Articles Posted in Federal Trial Issues

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In the first U.S. v. Castro decision the Eleventh Circuit initially held that the defendant in this South Florida criminal case could withdraw his federal criminal plea because the district court violated Rule 11(c)(1) by advising Castro about the penal consequences of rejecting his federal criminal plea agreement. In that decision, the court held that Rule 11 creates a bright-line rule and the district court violated the rule against judicial participation in plea discussions by telling Castro he faced a sentence even more severe if he rejected the plea agreement. The Defendant was allowed to automatically withdraw his federal guilty plea and the case was assigned to a different judge. The court of appeals vacated that decision and granted a rehearing in this second U.S. v. Castro decision, after the Supreme Court’s decision in U.S. v. Davila, which abrogated the rule that a plea will be automatically vacated for judicial participation in the plea discussions. Under Davila, the court must consider the full record and determine whether it was reasonably probable that, but for the single comment of the district court, Castro would have exercised his right to go to trial.

Reviewing this record showed the defendant was indicted on five counts of possessing marijuana and cocaine with intent to distribute and several firearms offenses including carrying a firearm during and in relation to a drug trafficking offense. Castro had hired an attorney and entered a not guilty plea at his arraignment. He later negotiated a plea agreement with the government which was reduced to writing and signed by Castro just minutes before his change of plea hearing. The plea agreement called for Castro to plead guilty to seven of his charges including 3 drug counts and 4 firearm counts. At the change of plea hearing Castro told the district court that he did not want to go forward with the change of plea and was not happy with his defense lawyer and wanted the court to appoint a new attorney to represent him. At the request of the defense counsel, the district court advised Castro of the consequences of reneging on his plea agreement with the government. The district court asked Castro if he understood that the government made certain concessions in the plea offer and if he did not plead the government could charge him with other things that will make the sentence more severe. Afterwards, Castro announced that he would take the plea and he withdrew his request for the appointment of a public defender. After the plea but prior to the sentencing Castro hired a new attorney. He was later sentenced to 156 months.

Davila held that when a defendant does not complain to the district court about its participation in plea discussions, a reviewing court should consider whether it was reasonably probable that but for the exhortations of the district court, the defendant would have exercised his right to go to trial. To make that determination, the court of appeals must evaluate the comments of the district court not in isolation but in light of the full record. The 11th Circuit found that Castro’s decision to plead guilty was not a result of the district court’s comments so much as it was from his desire to shorten the duration of his inevitable sentence for crimes he committed. The court of appeals was not convinced that Castro would have rejected the plea agreement had the district court not advised him of the consequences of reneging on his plea agreement. By pleading guilty, he avoided a second charge of carrying a firearm during a drug trafficking offense for which he faced a mandatory 25 year sentence to run consecutively to his other sentences. For this reason his conviction was affirmed. The issue raised here is a common one seen in federal criminal courts where a defendant tries to withdraw the guilty plea after receiving an unexpected severe sentence.

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In U.S. v. Williams, the defendant was convicted in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C.§ 922(g), possession of crack cocaine, and possession of a firearm in furtherance of a drug trafficking crime. On appeal he challenged the introduction of evidence seized as a result of an unlawful search. Williams was arrested when two Miami Police Officers approached a rooming house in the Coconut Grove section of Miami to investigate complaints that narcotics were being sold from the location. After the officers knocked on the door, Williams answered and the officer questioned him and eventually asked Williams if he had anything illegal on him. According to the officer, Williams said “go ahead, I ain’t got nothing.” When the officer reached for William’s pocket, Williams pushed him in the chest area causing the officer to stumble backwards. Following that encounter, Williams then ran inside the house to the back of the house. The two officers gave chase and caught him at the end of the house. During the struggle to place handcuffs on Williams, one of the officers saw a semiautomatic gun fall out of the William’s waistband and land nearby. The gun was recovered and after searching Williams’ pocket they found 21 small bags of crack cocaine in a cigarette box and $236 in cash.

Williams filed a motion to suppress the evidence seized on grounds the officers had no probable cause or reasonable suspicion he was dealing in drugs. Williams argued the evidence was seized as a result of an illegal, nonconsensual search. Even if the initial encounter was valid, the officer’s attempt to search was invalid because Williams never consented to the search. Finally he argued that even if he consented at first, he withdrew his consent. During the suppression hearing Williams disputed the officer’s version of the incident. He claimed he denied having any drugs when asked by the officer. When the officer asked if he would mind being searched, Williams denied giving consent and said that when the officer reached for his pockets, he only pushed the officers hands away because he already refused the consent to a search.

