Sufficiency of the Evidence

Published on: March 23, 2022

Fisherman’s theft of trade secret conviction overturned for lack of venue but netted on extortion for Grouper sites.

Timothy Smith was a software engineer living in Mobile Alabama. An avid fisherman, he learned about a website called “Strikelines” that sells the coordinates of artificial reefs placed in various locations in the Gulf of Mexico by commercial fisherman. These reefs are attractive fishing locations but the coordinates are not shared to prevent overfishing. Strikeline obtains the coordinates by launching boats equipped with sonar equipment from its base in Pensacola, Florida that trowel through the Gulf of Mexico and discover reef locations. After processing the raw data collected by sonar, Strikeline offers for sale the private reef coordinates for $ 199.

Published on: November 23, 2021

Miami Police officers’ convictions for providing protection to undercover drug dealer is upheld

by The Swartz Law Firm

Two Miami Police officers were charged and convicted in federal court with conspiracy to possess with intent to distribute over five kilograms of cocaine, for protecting drug couriers, and for possession of a firearm during and in furtherance of a drug trafficking offense. The investigation began with an F.B.I. investigation into police corruption in the Miami Police Department. Posing as would-be drug dealers, the F.B.I.’s investigation focused on an officer named Anderson, who agreed to cooperate. The F.B.I. created a reverse sting posing as drug dealers in need of protection for delivering drugs and money.

Wearing a wire, Anderson approached an officer named Schonton who agreed to give protection for the undercover drug dealer. When Schonton was asked if she knew other law enforcement officers willing to participate, she suggested Kelvin Harris, who become involved in this reverse sting operation designed by the F.B.I. Harris received money for his assistance from the undercover agent posing as a drug dealer. The undercover F.B.I. agent told Schonton and Harris that more officers were needed for a bigger job, and the two officers also recruited Miami Police officer Archibald. The F.B.I. set up an undercover sting that involved transporting 20 kilograms of cocaine that would arrive in Miami. The recruited officers provided protection by providing a police escort to the hotel where the undercover agents transporting the contraband. All the officers were present when the drugs were unloaded and unpacked at the hotel. Each paid $4,000.

Archibald and Harris went to trial in federal court. Archibald claimed he did not know what was going on during the first sting operation. He also argued he was entrapped then he met the undercover agents who scared him. Harris testified in his defense claiming that while he realized Schonton and Anderson were involved in illegal conduct, he decided to conduct his own surreptitious but lawful investigation by infiltrating the drug operation. The jury found Harris guilty on all counts and found Archibald guilty on most counts.

Published on: April 2, 2019

Solicitation of sexually explicit images from a purportedly 13-year-old girl was notice under the criminal statute

by The Swartz Law Firm

Caniff was convicted of attempting to entice a minor to engage in illegal sexual conduct, with advertising for child pornography and attempted production of child pornography. The underlying facts began with an F.B.I. agent posing as a thirteen-year-old girl on Whisper, and online website and cellphone application that allows users to text or communicate anonymously with other users. The terms of Whisper’s use provide that individuals who use Whisper must be at least 13 years of age and users between the ages of 13 and 18 must be supervised by a parent.

The agent posted a photo of another agent that was age regressed to make the person look childlike posted a message from “Mandy” the purported 13-year-old. Caniff, a 32-year-old pharmacy technician responded to Mandy and after a series of text exchanges he sent several pictures of his penis and asked her for pictures of her genitalia and of her masturbating. Eventually Mandy agreed to have sex with Caniff. When he arrived at the location they were supposed to meet, he was arrested. After Caniff waived his right to remain silent, pursuant to the Fifth and Sixth Amendments, he agreed to talk to the officers without an attorney present and said he though Mandy was 18 and she was role playing.

Published on: March 15, 2019

Signing another person’s name to defraud constitutes identity theft

by The Swartz Law Firm

Munksgard applied for a line of credit at a small bank operating in a few counties in west central Florida. To support his application, he submitted a surveying contract with a company Cal-Maine foods showing the signature of a Cal-Maine employee, Kyle Morris. The contract was fraudulent and Munksgard signed Morris’s’ name without knowledge or permission. He made multiple fraudulent applications for lines of credit by supporting the applications with fraudulent contracts signed by fictional employees. Munksgard was indicted on four counts of knowingly making a false statement in order to obtain a loan from an FDIC-insured bank in violation of 18 USC section 1014 and one count of aggravated identity theft for placing Morris’ signature on the Cal-Main Foods contract in violation of 18 USC section 1028A.

