Articles Posted in Federal Trial Issues

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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.

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Sanders was convicted of distributing cocaine after he was stopped by Georgia State Patrol driving a tractor trailer containing 153 kilograms of cocaine. After giving consent to the search of the truck, officers found cocaine hidden in the trailer hidden inside a pallet of rotting cabbage. At trial, the jury was instructed that Sanders did not have to know the nature of the particular drug he possessed in the trailer, but only had to know it was a controlled substance. When a jury question asked whether the term controlled substance and cocaine were interchangeable, the trial court instructed that they are not interchangeable because controlled substance is a broader terms than cocaine and could mean drugs such as methamphetamines or other drugs. In U.S. v. Sanders the 11th Circuit agreed with this instruction.

Although a jury must determine the quantity and type of drug involved, the government is not required to prove the defendant had knowledge of the particular drug type or quantity for a sentence enhancement under 841(b). The trial court’s instructions that defendant only has to know it is a controlled substance and did not have to know it was actually cocaine was a correct statement of the law. The defendant relied on a defense that the defendant was just a truck driver and was unaware he transported cocaine in the cabbage. Rather he argued the government could have let the defendant plea to transporting marijuana but was trying to put the whole truckload of cocaine on the defendant. The defense suggested that he only intended to transport marijuana. The district court did not amend or broaden the indictment by instructing the jury that Sanders did not have to specifically know that he possessed cocaine. The indictment charged a generic controlled substance violation and the district court correctly instructed the jury that sanders had to know only that he was conspiring to distribute any controlled substance.

The admission of a 22 year old conviction for selling 1.4 grams of marijuana was harmless error. Sanders appealed the admission under Rule 404(b) of the Federal Rules of Evidence of his 1988 conviction for selling 1.4 grams of marijuana. Sanders argued that any probative value of the prior conviction was diminished by the 22 year gap between the prior and the trial, the lack of similarity between the street-level sale and the 153 kilogram trafficking conspiracy, and that the government had no need to introduce the 1988 conviction in light of other evidence. The 11th Circuit concluded the trial court abused its discretion by admitting the 22 year old conviction fo 1.4 grams of marijuana, finding no probative value in establishing Sanders intent to enter in the conspiracy. Nevertheless the fact that the prior conviction was so old and dissimilar that it was unlikely the jury convicted Sanders because of the prior conviction, given the abundant evidence admitted at trial. The admission of the prior conviction was considered harmless error in light of the overwhelming evidence.

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In this unusual result, the 11th Circuit Court of Appeal reversed a conviction and dismissed the case because it found the government would be legally barred from proving a crucial element of the offense. The defendant in U.S. v Valdiviez-Garza

was convicted in the Middle District of Florida, Tampa Florida, of illegally entry by an alien who had been previously removed or deported, in violation section 1326(a). To convict of this offense, the government had to establish beyond a reasonable doubt that the defendant (1) was an alien at the time, (2) who had previously been removed or deported, (3) and had reentered the U.S. after removal; (4) without having received the express consent of the Attorney General. The defendant claimed the government was collaterally estopped in this case from presenting evidence and litigating the defendant’s alienage because of a prior acquittal.

An element of the offense required proof the defendant was an alien at the time of the offense. The defendant had previously been charged following a prior reentry incident, and he was tried and acquitted. In the earlier criminal trial, the defendant disputed the government’s claim that the defendant was an alien with proof he derived his citizenship through his father. The defendant was acquitted. Because the alienage issue was disputed at the prior trial and the jury acquitted, the 11th Circuit found there was reasonable doubt that the defendant was an alien and the government was collaterally estopped in this case from arguing the defendant is an alien. Under the collateral estoppel doctrine, when an issued of fact has been determined by a final judgment, the issue cannot be litigated again between the same parties in any future lawsuit. To determine whether collateral estoppel applies in a criminal proceeding, first the court must ascertain what facts were necessarily determined during the acquittal at the first trial. Second, the court must decide whether the facts determined as part of the prior acquittal are an essential element of the offense charged in the subsequent proceeding.

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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.

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In U.S. v. Davila appealed his tax fraud conviction and 115 month sentence. The only issue addressed in this reversal was that the lower court erred in participating in his Davila’s decision to plead guilty. Several months prior to his plea there was an in camera hearing before a Magistrate where Davila had asked to discharge his court-appointed attorney. He complained that his attorney had not discussed any defense strategies with him except pleading guilty. The Magistrate commented that “there may not be viable defense to these charges” and that the advice from his counsel about pleading guilty may be the best advice an attorney could provide his client. The Magistrate went further with the following comments about pleading guilty:

The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.

