White Collar Criminal Defense Lawyer Blog

Published on: October 5, 2017

Evidence was sufficient to prove possession of child pornographic images

In U.S. v Little received multiple emails on his smart phone containing child pornography on December 21, 2013, while he was in Texas. At the time he was in Texas he opened the email and the pornographic attachments. Then Little moved from Texas to Tampa Florida to work on a shrimp boat. Before departing on the boat he emailed back and forth to a man named Dominic Hall asking for more pictures. The day after he returned from the boat trip he responded to Hall’s email by attaching a child pornographic photo. He used that same email account to send a one email containing child pornography.

Little was charged with transporting child pornography on January 26, 2013 and with possessing one or more depictions of child pornography from December 21, 2012 through January 26, 2013. Prior trial he filed a motion to dismiss both counts for improper venue which the trial court denied and following trial he moved for a judgment of acquittals as to the possession count that was also denied.

Published on: September 23, 2017

New sentencing hearing ordered for evidence to support identity theft enhancement

by The Swartz Law Firm

In U.S. v Wright the defendant Wright pled guilty to conspiracy to commit wire fraud and aggravated identity theft by filing fraudulent tax returns in the name of identity theft victims in order to obtain the refunds in violation of 18 USC §1349 and possessing 15 or more counterfeit and unauthorized access devised with the intent to defrauds in violation of 18 USC §1029. Other counts involved possession of names and social security number of five different people. The factual proffer of the plea agreement revealed that the IRS discovered fraudulent returns coming from the same Interne Protocol (IP) address what turned out to belong to a Florida apartment that was rented by Wright. The IRS agents executed a search warrant at the apartment where they found person identifying information PII for thousands of people in a number of places in the apartment. After seizing and analyzing the documents, the IRS determined there were 12,124 identities, 331 debit of credit cards containing account information and 2,090 identities found on the computers and flash drive.

The district court sentenced Wright to 84 months. Because the intended loss on all the tax returns totaled $868,472 plus an additional $6,905,500 representing $500 for each of the 13,811 remaining compromised identities found in the apartment. The issue on appeal was whether the loss amount calculated for determining Wright’s sentencing should the $500 amount for each of the remaining 13,811 compromised identities. The appeals court refined the issued by asking whether the 13,311 compromised identities qualified as “access devises” under any part of the definition for access devices as given in the sentencing guidelines. While the court of appeals found the 331 debit or credit cards and numerous social security number are access devises, the question became whether the other thousands of compromised identities which were described only as “personal identifying information.”

Published on: September 16, 2017

With no evidence Defendant knew he possessed drugs, the conviction is thrown out

by The Swartz Law Firm

In U.S. v. Louise, the Customs and Border Protection (CBP) was tipped off that the Ana Celia, a coastal freighter used to export goods from the United States to Haiti, was returning from Haiti to Miami carrying narcotic drugs. While the boat was docked in the Miami port, CBP agents set up surveillance of the boat. At one point the agents watched as a forklift picked up boxes from the boat and that were driven off the boat. The owner of the boat, Ernso Borgella, directed the forklift driver to place on the dock. Later a Nissan car which pulled up and Borgella told the driver to pull the car to park near the boxes. Two unidentified men loaded the boxes into the back seat of a white Nissan and Louis began to drive slowly out of the shipyard while Bogella walked alongside. After driving past the front gate of the shipyard the Nissan was stopped by law enforcement vehicles with lights and sirens. Louis exited the car and began to run. The agents found that the boxes in the back seat contained 111 bricks of cocaine.

Louis was charged with conspiracy to possess with intent to distribute cocaine and with possession of cocaine. After a two-day federal criminal trial the jury found Louis guilty on both counts and the district court denied his motion for an acquittal. In this appeal Louis challenged his conviction arguing that the court should have found the evidence was insufficient to find he conspired to distribute drugs.

Published on: September 1, 2017

Entering defendant’s home under the ruse of investigating a reported burglary not a Fourth Amendment violation

by The Swartz Law Firm

In U.S. v. Spivey, the defendants Spivey and Austin reported to police their home had been burglarized. When the police caught the burglar, he informed them that this residence was the site of substantial credit-card fraud and much high-end merchandise was kept there.

Two South Florida Organized Fraud Task Force members began investigating credit card fraud by the defendants and they went to the residence on the pretext of acting as detectives investigating the two burglaries. The detectives wore a police jacket and displayed a gun and badge. When Austin saw the agents approaching she went inside to warn Spivey and told him to hide the card reader/writer in the oven.

The agents told Austin they were there to follow up on the burglary and Austin invited them in. They told Austin that one of the detectives was a crime scene technician and maintained the façade by pretending to brush for latent fingerprints. Austin led the agents through the house and pointed out their home surveillance video of the burglary. Inside the home the officers observed evidence of fraud including a card embossing machine, stacks of credit cards and gift cards, large quantities of expensive merchandise such as designer shoes and iPads. They both told the officers that the embossing machine had been left in the apartment before they moved in.

The officers then ended their ruse and told Spivey that they investigated credit-card fraud. After being advised of his rights, he gave written consent to the officers to conduct a full search of the home and of his computer and cell phone. In that search, the officers recovered high end merchandise, drugs, a handgun, and embossing machine, a card reader/writer and about seventy-five counterfeit cards. The defendants were indicted and both challenged the search with a motion to suppress all the evidence found on the grounds of a Fourth Amendment violation. The district court denied the motion and the defendants appealed.

