Articles Posted in Federal Trial Issues

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Isaacson appealed his conviction following a jury trial for conspiracy to commit wire fraud and mail fraud and securities fraud. The conspiracy defrauded investors through a hedge fund that placed money in shell companies with no assets or business operations. The hedge fund drove up the prices of the shell companies causing them to appear more valuable than they really were. From his Florida office, the defendant assisted in creating fraudulent valuation reports in an effort to placate auditors.

In his appeal, the defendant challenged the district court’s failure to grant his speedy trial motion. The court of appeals upheld the district court’s decision because it found the defendant filed his motion after the trial began. The defendant’s speedy trial motion was filed on April 19, 2010. Prior to that the trial court began ruling on jury challenges based on the written responses to juror questionnaires sent to perspective jurors. The court of appeals concluded that the voir dire had begun when the trial court began making its rulings.

The court also upheld the district court’s denial of the defendant’s statute of limitations challenge based on his claim that the government failed to prove an overt acts occurred within the period of the statute of limitations. The one overt act that took place within the statute of limitation period was done by the codefendant. The defendant argued that the overt act does not mention the defendant and cannot be used to bootstrap the defendant’s conduct within the statute of limitations. Rejecting this argument, the court of appeals found an individual conspirator need not participate in the overt act done in furtherance of the conspiracy for the overt act to fall within the statute of limitations.

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The defendants in U.S. v. Chahla were three brothers from Syria who were convicted following a jury trial of various federal crimes in connection with their fraudulent marriages and their subsequent attempt to procure citizenship. The three brothers, all of whom resided in Florida, paid three women for a marriage. After their respective marriages, the brothers filed an I-130 petition to sponsor the defendants in their request for lawful permanent resident status (“green card”.) At the same time the brothers filed their own form I-485 application to adjust their status based on marriage to a U.S. citizen. After they were interviewed by immigration officials, the defendants received lawful permanent resident status. Two of brothers up applied for citizenship while the third just applied for his lawful permanent residency. An investigation into their marriage led to these charges.

The defense were indicted and convicted of conspiracy to commit marriage fraud and six counts of unlawful procurement of naturalization pursuant to 18 U.S.C. § 1425. For two of the defendants, the unlawful procurement of naturalization charges was based on false statements made in the application to become a lawful permanent resident and false statements made in the naturalization application. For a third brother the unlawful procurement charges were only based on his original lawful permanent resident application. Two defendants challenged their conviction under 18 USC § 1425 for unlawful procurement of naturalization and citizenship because the counts relied on false statements made in support of the lawful permanent resident application. The defense argued that the conviction should be reversed because § 1425 criminalizes fraudulent procurement of naturalization, but not false statements made in the application to adjust to permanent residents. The court rejected this argument. It found that becoming a lawful permanent resident was a statutory a prerequisite to becoming a naturalized citizen. The defendants’ attempt to become a naturalized citizen was contrary to law to the extent it was based on fraudulently obtained status as a lawful permanent resident. The defendants filed naturalization applications and a reasonable jury could conclude that the defense intended to seek naturalization when they file their fraudulent lawful permanent resident applications.

A third brother was convicted of making a false statement in the naturalization application. The naturalization form asked if the defendant had ever given false or misleading information to any U.S. government official while applying for any immigration benefits. There was overwhelming evidence that the defendant’s marriage was fraudulent, and the answers to these questions provided evidence for the court to conclude sufficient evidence existed to convict this count.

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Defendants Esquenazi and Rodriguez were convicted in Miami federal court of conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and conspiracy to commit wire fraud and money laundering. The FCPA makes it a crime to bribe the foreign official for the purpose of influencing the official. A foreign official is defined as an officer or employee of a foreign government or of any department, agency, or instrumentality thereof. The chief issue in the appeal in U.S. v. Esquenazi, was the definition of an instrumentality of a foreign government.

The defendants ran a telecommunications company that purchased phone time from foreign vendors and resold the minutes to customers in the United States. One of their main vendors was a telecommunications company in Haiti. The defendants worked out a deal with the phone company that reduced the defendants’ phone bill debt and in exchange the defendants agreed to funnel 50% of the savings to the principle under the guise of a consulting agreement. The government presented evidence that Haiti owned the phone company and that the phone company was an instrumentality of the government of Haiti. The issue to the court of appeals said to resolve was whether the district court’s definition of the instrumentality as it was used in the jury instructions was correct. Furthermore it had to define instrumentality in resolving the sufficiency of the evidence issue and the defendants’ challenge to the constitutionality of the statute.