The court of appeals upheld the denial of the suppression motion. First the district court did not err in making a credibility finding against the defendant. There was no Fourth Amendment violation by the officer’s entry upon the private property to knock on the door. Their purpose was to investigate the present of criminal activity upon receiving complaints. The court of appeals credited the officer’s account that they obtained consent to search Williams. The officer said that Williams struck him, giving the officer probable cause to arrest Williams for resisting arrest with violence or battery on a law enforcement officer. The court noted that an officer is allowed to enter a dwelling without a warrant if he is in “hot pursuit” of a suspect. The officers could therefore pursue Williams into the house.

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In U.S. v. Madden the defendant was indicted and charged with a drug conspiracy. One of the counts charged the defendant with knowingly using and carrying a firearm during and in relation to a crime of violence and with knowingly possessing a firearm in furtherance of a drug trafficking crime. In charging the jury, the district court at first correctly described the charge by using language that mirrored the indictment: “that the defendant knowingly used and carried a firearm during and in relation to a crime of violence… and did knowingly possess a firearm in furtherance of a drug trafficking offense.” A few minutes later the district court used different language in describing this count: The indictment alleges that the defendant knowingly carried a firearm during and in relation to a drug trafficking offense or possessed a firearm in furtherance of a drug trafficking offense…”

Basically, the district court mistakenly replaced the “crime of violence” language with “drug trafficking offense.”

The defendant argued that the jury instruction constructively amended the indictment and that the constructive amendment was reversible error. A constructive amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment. The court of appeals decided the district court’s instruction did constructively amend because it allowed a conviction for “carrying a firearm during and in relation to a drug trafficking offense” when the indictment only charged the defendant with possessing a firearm “in furtherance of … a drug trafficking crime” and using and carrying a firearm “during and in relation to a crime of violence.” The government only had to prove the defendant violate the law in one of those ways. Adding “during and in relation to” broadened the possible bases for a conviction beyond what was specified in the superseding indictment.

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In U.S. v. Yates the defendant and his crew were on a commercial fishing trip into the Gulf of Mexico when he was stopped by a federally deputized Florida Fish and Wildlife officer on patrol for fishery violations and compliance. After boarding the defendant’s boat, he noticed red grouper that appeared to be less than the 20-inch minimum size limit. He measured them with mouths closed and determined there were 72 grouper that clearly measured less than 20 inches. He separated the undersized one into crates, issued a citation, and instructed the defendant not to disturb the crates. He told him that the National Marine Fisheries Service would seize them upon the vessel’s return to port. Instead of following the instructions, the captain had his crew throw the undersized fish overboard and replaced them with other larger grouper. When the vessel returned to port in Florida and the officer measured the fish, he suspected they were not the same fish he previously measured. The switch was discovered after a crewmember was interviewed. The captain was charged and convicted of knowingly disposing of undersized fish in order to prevent the government from taking custody and control in violation of 18 U.S.C. §2232(a), and was convicted of destroying a “tangible object with the intent to impede obstruct or influence the government’s investigation into harvesting undersized grouper” in violation of 18 U.S.C. §1519.

Insufficient evidence argument rejected.

The defendant argued on appeal there was insufficient evidence that the fish thrown overboard were undersized because the officer failed to measure the grouper with mouths open and instead measured them with mouths closed. He argued there is speculation as to whether the fish would have been undersized if measured with mouths opened. The court rejected this argument finding that there was conflicting testimony as to whether this would have made any difference, and the jury was free to weigh and decide the issue. Furthermore, the defendant’s directing the crew to throw fish overboard together with his admission that he had at least a few undersized fish on his boat when the officer first measured them, was evidence he believed the fish were undersized.

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From the 11th judicial circuit in Miami, Florida, in U.S. v. Vernon, the defendants were convicted of health care fraud following a trial. The charges involved dispensing factor medication, a blood clotting medication used to treat hemophilia. Defendant Vernon ran a specialty pharmacy that dispensed prescriptions for factor medication, an expensive medication that earned big profits as a result of the high Medicare reimbursement rate. In order to gain more factor medication business the business would pay individuals and businesses large percentages of its profit for referring their hemophiliac clients to the defendant’s company for filling prescriptions. Other defendants were paid kickbacks of up to 45 % of the profit earned from filling the prescriptions for clients. Another defendant, Waters, had several family members who were hemophiliacs and he moved these patients from the competitor to the Vernon’s pharmacy after he was hired by the company as a full time employee and he signed a contract as a hemophilia sales associate earning $400,000 in 2007, $700,000 in 2008, $325,000 in 2009, together with many fringe benefits. In exchange for these payments Waters ensured that his hemophiliac clients filled their medication through defendants’ company. He did not recruit new patients as his contract required. The jury found Vernon guilty of violating the anti-kickback statute, which criminalizes the offering or paying of kickbacks. Following the verdict the court set aside the guilty verdict and granting his Rule 29 motion. The government appealed. Two defendants appealed the denial of rule 29 motions.