Published on: March 11, 2019

Prison officer’s extortion conviction upheld

by The Swartz Law Firm

Inmates at the Autry state Prison had a phone scam in which they would masquerade as law-enforcement or court officials and dupe their victims into paying them for fake infractions. Victims paid money to the inmates in the form of Green Dot numbers. Green Dot corporation sells debit cards that can be reloaded by purchasing a MoneyPak at the store’s checkout counter. Inmates possessed theses Green Dot debit cards but were not allowed to possess them in the prison so they possessed the numbers on pieces of paper and hid the papers in their cell until they could load the money. The succeeded for one inmate who collected over $15,000.

Paul Harris was a corrections officer at Autry state Prison when he discovered the scam. He worked on the shakedown team that conducted surprise search of the cell of an inmate. He began to find the Green Dot numbers and learned how the inmates obtained them and that they were worth money. Instead of turning the numbers over to supervisors, Harris loaded the money onto his Green Dot cards. Meanwhile the inmate’s scam continued. After the complaints about the scam and the FBI began to investigate, the Green Dot accounts showed that the amount Harris loaded on his Green Dote card exceeded his income. When confronted he eventually confessed.

Published on: November 26, 2018

Hiding cash payments from the IRS for luxury car purchases resulted in conviction

by The Swartz Law Firm

This appeal followed the conviction of Geovanys Guevara for causing a car dealership in Miami to file Form 8300s with the United States Treasury Department that contained false statements concerning Guevara’s identity as the individual who provided cash payments over $10,000 to buy four luxury cars: a Rolls Royce, a Lamborghini, a Porshe, and a Farrari. The Bank Secrecy Act requires any person engaged in a non-financial trade or business to file a Form 8300 with the United States Treasury. The form reports any cash payment over $10,000 received by the business or trade. It requires the business to verify and record the name and address of the person from whom the cash payment was received along with social security numbers and taxpayer identification numbers of any person on whose behalf the cash payment is offered.

At trial the Government presented a witness who testified that Guevara paid him $1,000 to go to the car dealer and put title for two of the four cars in his name. The government also presented Guevara’s interview in which he admitted that he was the true owner of all four cars. He admitted purchasing the cars and placing two of the titles in the name of his friend. He also admitted that the car dealer owner knew that Guevara was paying for theses vehicle. He said he bought the cars using money from a therapy clinic he owned and admitted paying his friend to go to the dealership to take title to the cars.

Published on: November 12, 2018

Life sentence for attempting to give ISIS material support upheld

by The Swartz Law Firm

Harlem Suarez appealed was sentenced to life in prison without parole following his conviction for one count of attempting to use a weapon of mass destruction in violation of 18 U.S.C. 2332 and one count of attempting to provide material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. 2339B. A jury found him guilty following an eight-day trial.

In his appeal he argued the evidence was insufficient to support his conviction for attempting to uses a weapon of mass destruction. The statute has a jurisdictional element, which requires that the offense, in this case an attempt, would have affected interstate or foreign commerce. Suarez argued the government was required to prove a substantial effect on interstate commerce to satisfy the jurisdictional hook. The court of appeals disagreed by holding that the government only had to prove that a de minimis effect on interstate commerce satisfies the jurisdictional element. Because the minimal effect standard is a low bar, the court found the government presented sufficient evidence that a terrorist bombing in Key West would have had at least a minimal effect on interstate commerce.

Suarez also argued the evidence was insufficient to support his conviction to support a foreign terrorist organization. He claimed that Suarez did not coordinate or directly contact an actual foreign terrorist organization because he had contact only with the government informant and undercover agents. The court rejected this challenge finding that it is irrelevant that he did not make contact with ISIS because the law requires only that Suarez directed or attempted to direct his services to ISIS. Suarez’s mistaken believe that the government informant and the undercover agents were actual ISIS agents is not a defense to his attempted crime. He had the requisite intent to coordinate with ISIS and he took substantial steps to do so. The court found there was substantial evidence Suarez knowingly provided material support to a foreign terrorist organization and for attempting to use a weapon of mass destruction.