Several months later Davila pled guilty to a tax fraud charge. On appeal Davila asked that the conviction be vacated, claiming that the magistrate judge’s comments amounted to an improper participation in his plea discussions. Because Davila failed to object to a Rule 11 violation so the issue was treated as plain error. Under a plain error standard the defendant must show:

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Consalvo v. Secretary for Dept. of Corrections is a federal habeas case arising from a death sentence imposed by a Florida state court for burglary and first-degree murder convictions. After the Florida Supreme Court affirmed Consalvo’s conviction and sentence and denied post conviction relief, Consalvo petitioned the federal district court for habeas corpus relief that was denied. This appeal ensued.

The defendant was convicted of armed burglary and murder of his neighbor, who prior to her death, had been pursuing charges against Consalvo for the theft of money from her car. The victim was stabbed following a break in and video recordings showed Consalvo using her ATM card and driving a car similar to the victim’s. According to an inmate who testified at trial, Consalvo made self incriminating statements while in jail. Consalvo claimed in his post conviction motion in the state court that the witnesses recanted their testimony. Consalvo also argued the state attorney violated Brady by withholding exculpatory evidence. He claimed the state did not disclose the identity of the informant in the jail and that the state attorneys purposely placed the informant with Consalvo and supplied him with information about the case to recruit him to act as the state’s agent. Consalvo also claimed the jailhouse witness received favorable treatment and leniency in exchange for his testimony. The state rebutted by presenting testimony from the assistant state attorneys involved in the case who denied ever having met the witness and who denied giving any promises of leniency in exchange for his testimony. The state court found the witness’s recantation testimony was incredible. Instead the state court credited the testimony of state attorneys who refuted the testimony of the recanting witnesses.

The petitioner also claimed his sentencing judge erred in relying on the deposition testimony of a witness that was not presented in open court at the guilt or the penalty phase, relying on Gardner v. Florida, 97 S.Ct. 1197 (1977), where the Supreme Court found a defendant was denied due process of law when a capital sentence was imposed partly on the basis of confidential information in a pre-sentence report which had not been disclosed to the defendant.

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The issue in Walton v. Attorney General, State of Florida was whether Walton’s second state petition for a writ of habeas corpus was properly filed under the Antiterrorism and Effective Death Penalty Act (AEDPA) so as to toll the one-year limitations period for filing a federal petition for a writ of habeas corpus. Under 28 U.S.C. § 2244, a state court defendant in custody has one year from the date the judgment and sentence becomes final to file a petition for writ of habeas corpus in federal court. The one year limitations period may be tolled by a properly filed application for state court post-conviction or other collateral review. However, an application for post-conviction relief is not properly filed if it is untimely.

Walton was convicted by a Florida court of three murders and sentenced to death. After his convictions and death sentences were affirmed by the Florida Supreme Court, he filed his first application for state collateral review in 1990. On June 30, 2003, the Florida Supreme Court affirmed the denial of Walton’s motion for post-conviction relief and denied his first habeas petition. One week prior, on June 23, 2003, Walton filed a second habeas petition, and on October 3, 2003, the Florida Supreme Court denied it as successive. On September 30, 2004, Walton filed his federal petition for writ of habeas corpus. The federal district court found that Walton’s second state petition was not timely filed so as to toll the federal limitations period. The district court dismissed the petition and the court of appeals affirmed.

A Florida prisoner sentenced to death may file a post conviction relief in a state court trial court, and petition for a writ of habeas corpus in the Florida Supreme Court. But in a death penalty case, all petitions for extraordinary relief, i.e. a habeas petition, must be filed in the Florida Supreme Court simultaneously with the initial brief in the appeal from the denial of a motion for post-conviction relief. Here the defendant did not file his second habeas petition simultaneous with this initial brief in the appeal of the denial of the motion for post-conviction relief. The simultaneous filing requirement is a timing requirement. An untimely state petition is not properly filed and cannot toll the federal limitations period. A post-conviction relief application is not properly filed in state court if it is untimely, and will not operate to toll the one year limitations period for a federal habeas petition.

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The defendants in U.S. v. Augustin, a case known in the Miami area media as the Liberty City Seven case, lost their appeal from convictions for the following offenses:

1. Conspiracy to provide material support to a foreign terrorist organization (Al Qaeda) knowing it to be engaged in terrorist activities;

2. Conspiracy to provide material support (themselves) knowing they would be used in preparation for and in carrying out a violation of 844(f)(1) and (i)(making it a crime to maliciously damage or destroy any property of the United States.); and 3. Conspiracy to destroy by means of explosive a building leased to an agency of the U.S. and with conspiracy to levy was against the U.S.