The court rejected the defendants’ argument that the definition had to be limited to entities that perform traditional core government functions. The court defined instrumentality as an entity controlled by a foreign country that performs a function that the controlling government treats as its own. To decide whether the government controls entity courts and juries should look to the following: the foreign government’s formal designation of that entity; whether the gov’t has a majority interest in the entity; the government’s ability to hire and fire the entities principles; the extent to which the entity’s profits go directly to the government; and the to the extent to which the government funds the entity if it fails to break even. The court found that the lower courts jury instruction included most of the relevant elements for determining an instrumentality of a foreign governments incorrectly stated the definition of an instrumentality.

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The defendant in U.S. v Harrell received a 25 year sentence after pleading guilty to conspiracy and the substantive robbery a Miami Walgreens and a McDonalds in violation of the Hobbs Act and two counts of possession of a firearm in relation to the robberies. He argued on appeal that the district judge participated in the plea negotiations in violation of Federal Rule of Criminal Procedure 11(c).

Here’s what happened in this Miami federal criminal case. On the day of trial, prior to bringing the jury venire into the courtroom, the district court stated that “it might be worth spending a few minutes in terms of the overall gravity of the situation to discuss whether or not there is some possibility of a plea or pleas of the two defendants.” The district court then engaged defense counsel for the codefendants, and the prosecutors “in a lengthy discussion regarding the likelihood of a plea from either or both of the defendants.” The discussion then turned to the possibility of a plea by the Defendant Harrell and his attorney mentioned he had been interested in the same plea certain codefendants received but that the government would not treat Mr. Harrell the same because he was facing state court charges involving murder and attempted murder pending. At one point the district court commented that Harrell was facing a “horrendous mandatory sentence that becomes somewhat irrevocable after a trial if there is a conviction.” After a recess, the government came back with an offer to an agreed upon 25 year sentence that Harrell rejected. The trial began with jury selection but after the lunch recess Harrell’s attorney announced that his client would accept the 25 year sentence. The codefendant, Dantzle, proceeded to trial and was convicted.

Because the issue was raised on appeal for the first time, the plain error standard applied. It required the defendant to show the error was plain, that the error affected his substantial rights, and the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. The 11th Circuit found several violations of Rule 11(c)(1). First, the district court “instigated – without any mention of possible plea agreements from the parties” the plea-related discussions with counsel for both defendants and the government. Second, the district court improperly cautioned the defendants about the severity of his potential 32 year sentence should be convicted after trial and generally warned the defendant about the extremely high sentences they were facing should they be convicted and that the court would not have the same latitude to fashion a fair sentence if the defendants were found guilty by the jury. Third, the district court took the lead in orchestrating the plea agreement. While it found the district court had good intentions, the Rule 11 violation was plain error and reversible because comments by the district court, the defendant would reasonably have felt pressured to accept a plea rather than go to trial.

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In Osley v. United States, the Eleventh Circuit rejected the defendant’s section 2255 claim that his counsel failed to advise him he faced a mandatory sentence, because he had turned down a plea offer prior to trial that would have given him only 70 months. Osley was convicted of multiple counts commercial sex trafficking of a minor by means of force fraud and coercion, including a violation of 18 U.S.C. § 1591. Following the Miami federal criminal trial Osley was sentenced to 365 months and his sentence and conviction were affirmed. He filed a motion to vacate sentence pursuant to 28 U.S.C. 2255 claiming (1) his counsel was ineffective for failing to inform him of the mandatory minimum 15 year sentence for violating § 1591, (2) appellate counsel was ineffective for failing to challenge an obvious double counting violation of his sentencing guidelines, and (3) counsel failed to advise him he faced life term of supervised release.

Prior to trial his counsel discussed the possibility of a plea agreement. Both counsel and the prosecutor agreed that the guidelines calculation would be 97 to 121 months. At a status hearing held by the district court the prosecutor also informed the court there was no mandatory sentence under the sentencing guidelines and if found guilty he would be facing 97 to 121 months. The defendant had previously rejected a plea offer of 80 months. Osley chose a trial where the government’s star witness was a 17 year old victim was a run-away from home who said Osley promised to buy her ticket to Miami and discovered that she would have to become a prostitute for him, and described how he threatened her with a gun because she did not bring in enough money. After the trial and an during the Presentence Investigation interview, the probation officer informed the defendant and his counsel that the statute had been amended by Congress prior to the date Osley violated the statute, making the penalty a 15 year mandatory minimum sentence. The PSI also recommended a four level enhancement for uncharged conduct, giving him a range of 210 to 260 months. The judge also imposed a variance up by three levels.

While the Eleventh Circuit had serious doubts about whether counsel’s performance satisfied the standard of reasonableness required by the Sixth Amendment, it found that the defendant could not meet the prejudice pronged of Strickland. It rejected the Osley’s claim that he would have taken the 15 year mandatory sentence had he known he was facing 262 months under the guidelines, because Osley had rejected the government’s offer of 70 to 87 months. The 15 year deal that the defendant claims he would have taken was substantially more time than the deal he rejected. The court did not accept his claim that he would have taken 15 year deal even if he had known he would be facing a guideline range of up to 262 months. Furthermore, the defendant’s denial of guilt was a factor in determining whether he would have accepted the government’s plea offer.