The 11th Circuit reversed the district court’s order granting Vernon’s Rule 29 motion because it found sufficient evidence Vernon violated the Anti-Kickback statute,42 U.S.C. 1320a-7b(b)(2)(A) by knowingly and willfully paying money to Brill, who had “clients” that were also hemophilia patients. The evidence showed that the purported employee relationship between Waters and the Vernon’s company was sham. Waters worked at home rarely visiting the office, received no oversight or direction from the pharmacy, spent most of this time in casinos or performing other non-work related tasks. Another defendant, Brill, referred to Vernon’s pharmacy to fill their prescriptions in exchange for payments. The court rejected Vernon’s argument that the language “to induce” Brill “to refer an individual” to Vernon’s pharmacy was a term of art that means a request by a physician for an item or service. It found it included referring by any individual and could apply to Brill.

Vernon also argued the jury instruction misstated the anti-kickback law because it allowed the jury to convict him without finding the required nexus between the improper referrals and Medicare coverage that is without finding that Jeff Vernon and the pharmacy paid kickbacks for the referral of patients whose factor medication prescriptions were covered by Medicaid. He argued that the jury instructions allowed convictions so long as the referred patients received Medicaid benefits for some health care services, even services unrelated to the illegal referrals. The 11th Circuit found no error because any doubt left by the instruction was cured by the indictment itself which set forth the required nexus between federal health care benefits and the services provided to patients.

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In Castillo v. State of Florida, the defendant filed a collateral challenge to her Florida state court conviction of attempted robbery that took place on Miami Beach. Castillo claimed she received ineffective assistance of counsel and was deprived of her Sixth Amendment right to counsel. In this three-day trial, one of the jurors was absent from the second day of trial, but the juror was not replaced by an alternate. Instead the juror returned the third day to participate in the deliberations and voted with the other jurors to convict Castillo. Castillo’s counsel did not object. While the parties agreed that counsel’s failure to notice and object to the juror’s deliberating after being absent during one trial day was deficient performance, the issue was whether the deficient performance by counsel was prejudicial under of Strickland v. Washington.

The 11th Circuit found no actual prejudice resulted from counsel’s failure to object because all of the testimony presented during the second day, the day the juror missed, was evidence of guilt. Nothing the juror missed would have helped the defendant because the testimony was evidence of guilt. All the evidence presented on all three days was incriminating. Finding that there was no reasonable probability of an acquittal if all 6 jurors heard all testimony presented on the second day, rather than just 5 of them. The Defendant argued however that prejudice should be presumed pursuant to the standard laid out in the Supreme Court’s decision in U. S. v. Cronic. The 11th Circuit found that none of the three Cronic factors applied. First, the court found that the defendant’s counsel was present throughout every moment of the trial and there is no suggestion he did not assist the defendant at any critical stage. Second, the court found the record showed defendant’s counsel did subject the prosecution’s case to a meaningful adversarial testing throughout the trial.

The court rejected the trial court’s finding that the defendant’s attorney’s failure to object to a constitutional or otherwise important error can warrant a presumption of prejudice and therefore result in a reversal regardless of whether there is real prejudice. The Eleventh Circuit rejected this “big error” exception to the actual prejudice requirement. Here, the attorney was present throughout the trial and contested the prosecution’s case. Any errors the attorney committed must be judged under the Strickland standard, which requires a showing of actual prejudice. The district court incorrectly relied on language in the 11th Circuit’s decision in Harding, where the defendant was effectively left with no representation during trial because of a disagreement with his court-appointed lawyer. The district court seized on language in Harding that “silence of counsel may constitute denial of counsel at a critical stage of trial and thus constitute error even without a showing of prejudice.” The district court understood this language to support the defendant’s position in that an attorney’s failure to object to a single error, if the error is big enough, can constitute an extraordinary circumstance justifying a presumption under Cronic. While the language was applicable to the facts in Harding, where the defense counsel stood by silently while the trail judge directed a verdict against his client in a criminal case. Here the failure to object to a juror deliberating, who missed hearing some of the prosecution’s evidence, pales in comparison to the facts of Harding.

