Federal Trial Issues

Published on: July 15, 2017

An attorney’s seven-minute absence from the trial did not violate the client’s Sixth Amendment.

A three-judge panel was reversed in U.S. v Roy by the En Banc court and the defendant’s conviction in federal court in Miami was reinstated for reasons explained below. Here is what happened at the trial.

Roy was charged in a five-count indictment with sext crimes related to minor girls. Count one charged him with attempting to enticed a child base on his efforts to arrange a sexual encounter with someone he believed to be a 13-year-old girls in response to an interne ad posted by law enforcement. The other counts involved child pornography and charged him with knowingly possessing visual depictions of child pornography in violation of the federal statute. Each of those counts involved images that were stored in different electronic devices he kept. The charge required that the government prove that under each of the counts he knowingly possessed one or more images of child pornography on the electronic devices.

The issue here, which was the reason for the panel’s decision to overturn the conviction, involved Roy’s federal trial lawyer’s absence during a small a portion of the testimony of the trial.

The En Banc Court concluded that it was a Sixth Amendment constitutional violation for the trial judge to start the trial without the attorney present, but that the error was harmless beyond a reasonable doubt because of the overwhelming evidence offered while counsel was present that went to and proved the charges in counts 2 through 5, which were the only counts relevant to the testimony given during counsel’s absence. The error in the trial took place when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial.

Published on: June 29, 2017

FSU professor avoids federal conviction for embezzling from FSU organization

by The Swartz Law Firm

In U.S. v Doran, Dr. James Doran was convicted under 18 U.S.C. 666 of embezzlement form the Florida State University (FSU) as an organization receiving federal funds. He argued on appeals that he is entitled to a judgment of acquittal because any embezzlement was not from FSU and that the government did not prove that the victimized organization under the statutes was a recipient of federal benefits. Under the federal statute it is a federal crime for and agent of an organization to embezzle or convert to the use of any person other than he rightful owner any property valued at $5,000 or more that is owned or in the custody of that organization, government, or agency. The provision also requires that the organization, government or agency receive in any one year period benefits in excess of $10,000 under a federal program involving a grant contract subsidy, or other form of federal assistance.

The facts as they unfolded at trial showed that Doran was a professor in the College of Business of FSU and was a director and officer of the Student Investment Fund (SIF) a non-profit corporation established by FSU for charitable and educational purposes. He had a signatory authority over the SIF bank account. During his tenure he transferred SIF money from the SIF accounts to his own personal account. This embezzlement was discovered after an investigation. He was charged in an indictment that alleged he embezzled funds or property from FSU which it described was the recipient of federal benefits.

On appeal he challenged his conviction on the grounds that the SIF was the victimized organization under section 666 but that it received no federal benefits. He maintained that SIF and FSU are separate entities. The government’s response was that the embezzlement by Doran came within the ambit of section 666 because the SIF was closely affiliated with FSU which did receive millions of federal dollars and that Doran was a FSU professor and an agent of FSU when he committed the crime.

Published on: June 16, 2017

Tax evasion conviction for failing to report robust cash revenue upheld

by The Swartz Law Firm

The Horners were convicted of two counts of assisting in the preparation of a fraudulent corporate tax return in violation of 26 U.S.C. 6206 and filing a false individual tax return in violation of 26 U.S.C. 7206. This couple owned and operated Topcat Towing and Recovery, Inc. an S-corporation, in Lithonia, Georgia. Because Topcat required customer to pay in cases for most of its services, the Horners deposited approximately $3 million in cases into several business accounts in various banks as well as in personal accounts. They did not tell their tax preparer H&R Block about any of the cash deposits into their personal accounts. The IRS investigators concluded that theses person cash deposits were actually diverted Topcat receipts which means the defendants underreported Topcat’s income as well as their own income. On this evidence, the defendants were indicted.

One issue raised on appeal was the resulted from the testimony from IRS Agent Owns who examined their tax returns and testified regarding what she calculated as their correct tax liability. In her estimation, they owed an additional $474,147 over a four-year period. Her calculation did not account for any business expenses the Horners may have paid from their personal accounts but that they did not claim as a reduction. In her cross examination she said that such unclaimed deductions would reduce the Horners unreported income tax liability, but that it would not have a “really big impact” and would still leave “a substantial understatement.” When calculating the amount of tax due during the sentencing phase, the trial court ultimately accepted a figure of unclaimed business expense deductions which reduced the unreported income in the relevant periods by approximately one-third.

Published on: May 15, 2017

Convictions for massive federal Medicare fraud upheld

by The Swartz Law Firm

In United States v. Bergman the defendants were convicted following a jury trial of conspiracy to commit health care and wire fraud, paying bribes and kickbacks in connection with a federal health care benefit program. Bergman was sentenced to 180 months and the other defendant was sentenced to 150 months.

