Federal Trial Issues

Published on: September 16, 2011

The prosecution did not have to prove patient’s death was foreseeable to physician for unlawfully dispensing controlled substance drugs to patient

The defendant in U.S. v. Webb was physician charged with unlawfully distributing numerous controlled substances such as oxycodone and fentanyl. Three of his patients died as a result of their over use and he was charged with enhanced provisions of the controlled substances law and enhanced provision of the healthcare fraud statute. He was charged with dispensing oxycoten, fentanyl, and alprazolan with death resulting from these three pain killers. Charges for a crime such as this have been filed in the past against other doctors in Miami and South Florida. This will probably continue in the future if there are fatalities resulting from the abuse of pain medicine. Webb raised three arguments on his appeal.

The judge’s instruction to the jury was error,
The evidence was not sufficient to sustain a conviction, and

Published on: August 31, 2011

Court of Appeals reversed sanctions against the government for bad faith prosecution under the Hyde Amendment and set aside public reprimands against prosecutors

by The Swartz Law Firm

In a 2 to 1 decision the Eleventh Circuit Court of Appeals reversed a district court’s sanctions imposed under the Hyde Amendment. The majority called this case a high stakes appeal involving the sovereign immunity of the United States, the separation of powers and the civil rights and professional reputation of two federal prosecutors. In U.S. v. Shaygan, Dr. Shaygan was investigated by the D.E.A. after one of his patients died from a lethal combination of prescription drug and illegal drug. He was charged in a 23 count indictment with dispensing controlled substances outside the scope of professional practice. Shaygan’s attorney moved to suppress statements he made to agents alleging a violation of his right to counsel. Soon after the motion was filed, the AUSA informed the defense counsel that if the Defendant chose to litigate the issues, there would be no more plea discussions a “seismic shift” would result in the way he would prosecute the case. Within weeks, the government filed a superseding indictment containing 141 additional counts based on the newly identified patients.

During the pretrial phase, the government investigator expressed concern to the government prosecutors that he thought there was possible witness tampering by the defense team. After the two assistants approached the chief of narcotics section, an investigation was opened, though permission from United State Attorney was never given. A separate investigation of the defense team opened up under the direction of the chief of narcotics. The two witnesses recorded conversations with the defense investigator. After listening to the conversations, the chief of narcotics determined nothing wrong took place.

At trial, one of the cooperating government witnesses mentioned in cross examination that he recorded a conversation with the attorney. That was when the defendant’s attorneys learned they were subjects of a parallel witness tampering investigation and that two government witnesses were acting as informants. The defendant was allowed to reopen cross examination and the jury heard about the parallel investigation of the defendant’s attorneys
After the acquittal, the Defendant filed a motion for attorney’s fees under the Hyde Amendment. The district court held a hearing and granted the defendant’s Hyde Amendment motion awarding fees in the amount of $601,795 for Miami Attorneys who represented the acquitted of the crime chargee in the superseding indictment. It concluded that the prosecutors acted vexatiously and in bad faith in bringing the superseding indictment. The district court also publicly reprimanded the prosecutors.

The court of appeals reversed, stating that the district court misinterpreted and misapplied the Hyde Amendment. It reviewed the evidence against Shaygan and found the superseding indictment was not filed in bad faith, despite the prosecutor’s ill will towards the defense for filing a motion to suppress. The record shows the prosecutor has an objectively reasonable basis for superseding the indictment. It in light of the evidence, the majority found the charges were not objectively filed in bad faith. The court compared the standard to civil rules where bad faith is an objective standard that is satisfied when an attorney knowingly and recklessly pursues a frivolous claim. Imposing sanctions on the government for exercising prosecutorial discretion would conflict with the separation of powers clause of the constitution.
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Published on: August 30, 2011

The Court of Appeals upheld a trial court’s decision not to sever the defendant’s joint trial with co-defendants accused of slaying a drug dealer and his family

by The Swartz Law Firm

This case does not involve white collar crime. But it involves the issue of a joint trial with overwhelming bad evidence against the co-defendant, so it is still important. In U.S. v. Lopez this defendant appealed her drug trafficking conspiracy conviction. She was tried with two co-defendants, which were charged with the same drug conspiracy but the charges against the co-defendants included murder charges. Lopez appealed the denial of her motion for severance, claiming prejudice from having her trial along side the other two.

Another drug dealer, an associate of the two co-defendants, was apparently heading north from Miami along the Florida turnpike with his wife and two children in the car. The co-defendants were driving on the turnpike at the same time and communicated with each other by cell phone along the way. Both cars stopped near the Ft Pierce exit in the early hours of the morning along the side of the highway. There, the co-defendants robbed the victim drug dealer of 15 kilos of cocaine. The co-defendants drive off with the victim drug dealer’s car, but not before shooting and killing, the drug dealer, his wife and their two children. The two co-defendants were charged with a carjacking, four counts of murder. The murder committed by two co-defendants was particularly ruthless. This crime received much publicity in Miami.