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In U.S. v. Scrushy, the Defendant and his codefendant Siegelman, the former Governor of Alabama, were found guilty following a trial of federal criminal crime of bribery and for the honest services mail fraud statute, 18 U.S.C. 1341 and 1346. The bribery conviction arose from allegations that Scrushy gave $500,000 to his codefendant Siegelman, in exchange for his appointment to a statewide board in Alabama and that Scrushy used his seat on the board to further the interests of the Health South Corporation, a hospital corporation in Alabama of which Scrushy was Chief Executive officer. These white collar criminal convictions had previously been affirmed by the 11th Circuit but the Supreme Court granted a writ of certiorari following its decision in Skilling v. United States, where the Supreme Court held that honest services mail fraud statutes were only intended to reach schemes involving bribery or kickbacks. On remand honest services mail fraud counts were reversed in light of Skilling. Following Scrushy’s resentencing, he took this appeal raising the denial of motions for new trial based trial, pursuant to Rule 33(b)(1) based on newly discovered evidence and the denial of a motion to recuse the trial court judge.

The Defendant had moved to recuse the trial judge after it was learned that emails from jurors were sent to the Marshals who brought them to the attention of the trial judge. The judge asked the Marshals to investigate, which then turned to the U.S. Attorney who enlisted the U.S. Postal Inspection Service. The Postal service concluded the emails were not authentic. The Defendant had not been advised about any of this. The Defendant argued that the trial judge should have stepped down because he met exparte with the Marshals about a factual issue and that he heard the Postal Inspectors express their belief the emails were not authentic. By acquiring personal knowledge of a disputed evidentiary fact, he could be a material witness on that issue. The 11th Circuit rejected these arguments, mainly because the judge actually ruled in the Defendant’s favor by finding the emails were in fact authentic and there could be no doubt that the judge was impartial.

Next, the Defendant claimed he was subjected to selective prosecution in violation of the Fifth Amendment right to equal protection. Specifically he claimed that his prosecution was selective because other similarly situated people made campaign donations and received gubernatorial appointments but were not prosecuted. The 11th Circuit denied this claim because: (1) a claim of selective prosecution is not the proper subject of a Rule 33(b)(1) motion for new trial and (2) the motion should have been raised as a pretrial motion.

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In U.S. v. Rojas, the defendant and his wife were indicted and convicted of marriage fraud, in violations of 8 U.S.C. § 1325(c). On this appeal, Rojas challenged his conviction arguing that the indictment fell outside the five-year statute of limitations. Specifically, he argued that statute of limitations for his offense began to run on the date of his marriage. The court of appeals agreed and concluded that the date that the crime of marriage fraud is complete is the date of the marriage. For this reason the indictment was time barred.

After the defendants were married, Rojas’ wife sent U. S. Immigration and Customs Enforcement (I.C.E.) an application to apply for Permanent Residence Status. The wife was an Argentinian citizen who had overstayed her visa. Rojas was a U.S. citizen. The application included a copy of their marriage certificate showing they were married April 23, 2007. During the interview conducted by immigration, certain discrepancies arose in their documentation and their answers. When the investigators confronted them with suspicions of marriage fraud they both admitted that the marriage was entered into to help the wife obtain her U.S. residency. The government indicted the defendants on April 27, 2012, and a motion to dismiss the indictment was filed in the district court.

Under § 1325(c), marriage fraud is committed by any individual that enters a marriage for the purpose of evading a provision of the immigration laws. The statute of limitations provision states that no person shall be prosecuted for any offense unless the indictment is returned within five years after the offense is committed. The statute of limitations begins to run when the crime is complete. The 11th Circuit’s interpretation of the language of the marriage fraud statute elements showed that the elements require that 1) the defendant enter into the marriage and 2) for the purpose of evading any provision of the immigration law. The court found the defendants did in fact enter into the marriage for that purpose. While the application for immigration benefits may serve as the circumstantial evidence of the unlawful purpose of the marriage, the plain language of the marriage fraud statute does not require a defendant to take the additional step for filing for immigration benefits in order for the crime to be complete. The 11th Circuit rejected the government’s arguments that the crime was not complete and the statute of limitations did not begin to run until the defendants were interviewed by immigration officials on August 24 2009, at which time they became aware of the fraud. The 11th Circuit disagreed with the government’s argument that the offense was a continuing crime. A continuing crime continues to be perpetrated and extends the statute of limitations. The 11th Circuit concluded that offenses should not be considered continuing offenses unless the specific language compels that conclusion. The fact that the offense uses the explicit language “enter into” means the offense occurs on the date the marriage takes place.