Published on: August 28, 2017

Sentence increase for past sexual acts on a minor upheld.

by The Swartz Law Firm

David Ryan Alberts was sentenced to 120 months after pleading to receiving and possessing child pornography. Albers was arrested after F.B.I. agents in Orlando Florida went to Albert’s home and where he admitted accessing and receiving and possessing child pornography as long as 15 years ago. They discovered over 160 images on his thumb drive. Albert also admitted having engaged in sexual acts with his younger relatives on different occasions when they were under the age of 12 and when he was approximately 16 years old. The PSR also said that he admitted to searching for images depicting incest and law enforcement agents found numerous incest related stories on his thumb drive. Based on his teenage sex acts with his younger relatives, the PSR assessed a five-level increase to his offense level under section 2G2.2(b)(5) of the guidelines for engaging in a pattern of activity involving sexual abuse or exploitation of a minor. This gave him a range of 135-168 months. At his sentencing, he challenged the application of this enhancement though he did not challenge the factual accuracy of this history. The district court granted the defendant’s motion for downward departure and imposed a sentence of 120 months.

Albert challenged the five-level enhancement his sentence on several grounds. First, he argued that the government did not produce sufficient evidence to justify the enhancement. But the court concluded that Alberts did not object at sentencing to the statements in the PSR regarding his past sexual activity. Furthermore, his admissions were corroborated by his long-standing preoccupation with incest and pedophilia. Therefor the appellate court found the district courts findings of fact regarding the enhancement were not erroneous.

Published on: August 20, 2017

A jury does not have to unanimously decide the type of sexual activity the defendant attempted to commit on a minor to violate federal statute.

by The Swartz Law Firm

Defendant Freeman Jockisch was indicted and convicted of a violation 18 USC §2422(b) which prohibits the use of the Internet to attempt to persuade a minor to engage in sexual activity. The indictment alleged he tried to commit rape in the second degree, sodomy in the second degree, and sexual abuse in the second degree. The indictment listed three sexual offenses under Alabama statutes, which had Jockisch consummated with the minor, would have resulted in criminal charges under Alabama state law or federal law. Jockish is a former Mobile County, Alabam Commissioner.

The defendant began an email correspondence with someone he believed to be a 15-year old girl on Craigslist and said multiple times during his emails that he wanted to make love to the young woman. Eventually they agreed to meet and when the defendant arrived at the address and time she provided, he only found police officers waiting for him.

The district court turned down a defense instructed instruction and instead instructed the jury that it only had to unanimously find the defendant knowingly used the internet to attempt to persuade the minor to engage in unlawful sexual activity and that if the sexual activity had occurred the defendant could have been charge with a criminal offense under the laws of Alabama.

Published on: July 24, 2017

Defendant’s case reversed to give him a chance to address the judge at sentencing

by The Swartz Law Firm

Doyle pled guilty to distribution of more than fifty grams of cocaine bade and was facing a 10 year minimum sentence and up to live imprisonment. After calculating his advisory guidelines rant of 262 to 327 at sentencing the district court asked his counsel if she had anything to say before the sentence was imposed and she used the opportunity to argue successfully for a sentence at the low end of the advisory guidelines range. The court did not ask Doyle himself if he wished to make a statement or to allocate as required by the Federal Rules of Criminal Procedure. Doyle’s counsel did not object. Doyle later filed a pro se motion to vacate pursuant to 28 U.S.C. section 2244 claiming that he had asked his former counsel to file a direct appeal but that she had failed to do so. The district court granted his 2255 motion with respect to his failure to appeal claim and the court ordered the remedy spelled out in U. S. v. Phillips, which requires vacating the original sentence and resentencing him to the same sentence as before, so it can be reviewed on appeal. It does not reopen the sentencing. The same sentence as before was imposed.

The sole issue for the appellate court was whether Doyle’s sentence must be vacated because his right to give allocution, as embodied in the Federal Rule of Criminal Procedure 32 was violated. In the pre-Booker era, the court of appeals presumed prejudice from the district court’s failure to ask a defendant if he had anything to say before sentence was pronounced, except where the defendant was sentenced at the low end of the applicable mandatory guideline range. The question here is whether that low-end exception to a presumption of prejudice still applies in the post-Booker advisory guideline era.

Published on: July 22, 2017

Fugitive defendant in Saudi Arabia cannot challenge his kidnapping charge from outside the United States

by The Swartz Law Firm

In U.S. v. Shalhoub the court addressed the issue of whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order. If not then the issue becomes whether the court should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear.

This is how the facts unfold. Shalhoub, a citizen and resident of Saudi Arabia married a woman in Miami in 1985 and divorced four years later. A Florida judge gave Shalhoub and his ex-wife full shared parental responsibility over their only child. Shalhoub was indicted in 1997 for one count of parental kidnapping in violation of the International Parental Kidnapping Crime act, which made it a crime to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. He was never arrested and status was fugitive.

In 2015, Shalhoub filed a motion in Miami federal criminal court to allow his counsel to appear specially and seed a dismissal of the indictment arguing that the incitement lack factual specificity, challenge the Venue of the federal kidnapping law as contravening the laws of Saudia Arabia, along with other challenges.

Published on: July 15, 2017

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

by The Swartz Law Firm

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.