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After the defendant in U.S. v Ramirez-Florez pleaded guilty to reentry after deportation, he received a 16-level enhancement in his sentencing guidelines range because of a prior conviction for burglary of a dwelling in violation of the South Carolina conviction for burglary of a dwelling conviction that the district court determined was a crime of violence. The statute encompasses more than the generic definition of a burglary which is the unlawful entry into a residence. It also encompasses the unlawful entry into non-generic structures such as outhouses, sheds, or other buildings that are within two hundred yards of an appurtenant to a residence. Following the sentencing and after the briefs were filed on appeal, the Supreme Court decided Descamps v. U. S. and the defendant raised the argument for the first time at oral argument that the South Caroline statute is not divisible under Descamps and the district court erred in applying the modified categorical approach. In a divisible statute, where the statute sets out one or more elements of the offense in the alternative that in effect creates several different crimes, the courts must apply the modified categorical approach. If at least one of the alternative elements matches the generic definition, the court may consult a limited class of documents, such as the indictment and jury instructions to determine which element formed the basis of the defendant’s prior conviction.

Viewed the challenge to the defendant’s argument that the statute was divisible under the plain error because the argument was not raised before the district court or in the briefs on appeal. The defendant could not show that that the error was plain or obvious that the South Carolina statute is not divisible and found the issue is subject to interpretation.

In his second argument raised in the brief, he argued that his prior South Carolina conviction did not qualify as a crime of violence because the Shepard documents do not prove that he burglarized a generic dwelling. Because Ramirez-Flores could not show that the statute was indivisible, the court decided it was appropriate to consider Shepard documents. As the presentence investigation (psi) report presented evidence to the district court that the defendant’s prior burglary conviction involved the burglary of a residence. A court applying the modified categorical approach may consider undisputed facts in the psi which in this case said that the defendant forcibly entered the victim’s residence with a codefendant and removed property from the residence. Ramirez-Flores claims he objected at the sentencing hearing to these facts in the psi and therefore cannot rely on its description of his conduct. The court found that his objection was only a general objection to the factual and legal statements in the particular paragraph relating to the narrative of this prior conviction. The court held that vague assertions of inaccuracies are not sufficient to raise a factual dispute. “We require objections to the psi to be made with specificity and clarity in order to alert the government and the district court to the mistake of which the defendant complains.” The only factual objection made by the defendant to the psi was that the prior crime was not a crime violence and this did not fairly apprise the government or the court of any objections. Therefor the district court properly relied on undisputed facts.

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The defendant in U.S. v. Harris was convicted of three counts of a Hobbs act robbery and four counts relating to possession and use of firearms during those robberies. Under federal sentencing laws, his prior convictions for violent crimes resulted in a life sentence of imprisonment and a consecutive sentence of 57 years. In this appeal Harris challenges the imposition of a mandatory life sentence without a finding by a jury as to the fact of his prior convictions. He argued that this is inconsistent with Alleyne v. U. S. He also challenged the constitutionality of 18 USC § 3559(c) which provides for a mandatory life sentence for persons convicted of certain felonies. He argued that the statute impermissibly removes the sentencing discretion from the courts and delegates it to the executive branch.

Following a 3-day trial the defendant was convicted of three Hobbs act robberies and for using a firearm during those robberies. Because he had prior felony convictions for robbery with a firearm and a battery and law enforcement officer, the defendant qualified for the career offender enhancement under sentencing guidelines § 4B1.1. Also, under 18 USC 3559(c), a defendant convicted of a serious violent felony and previously been convicted of a combination of two or more serious violent felonies or serious drug offenses is subject to a mandatory sentence of life imprisonment. Because the defendant met those criteria, the district court imposed of the statute early mandated life sentence and also impose a consecutive 57 year sentence.

On appeal the defendant argued that his mandatory life sentence is inconsistent with the U.S. constitution as interpreted by the Supreme Court in Alleyne. He argued that the Supreme Court stated in Alleyne that any fact that increases the penalty for that crime is an element that must be submitted to the jury and found beyond a reasonable doubt. The court rejected this argument based on the Apprendi decision, which held that “other than the fact of a prior conviction, any fact that increases the penalty for crime beyond the prescribed statutory maximum must be submitted to a jury in proved beyond a reasonable doubt.” The Supreme Court in Alleyne did not address the specific question at issue here: whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That issue is still governed by Almendarez-Torres v. U. S. which states that the fact of a prior conviction is not an element that must be found by a jury. Applying the Apprendi and Amendarez-Torres decisions, the 11th Circuit held that the district court did not commit error by imposing a mandatory life sentence without any jury findings about the existence of the defendant’s prior convictions.