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The main issue addressed in U.S. v. Pacchioli is whether the defendant’s bribery conviction was time-barred under the statute of limitations,18 U.S.C. §3285. The defendant was an electrical contractor who performed various maintenance services for a hospital run by the Memorial Healthcare system. In order to obtain lucrative service contracts with the hospitals, the contractor enticed the hospital’s facility managers with cash payments, kickbacks, and free goods and services. One of the free services the defendant provided to the managers were free electric generators installed for no charge.

The statute of limitations states that a person can only be prosecuted for an offense if charges are brought within five years after the offense has been committed. The defendant argued his crime fell outside the five year statute of limitations period because the agreement to commit a bribery occurred more than five years prior to the indictment’s return. The court of appeals rejected this argument, finding that his crime was completed at the time the electrical generators were installed. The defendant’s indictment, which tracked the bribery statute, 18 U.S.C. §666, charged him with giving, offering, or agreeing to give a thing of value to a person with intent to influence or reward an agent of the organization. The indictment specifically charged the defendant with giving the generator as a bribe, making the completion point for the crime at the time the bribe was given. The statute of limitations began to run when the installation the electrical generators at the facility manager’s home. The evidence presented to the jury showed the bribe was paid less than five years before the date of the indictment and within the limitations period. The trial court gave the jury a statute of limitations instruction, which allowed the jury to find him not guilty if it found the crime was completed more than five years before the indictment’s return. The court noted that the defendant did not challenge the instruction to seek a more precise wording on what the instruction meant for an offense to be completed.

Sufficiency of the evidence

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The defendant in U.S. v. Castro was indicted on five counts of possessing marijuana and cocaine with intent to distribute and several firearms offenses including carrying a firearm during and in relation to a drug trafficking offense. Castro had hired an attorney and entered a not guilty plea at his arraignment. He later negotiated a plea agreement with the government which was reduced to writing and signed by Castro just minutes before his change of plea hearing. Because he was taking medication and said he was under the influence of the medication at that time, the plea hearing was postponed. The plea agreement called for Castro to plead guilty to seven of his charges including 3 drug counts and 4 firearm counts. A this change of plea hearing Castro told the district court that he did not want to go forward with the change of plea and was not happy with his defense lawyer and he wanted the court to appoint a new attorney from the public defender’s office to represent him. The district court confirmed that Castro wanted a new attorney. At the request of the defense counsel, the district court advised Castro of the consequences of reneging on his plea agreement with the government. The district court asked Castro if he understood that the government made certain concessions in the plea offer and if he does not plead the government may charge him with other things that will make the sentence more severe. After being told that by the district judge, Castro announced that he would proceed by taking the plea with his counsel and he withdrew his request for the appointment of a public defender. He was later sentenced to 156 months. Soon after the sentencing he moved to withdraw his guilty plea saying he was unhappy with his counsel and his sentence. In his appeal, Castro argued that the district court participated in plea discussions in violation of Rule 11(c)(11).

The 11th Circuit repeated the rule that provides for the parties to engage in plea discussions but the rule was designed separate the sentencing court from any plea discussions for two reasons: 1) judicial participation in the plea process may coerce the defendant into accepting a plea agreement involuntarily; 2) judicial participation may affect the court’s impartiality; and 3) judicial participation affects the appearance of impartiality. Citing 11th Circuit’s opinion in United States v. Johnson, the court said that any discussion between the defendant and the sentencing court of the consequences of a guilty plea as compared to going to trial is inherently coercive. The court reaffirmed that Rule 11 creates a bright-line rule and the district court violated the rule against judicial participation in plea discussions by telling Castro he faced a sentence even more severe if he rejected the plea agreement. It did not matter that the district court may have been motivated by concern that Castro be thoroughly apprised of the situation he faced, no matter how well-intentioned. Until a plea agreement is reached between the parties, the sentencing court cannot offer comments touching upon proposed or possible plea agreements because those comments could coerce the defendant into entering a plea involuntarily. The Defendant was allowed to withdraw his guilty plea and the case was assigned to a different judge.

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