Bergman was a licensed physician’s assistant employed by American Therapeutic Corporation that operated a Partial Hospitalization Program (PHP). A PHP serves as a bridge between inpatient and outpatient care for patients with a psychiatric condition serious enough to possibly require hospitalization. A community mental health center such as ATC administers a PHP, which offer intensive outpatient psychiatric care including individual or group psychotherapy, counseling and other mental health services. Staff at a PHP includes psychiatrists as well as nurses, physician’s assistants, occupational therapists, physical therapists and social workers.

After ATC was founded it developed into an extensive Medicare scammed billed Medicare for approximately $200 million in claims. While ATC did have some patients who needed psychiatric help and qualified for service, most did not and ATC did not provide the individualized treatment required by Medicare. Doctors that came in generally did nothing.

In this case the defendants created fake medical records and recruited patients in exchange for kickbacks. ATC paid its patient recruiters hundreds of thousands of dollars each month in cash in order to avoid any red flags or paper trail. They even kept a log of kickbacks paid.

Published on: May 8, 2017

New sentencing ordered where officer gave false testimony at trial

by The Swartz Law Firm

In this appeal the Eleventh Circuit court of appeals reversed a federal court’s order denying the defendant’s motion to vacate his sentence pursuant to 28 U.S.C. 2255. In Phillips v U.S., the defendant had been charged with numerous drug related offenses and with being a felon in possession of ammunition. A jury convicted him on one count of conspiracy to distribute less than five grams of crack cocaine, one count of crack cocaine distribution, one count of cocaine possession, and two counts of possession of ammunition after a prior felony conviction.

Following the filing of the defendant’s 2255 and while it was pending, the government discovered that Agent Michael Ghent an officer with the West Palm Beach Police Department had lied at trial, during the investigation and that he had been under investigation by his own police department for alleged criminal activities. Other investigations showed he had engaged in a sexual relationship with his CI, used illegal substances and provided false information in various government forms and submitted a false affidavit in a state criminal prosecution.

Published on: December 29, 2016

Limitations upheld in cross examining a cooperating witness about the sentencing guidelines

by The Swartz Law Firm

The appellants in U.S. v. Rushin were correctional officers at the Macon state Prison in Georgia who were charged and convicted of conspiracy to obstruct and obstruction of justice stemming from alleged abuses of prisoners and the subsequent cover ups while they were working as members of the Correctional Emergency Response Team, (CERT) which is a specially trained group responsible for responding to and controlling disturbances as the Macon State Prison. Of the three issues raised only one was addressed in depth by this opinion and that was whether the district court improperly limited the cross examination of cooperating witness in violation of the defendant’s Sixth Amendment rights. The case arose from the beatings of several inmates at the Macon State Prison by CERT members against certain inmates in retaliation for assaulting officers. The CERT members would then take the inmate to the medical unit and lie about how the inmates’ injuries were sustained.

Multiple members of the CERT entered plea agreements and cooperated with the government by testifying at trial. The defense counsel wanted to cross-examine the cooperating witnesses about their potential sentences had they not cooperated. The government requested a limitation on the defendants cross examining witnesses about to the specific numerical sentence that could have been imposed had they not cooperated as this would speak to the potential sentences that could be received by the defendants and encourage jury nullification.

The district court granted this motion explaining that the defendants were permitted to inquire into whether the cooperating witnesses about a plea agreement, that they face a more severe penalty prior to cooperating, and that the witness received or expected to receive benefits in exchange for their testimony (charges dropped or consideration of a sentence reductions). However, the defendants’ attorneys were not permitted to inquire as to the statutory sentencing range for charges against cooperating witnesses.

Published on: November 18, 2016

No Speedy Trial violation for six day delay even though the court did not make factual findings for the continuance

by The Swartz Law Firm

In this appeal, Hughes was charged with knowingly possessing a firearm and ammunition as a twice convicted felon. Witnesses at a bar told police he was brandishing a gun and a police officer retrieved a gun from a trash can in the vicinity of the spot Hughes had stood. Fingerprints were found on the gun but were not linked to Hughes until almost two years later when the police ran them through a law enforcement fingerprint identification system matching Hughes’ prints to the gun. Following his arrest the government filed a motion to detain Hughes pending trial. Hughes’ attorney requested a six day continuance which was granted by the judge but did not make any factual findings or give any reasons for granting Hughes’s request for a continuance.