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A professional sports agent, the defendant in U.S. v. Dominguez was charged and convicted of smuggling 5 Cuban baseball players to the United States, transporting them from Miami to Los Angeles, and then harboring them there until they applied for asylum. Dominguez represented over 100 baseball players, many of whom played for Major League Baseball teams. Some of his clients were Cuban nationals who arrived without official documentation in the United States. According to the government’s theory, he planned to represent them in their baseball contract negotiations and collect a percentage of their earnings.

For his defense, Dominguez invoked the U.S. law known as the Cuban Adjustment Act (CAA) which gives special treatment to Cuban nationals who come to the U.S. and allows Cuban nationals who have no documentation authorizing their presence in the U.S. to remain here without having to prove they are the victim of persecution. The CAA is enforced through the “Wet Foot/ Dry-Foot” policy, which offers the benefits of the CAA to those Cuban nationals who reach U.S. soil (dry feet) while Cubans who are interdicted at sea (wet feet) are repatriated and can not benefit.

Dominguez arranged with his cohort, Medina, to smuggle 5 Cuban baseball players into the U.S., agreeing to give Medina 5% of any Major League Baseball contract the players might sign. The five players were successfully brought in through the Florida Keys. The players were transported to Los Angles where they met with Dominguez and signed agency contracts that included clauses obligating them to pay Medina a percentage of their baseball earnings. Shortly after their arrival, Dominguez arranged for an immigration attorney to process the players through immigration to apply for asylum and parole.

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In U.S. v. Jose Padilla, the court of appeals upheld the conviction of Padilla, commonly known as the “dirty bomber” who was held in solitary confinement for 3 years as an enemy combatant before he was indicted in Miami. Padilla along with Adham Hassoun and Kifah Jayyousi were charged with conspiracy to commit murder overseas and with providing material support intended to be uses in carrying out a conspiracy to murder overseas. The charges stem from activities in support of Islamic violence overseas. The case presented by the government showed the defendants formed a support cell linked to radical Islamists outside the United States and conspired to send money recruits and equipment overseas to groups the defendants knew use violence in efforts to establish Islamic states. This case had its roots in the South Florida area but extended across the globe to Egypt, Afghanistan, and Kosovo.

The evidence against Padilla consisted of a mujahideen identification form recovered from Afghanistan. Fingerprints on the form were linked to Padilla as well as his date of birth and country of origin. The form sated that the applicant had traveled to Egypt for study, Saudi Arabia for hajj, and Yemen for jihad.

The government’s case against the defendants consisted mainly English translations of secretly recorded phone conversations in Arabic. The case agent for the government testified as a lay witness giving his opinions about code words which he interpreted as code words for jihad or violent jihad related activities. He was questioned about each of the calls giving his opinion throughout the calls about the jihadist related groups and activities the defendants were involved with throughout the time period of the calls. He said that people involved in terrorism related cases use code in their communications. He then after reviewing the call transcripts gave his meaning or a long list of code works.

The main issued in the case is the admission of Kavanaugh’s testimony about his interpretation of the alleged code words used by the defendants. The defendant’s argued he could not give lay opinions about the conversations because he was not present during the conversations and did not have a rationally based perception of what the individuals meant. The court majority concluded that Kavanaugh testimony was rationally based on hid perceptions and his perceptions were he having read through the wiretap summaries plus hundreds of verbatim transcripts and listening to calls in English. The court concluded that lay witness FBI agents have been allowed to base opinion testimony on the examination of documents even when the witness was not involved in the activity about which he testified, relying primarily on U.S. v. Hamaker and U. S. v. Gold. Below are a few comments by the panel majority about Kavanaugh’s opinions:
1. “Kavanaugh could testify about the meaning of code words that he learned through his examination of voluminous documents during a five year investigation.”
2. “Kavanaugh’s knowledge of the investigation enabled him to draw inferences about the meanings of code words that the jury could not have readily drawn.”
3. “He limited his testimony to what he learned during this particular investigation and he testified that he interpreted code words based on their context.”

The panel found the evidence was sufficient against Padilla for a reasonable jury to find that he trained with al-Qaeda and shared the co-conspirators intent to support violent jihad overseas. The evidence was sufficient for a reasonable jury to find that both Padilla and Jayyousi were supporting mujahideen overseas engaged in murder maiming and kidnapping. The evidence supported the jury’s reasonable inference that Padilla and Jayyousi knew the training camps trained recruits in war tactics and they shared a common purpose to support violent jihad to regain lands that were once under Islamic control.

The district court did not abuse its discretion in allowing government to call Dr. Rohan Gunaratna as an expert witness in the area of al-Qaeda and its associated groups.

The district court did not err in admitting a 1997 CNN interview with Osama bin Laden. In admitting the tape, court only allowed a 7 minute portion, explained to the jury there was no indication the defendants were connected to 9/11, and instructed the jury not to consider the evidence for its truth but for the state of mind evidence against Hassoun and Jayyousi.
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