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In U.S. v. Ransfer, the defendants were convicted of a Hobbs Act violations, and the use and carrying of firearms during the commission of a violent crime. The first issue the defendants raised in challenging these federal criminal convictions was the admission of evidence resulting from the installation and use of a GPS tracking device without a warrant. It used to determine the location of a Ford expedition that was used in the commission of several robberies. The defendants relied on U.S. vs. Jones, a 2012 Supreme Court case stating that installing a GPS tracking devise on a vehicle and tracking the vehicle’s movement was a search under the fourth amendment and required a warrant. The police installed the tracking device on May 27, 2011, before the Jones decision was issued in 2012. Prior to the Jones decision the prevailing law in the 11th circuit said that law enforcement officers did not violate the Fourth amendment by placing a tracking device on vehicle parked in a public place and to track the vehicles moment on public roads if the officers that reasonable suspicion to initiate surveillance of the vehicle. The Eleventh Circuit found that the officers were in good faith and it was reasonable for the officers to rely on long standing precedent in attaching the GPS without a warrant by installing electronic tracking device of vehicle without a warrant. Because there was clear precedent in the 11th circuit stating that the police did not violate the fourth amendment, the search was not subject to the exclusionary rule.

In their second issue, the defendants challenged the lead an officer’s testimony on grounds that it was hearsay. The officer testified about the identities and their suspicious activities from information learned from out of court sources. The court concluded that his testimony was based on his investigation review of a complex investigation in which he supervised a months-long endeavor to identify and locate the perpetrators of this series of armed robberies. His statements were not offered to rehabilitate any witness. Instead he was merely providing a summary of the investigation and his background information shed light on why the officer conducted the investigation in the manner that he get even if it was an error it was not reversible because the evidence about which he testified was otherwise admissible on the record.

The defendants challenge the convictions on the basis of sufficiency of the evidence. All of the convictions were affirmed except for the robbery of a specific CVS for one defendants, which was reversed. The court found the evidence was insufficient to prove one of the defendants was involved in this particular robbery because the evidence supporting his conviction in the other robberies was absent here. There was no evidence he was ever in the CVS or that he did anything prior to or during the robbery to further the crime.

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In U.S. v. Edwin Aguilar-Ibarra the defendant was convicted of a conspiracy to commit a Hobbs Act robbery, which is a federal crime under 18 U.S.C. 1951. The facts of this conviction arose from a robbery of a Florida warehouse by four masked man brandishing pistols. The intruders bound gagged and force the warehouse employee into a warehouse into a back office where they assaulted him the assailants took off with one million dollars’ worth of cellular phones. The defendant’s presentence investigation report recommended a two-level of his sentencing guideline section 2B3.1(b)(3)(A) because the robbery victim sustained bodily injury. The presentence investigation report recommended the enhancement because the warehouse employee went to the hospital suffering minor injuries as a result of the assault.

The defendant did not file the objections within the 14 days required by Federal Rule of Criminal Procedure 32 (f)(1). The defense attorney objected to the enhancement at sentencing arguing there was no evidence the employee sustain bodily injuries and claimed the enhancement had not been applied that the co-conspirators sentencing. At sentencing the probation officer confirmed that the co-conspirators did receive the enhancement at their respective sentencing hearings.

On appeal the defendant argued that the district court erred in rejecting his objection to the bodily injury enhancement as untimely. The defendant claimed that the time limit was an applicable here because he and the government agreed the enhancement should not apply. In any event, the court exercised its discretion to waive the timeliness requirement by reconsidering and ruling on the merits of the objection.

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The Defendants in U.S. v Sterling appealed their federal criminal convictions for 1) armed bank robbery, 2) use of a firearm during and in relation to a crime violence, and 3) possession of a firearm by a convicted felon. On appeal the defendant’s challenged the admission of their prior convictions admitted pursuant to Rule 404(b). The facts of the robbery reveal that a masked man vaulted over the teller counter at a bank in Smyrna, Georgia and robbed the bank using a silver handgun. The man exited the band and disappeared from the view of witnesses. Another man was seen removing a piece of paper covering the license tag of a vehicle while leaning over the trunk. Later the police found a car matching the description of the getaway car driven by one of the defendants but the suspected bank robber was found. After the vehicle was towed and impounded by a towing company, the tow truck driver saw a man matching the bank robber’s description lying on the flatbed next to the open backseat door of the car. In the trunk, police found a bag with clothing matching the description of the bank robber’s clothing as well as a silver firearm.

The 404b evidence stemmed from a bank robbery in 1995 where both defendants were convicted of the robbery. The Court applies a 3-part test to determine the admissibility of evidence or prior crimes under Rule 404(b):

1. The evidence must be relevant to an issue other than the defendant’s character.

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