Prior to the trial Hughes moved to dismiss his indictment for a violation of the Speedy Trial Act arguing that the period of delay resulting from the court granting of a continuance was only excludable if the court stated in the record the reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

During trial the trial judge allowed the government to offer in evidence the Computer Assisted Dispatch (CAD) report as a business record. Hughes challenged its admission because the report contained hearsay and violated his right under the Confrontation clause of the Sixth Amendment since he had no opportunity to cross examine the anonymous 911 caller documented in the CAD report. Hughes also raised a Batson challenge to the government’s strike of the only African American member of the venire. Hughes challenged a jury instruction that allowed the jury to find that if it found the defendant gave a false statement to the police in order to divert suspicion from himself, the jury could infer he was guilty.

Published on: March 25, 2015

Defendant challenges evidence found on a warrantless search

by The Swartz Law Firm

In U.S. v. Hollis, the court of appeals is required to decide whether the subject of an arrest warrant may challenge the use of evidence found in plain view during a protective sweep in a third party’s residence.

In February 2011, Officers were searching for Hollis based on an outstanding Georgia arrest warrant for parole violation. In March 2011 officers surrounded an apartment alleged to be a drug house. Hollis peered out from behind the window, and the officers recognized him. The officers yelled “police” and ordered Defendant to open the door. After waiting, the officers used a battering ram to open the door and arrested Hollis. Other officers sweep of the area. They found a cosmetic bag with marijuana on a dresser, weapons under a bed, and marijuana on the kitchen counter. The officers then obtained a search warrant for the premises, in a thorough search of the apartment, they discovered about a pound of cocaine, large amounts of marijuana, crack cocaine, ecstasy, scales, and about $5,000 in cash. One of the scales had a latent fingerprint on it, latter attributed to Hollis.

A Federal grand jury indicted Hollis on two counts of possession of a controlled substance with intent to distribute, one count of possession of a fire arm in furtherance of a drug trafficking crime, and one count of felony possession of a firearm.
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Published on: July 14, 2014

No error in sentencing defendant to jail for a supervised release violation

by The Swartz Law Firm

In U.S. v. Vandergrift, the defendant was placed on three years of supervised release after serving a 97-month sentence for the federal crime of possession and distribution of child pornography. Before the expiration of a three year supervised release, Vandergrift’s probation officer filed a petition seeking revocation of his supervised release charging that he violated the following conditions of his supervised release: (1) failing to obtain lawful employment; (2) failing to obey instructions to search for and obtain employment; (3) knowingly giving false information to a probation officer when questioned about the whereabouts of another federal supervisee; (4) possessing or having access to a pornographic DVD and a Maxim magazine, both of which contained sexually stimulating material; and (5) violating 18 U.S.C.§ 1001, when he knowingly lied to a probation officer about his roommate’s absence. The district court revoked Vandergrift’s release and imposed an above-guidelines sentence of 24 month imprisonment to be followed by one year of supervised release.

In revoking supervised release, the court considered the safety of the public, the example set to others in deterring similar conduct, punishment for the crime that was committed, and the court also considered what was best for Vandergrift as a factor.

Having considered all of these, the sentence imposed was 24 months in prison, the maximum under statute hoping that during the period of imprisonment “something can be found to put him on a better course.”

Published on: July 1, 2014

Resentencing after remand from the U.S. Supreme Court was correct

by The Swartz Law Firm

In U. S. v Fowler the defendant was convicted of under the federal witness tampering statute for murdering a police officer with the intent of preventing him from communicating information about a federal criminal offense to a federal law enforcement officer. He was also charged in count two with using a firearm during a federal crime of violence, specifically a conspiracy to commit a robbery in the conspiracy to commit bank robbery and in doing so by murdering officer police officer following. Following a trial Fowler was found guilty on both counts is presentence investigation report calculated is offense level for count one the witness tampering at 46 and with his criminal history category of six he faced a recommended sentencing guideline of life in prison. For the gun possession the presentence investigation report recommended the 10 year mandatory minimum sentence. He was sentenced to life imprisonment for count one in eight consecutive term of 10 years for count two.

Fowler appealed his conviction for witness tampering arguing that the evidence was insufficient to show the officer would likely have communicated with a federal official. The conviction was affirmed by the 11th circuit, but the U.S. Supreme Court reversed, holding that the evidence was insufficient for the conviction under the witness tampering statute. On remand, the district court vacated the sentence and decided it would re-sentence the defendant and count two. The district would announced that it would not have given someone 810 year sentence on a murder with a firearm charge standing alone. After the presentence report calculated the defendant’s guideline range it found the guideline range to be life imprisonment. The court imposed a life sentence.

On appeal, the defendant Fowler argued the district court had no authority to re-sentence him on the remaining count of possession of a firearm during the commission of a federal crime, but instead was required to let the 10 year sentence stand. And he argued that the original sentence was not a “sentencing package” and the firearm count was not interdependent with the witness tampering count. He argued that the two counts were not put together under the sentencing guidelines and that the sentencing court should not impose any sentence greater than the ten-year term originally imposed.