Published on: November 7, 2018

Arms Control Export Act conviction upheld with sufficient evidence

by The Swartz Law Firm

Wenxia Man appealed her conviction and sentence for conspiracy to export defense articles without a license in violation of the Arms Control Export Act 22 U.S.C. 2778. The conviction arose from her participation in a series of discussion with Xingsheng Zhang, a Chinese operative, and an undercover agent with the Department of Homeland Security, Jerry Liu, about how to purchase and export to china military aircraft engines, a military drone, and related technical data. Although the sale never occurred the United States charged Man with conspiring to violate the Act. In her appeal she challenged her conviction on the grounds that the evidence against her was insufficient to establish a conspiracy and that she was entrapped.

In arguing the government failed to prove that she conspired to violate the Act she first argued that she never entered into a conspiratorial agreement with Zhang or anyone else to obtain purchase or export defense articles. She contended that proposals made by Liu were rejected by Zhang and the parties never advanced beyond mere discussion or ever finalizing an agreement. At best, she argued, it showed that she and Zhang agree to submit inquiries about products and negotiate an agreement but did not have an agreement. The court of appeals rejected this argument finding that Man and Zhang agreed to export unlawfully the items charged in the indictment and that this agreement was not wholly conditioned on Liu’s participation. It found the record supported the reasonable inference that Man and Zhang reached an independent agreement to acquire the engines and drones from any available source and that the duo would have maintained a partnership or joint venture in addition to the one that they proposed to Liu.

Published on: October 3, 2018

Mortgage fraud conviction upheld despite speedy trial challenge

by The Swartz Law Firm

Nelson Machado lived in Orlando, Florida from 2005 through 2009, then moved to Bradenton, Florida, before he moved back to his native Brazil in December of 2009, to work as a pastor in Brazil. In April of 2010, he was indicted for three counts of wire fraud. The indictment charged him with wire fraud in violation of U.S.C. section 1343 accusing him of making false representations as part of a scheme to obtain mortgage loans. The evidence showed he applied for and obtained three mortgage loans worth a total of $739,900. When he applied for the loans Machado had a monthly salary of $3,000 and very little savings. The monthly payments for those three loans totaled $5,322.00. The properties he purchased with the loans were located in Cape Coral, Florida and valued at $509,900 with first and second mortgages totaling $490,000. The false statements he provided were that he was the manager of a tile corporation with $79,949 in personal savings. He also provided false documents regarding his employment and bank account.

He then contracted to purchase a second property and applied for a $249,900 mortgage loan. As in the first property, he provided false statements about his employment and his bank account with false documents to back it up. On top that, he failed to disclose the financial details of his first property purchase, indicating that it would be his primary home.

Published on: May 10, 2018

False arrest claim against Atlanta Police officer denied

by The Swartz Law Firm

The Eleventh Circuit rejected Austin Gates’ federal civil rights claim against three City of Atlanta Police officers for arresting him without probable cause during a protest in downtown Atlanta. Gates claimed the arrest was in violation of the Fourth and First Amendments of the Constitution as well as various Georgia state court laws. Gates participated in a march protesting a grand jury’s decision not to file charges in the Ferguson, Missouri police-shooting. During the protest he was given a “V for Vendetta” mask by another protester. The mask was a stylized image of the Guy Fawkes character from the movie “V for Vendetta” and designed to cover the entire face. He and other protesters wore the same masks to express his disagreement with the grand jury’s decision and to maintain anonymity during the protest. At some point during the protest Defendant police chief Whitmire ordered the protesters to remove their masks multiple times over a loudspeaker and warned that any mask-wearing protesters would be arrested. After the warning, Whitmore issued orders to arrest any protesters wearing masks and the plaintiff was arrested. When asked why he was being arrested, the defendant officer did not immediately respond and after conferring with other officers, he was told the arrest was for wearing a mask. Gates followed with this complaint against the City and the officers pursuant to section 1983.