The federal appellate court outlined the general body of law dealing with joint trials and emphasizing the heavy burden on the defendant to justify separate trials. The general rule on joint trials is that defendants indicted together are usually tried together. That rule is more pronounced in conspiracy cases where the principal is “defendants charged with a common conspiracy should be tried together.” To warrant a severance, a defendant must show compelling prejudice under Rule 14 (a) of the Federal Rules of Criminal Procedure. Compelling prejudice means a joint trial would actually prejudice the defendant and that a severance is the only remedy for that prejudice, such that a jury instruction or any other remedy will not cure the prejudice. The appellate court made this observation about the “prejudice.” “Anything that increases the likelihood of a conviction ‘prejudices’ the defendant in the ordinary sense of the word, but in severance law ‘prejudice’ is not used in the ordinary sense of the word.”

He defendant gave these reasons for a severance:
Prolonged jury selection;
Requirement that they make unanimous agreement for peremptory strikes;
Capital charges mean the co-defendants have to bring out irrelevant matters;
Hours of medical autopsy and gruesome photos;
One of the co-defendants’ attorney conceded to the jury that were as a drug conspiracy and defendant was the head of it.

The appellate court acknowledged the best argument was that a joint trial allowed for the introduction of evidence that either of the two co-defendants murdered the fellow drug dealer his wife and children. The court agreed that no attorney representing a defendant charged with a crime would want this evidence before a jury at their trial even if the jury is instructed they had nothing to do with it. The appellate court found no prejudice because the trial court repeatedly instructed the jury to consider evidence against only those defendants against whom it is implicated and to assess guilty or innocence separately.
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Published on: May 15, 2011

Muslim Imam in Miami arrested for giving financial aid to Pakistan Taliban.

by The Swartz Law Firm

On May 14, 2011, FBI agents in Miami arrested Hafiz Muhammad Ali Khan, 76 year-old Imam, on charges of conspiracy along with four other family members to give financial aid to terrorist activities of the Taliban rebels in Pakistan. The indictment alleges specifically that they sent $50,000 to insurgents for guns, training, schools and other resources to carry out violent activities. According to the federal charges the government tapped phone conversations of Khan and others over the course of a two year period. In one of those conversations it is alleged that Hafiz Khan spoke with a son about calling for an attack on the Pakistani Assembly. In another conversation the government claims Khan talked about Pakistani insurgents and praised to the Taliban in Afghanistan for conducting a raid on U.S. soldiers. The United States Attorney in Miami announced that the evidence was based on the wiretapped conversations well as bank records of financial transactions by Khan to a bank account in Pakistan. The arrests were first reported by Jay Weaver of the Miami Herald.

Family members of Mr. Khan announced that none of his family supports the Taliban. Others in the South Florida Muslim community were stunned by the news, and all echoed the same sentiments that these charges are out of character for Mr. Khan, a soft-spoken, sickly man. The Muslim Communities Association issued a statement condemning any act of support for terrorism while emphasizing that those arrested are presumed innocent until proven guilty.

This indictment is the first terrorism case in the South Florida Federal court since the Bush Administrations prosecution against Jose Padilla, one time labeled an enemy combatant, conviction followed a five month trial in Miami. The indictment charging Khan is founded on the same material support statute as the Padilla case, which makes it a crime to supply money to groups overseas involved terrorist activities. Padilla and his co-defendants were charged with giving Padilla financial assistance and support in traveling to and attending an Al Qaeda training camp in Afghanistan. The Padilla case is still pending before the Federal Court of Appeals in Atlanta. Ken Swartz of the Swartz Law Firm represented Adham Hassoun, who was charged along with Jose Padilla.

Published on: May 11, 2011

Miami lawyer faces arrest for failure to show up for his client’s trial

by The Swartz Law Firm

According to a report by Jay Weaver of the Miami Herald, a Federal Judge issued an arrest warrant for lawyer Michael Walsh for his failure to appear in Federal Court. Walsh failed to show up for the start of a Federal mortgage fraud trial for John Guaracino on Monday May 9, 2010. The Federal mortgage fraud trial is the second of two related mortgage fraud cases involving law enforcement officers, mortgage brokers, title processors and lawyers who were charged with conspiracy to defraud banks by falsifying mortgage loan applications. U.S. District Judge James Cohn issued a “Show Cause” order for Walsh to appear the following day to explain why Walsh should not be held in contempt. When he failed to show for the Show Cause hearing, Judge Cohn issued an arrest warrant for the attorney’s arrest. Prosecutors have accused Guaracino, a Plantation police officer, of recruiting other officers from the Plantation Police Department to join a conspiracy to defraud the banks.

The first trial in April ended with the acquittal of three officers according to the Ft. Lauderdale SunSentinel. Prosecutors tried to argue that the officers lied on loan applications to qualify for mortgage loans totaling $16 million, which they could not otherwise afford on their salaries. The defense claimed the lies were placed on the mortgage applications without their knowledge by unscrupulous mortgage brokers who handled the transactions. The brokers testified for the government under plea deals, admitting they forged signatures and submitted false information on applications they handled.

Guaracino’s trial will likely be postmarked as a result of his attorney’s failure to show for trial. Walsh’s problems also include a pending assault charge that arose from a dispute he had with his estranged wife. According to the Herald article, Walsh got into an argument with his wife over visitation rights and allegedly shoved her to the kitchen floor and dragged her by the hair to another room. A hearing on that case was scheduled for the same day he was supposed to be in Federal court. It is unknown as of this publishing whether Walsh has been found.