bradley’s pharmacies for a kickback. Bradley purchased the unused portions (from patients who failed to appear at the clinic for the IVIG infusion) for one-third of the price that Florida Medicaid paid the pharmacies.

Bio-Med put those derivatives in their inventory and sold the unused derivatives to third party pharmacies in Florida and California for a substantial profit. The third party pharmacies unwittingly billed Medicaid for theses unused prescriptions. Bradley’s pharmacies filled prescriptions with the recycled derivatives and obtained reimbursement from the state’s Medicaid programs.

The Court of Appeals decided that a reasonable jury could find sufficient evidence that the defendants engaged in a scheme to defraud Florida Medicaid and Medi-Cal. It determined that Florida Medicaid and Medi-Cal never intended to reimburse for recycled blood derivatives that had been previously dispensed; that Bradley knew of these policies; that the programs would not knowingly pay for recycled blood derivatives previously dispensed; that the Bradley purchased recycled medications at discount prices from corrupt physicians with the intent to resell them for a significant profit; and that the defendants sold them off at full wholesale prices to pharmacies which dealt almost exclusively with Medicaid patients that bill the Medicaid program as if the blood derivative had never been recycled.
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Published on: June 6, 2011

Curtailing cross examination of a prosecution’s star witness in an Escambia County corruption case was not a violation of the Sixth Amendment

by The Swartz Law Firm

Childers v. Floyd involved a federal habeas petition by Wyon Childers who claimed the Florida state courts violated his rights under the Sixth Amendment’s Confrontation clause. In this En Banc decision the court found that because there was an adjudication in the Florida state courts on the merits of the Sixth Amendment Constitutional claim, the federal courts must show deference to the state courts rulings, as required by the Antiterrorism and Effective Death Penalty Act (” AEDPA”). The En Banc court further found the state court’s decision on the merits was not contrary to, or and unreasonable application of, the Supreme Court Confrontation Clause precedent. Though this case was a habeas petition, it may have an effect on direct appeals raised in federal court involving the limitation on cross examination under the Sixth Amendment Confrontation Clause.

Childers, a county commissioner in Escambia County, Florida, was convicted in state court of bribery in connection with the corrupt purchase by Escambia County of the Pensacola Soccer Complex from owner, Joe Elliot. Childers was involved in paying another Escambia County Commissioner, Willie Junior, to secure Junior’s vote in favor of the sale to Elliot, who purportedly provided Childers and Junior with kickbacks when the county purchased the property. Prior to trial, the State Attorney struck a deal with Junior to plead to bribery charges in exchange for his cooperation. The State granted him immunity from prosecution for all other offenses and agreed to an 18 month sentenced. Eliot and Childers were tried separately. Junior testified at Eliot’s trial, implicating Eliot and Childers about their offering a bribe in exchange for his vote in favor of buying the complex, but Eliot was acquitted.

After the Eliot trial, Junior provided state investigators additional facts that implicated Childers more directly in the soccer stadium deal, but some of his additional facts conflicted with Junior’s prior statements. Hearing these new statements, the State tried to revoke Junior’s plea agreement by filing a “Notice of Revocation of Terms of Plea Agreement” in his case. The state court disallowed the revocation on the grounds that Junior’s statements were not under oath at trial or hearing and therefore not a technically a violation of the plea agreement. The State then proceeded with an amended information against Childers for the same offense, supported by statements provided Junior after Eliot’s acquittal. At Childers’ trial, hiss attorney tried to impeach Junior’s credibility with the fact that the State tried to withdraw his plea agreement and the fact of Eliot’s acquittal by linking them to Junior’s motivations for changing his testimony. The trial court prohibited his attorney from impeaching him with these facts.

Childers filed a federal habeas petition in federal court claiming a Confrontation Clause violation. It was denied by the district court. The appellate court panel reversed finding there was a Confrontation Clause violation with Judge Barkett in the majority and Judge Tjoflat dissenting. The En Banc court vacated the panel decision and found no Confrontation Clause violation, with Judge Tjoflat writing the opinion and Judge Barkett writing a dissent.

The En Banc court gave deference to the state court’s rulings prohibiting Chandler’s attorney from impeaching Junior with the Notice of Revocation of the Plea Agreement and the Eliot acquittal. It decided that the state court’s decision was not unreasonable in view of recent U.S. Supreme Court rulings on limitations by state courts of cross examination of witness bias. The three cases discussed were Davis v. Alaska, Delaware v. Van Arsdall, and Olden v. Kentucky. The En Banc court noted the following two “rules” from these cases.

First, the trial courts may not prohibit all questioning into a witness’ biases. As long as the state court permits some question about a witness’s bias, the state court satisfies the Confrontation Clause requirements. “In each of the precedential cases, the trial court barred the defense from informing the jury of the witness’s potential bias and how that might affect the witness’s testimony. The [Supreme Court], therefore, never had occasion to require trial courts to permit cross-examination on more than the existence of a bias.”
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Published on: May 29, 2011

When the prosecutor said “he” did he mean the Defendant or the blood of his victim?

by The Swartz Law Firm

Though Duke v. Allen does not involve a white collar offense, it is important because it touches on a person’s Fifth Amendment right to remain silent at trial. When an person exercises the right not to testify at trial, the prosecutor can not make any comment about it in closing argument. It is misconduct by a prosecutor to ask a jury cannot consider the defendant’s silence in any way in their deliberations.

Mark Duke was on trial in Alabama state court for the murder of his father and three other persons. In closing arguments the prosecutor summarized the prosecution’s theory. “He [the codefendant who testified for the state] told the truth, ladies and gentleman, and here is how we know it, there’s a witness that you heard from but he didn’t’ come in here and talk to you from the witness stand. After he shot, stabbed, and cut the throat of Randy Duke, he took Randy Duke’s blood with him throughout that house.”

The defendant’s attorney moved for a mistrial and added this comment: “Let the record reflect that the district attorney pointed straight at the defendant when he said that.” In his appeal to the Alabama appeals court, the defendant argued that the prosecutor violated federal and state law by commenting on the defendant’s decision not to testify at trial. The Alabama court disagreed.