Published on:

by

 

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.

Continue reading

Published on:

by

 

In U.S. v. Osman, the defendant appealed his restitution order following his guilty plea to one count of production of child pornography, one count of distribution of child pornography and one count of possession of child pornography. On six occasions Osman sexually abused an molested his approximately one-year-old daughter and used his cell phone to photograph his sexual abuse. He sent some of the child pornography images he had created to another individual in exchange for other child pornography images. When Department of Homeland Security executed a search warrant at Osman’s residence he admitted to using the internet to search or child pornography. A forensic examination of his electronic services revealed at least 94 movies and 588 images of child pornography that included his daughter.

After a grand jury indicted him with possession, production, and distribution of child pornography. As part of his plea he agreed to make full restitution to his daughter under the Mandatory Restitution for Sexual Exploitation of Children Act 18 U.S C. 2259.

At the restitution hearing Osman argued the government’s estimate of A.E.’s future counseling needs was speculative given her very young age. The government’s position was that any estimate of damages and further counseling needs would be speculative to some extend in a case involving an infant victim but nevertheless asserted restitution was appropriate. The government used a licensed counselor who specialized with child victims of sexual abuse and testified about her experience involving victims of child sexual abuse and working with children at various developmental stages. She acknowledged her estimate about A.E.’s future need would be based on prediction about the care she would likely need and was in some sense speculative but her opinion was based on many years of research about the consequences of early adverse life events and her extensive experience counseling victims of abuse.

Continue reading

Published on:

by

 

In Stephens v. DeGiovanni, the Plaintiff Stephens filed a lawsuit against Deputy DeGiovanni of the Broward County Sheriff’s Office arising out of his arrest. Two of his claims raised in this appeal for false seizure (arrest) and excessive force pursuant to 42 U.S.C. §1983. In this appeal to the Eleventh Circuit court of appeals, Stephens challenged the trial court grant of summary judgment to the deputy on the false arrest claim there was probable cause for the arrest. The trial judge also granted summary judgement on the excessive force claim because the force used in the arrest was de minimis.

The facts surrounding this arrest took place on February 16, 2009 in Fort Lauderdale, Florida in an apartment complex where Stephens and his cousin were guests of the cousin’s girlfriend, Claudia White. White’s apartment was on the second floor of a complex with businesses on the first floor and apartments on the second floor. Stephens and his cousin were checking on a car owned by Stephens girlfriend that she was planning to sell to White. White, who is a car mechanic, was sitting on the metal frame of the care using a diagnostic scanner to determine why a check engine light had come on.

Deputy DeGiovanni was on road patrol at 8:15 pm and aware of recent burglaries in the area. Because it was late and all the businesses were closed he decided to investigate so he approached and asked what they were doing. After they explained what they were doing, the deputy informed them that they were not supposed to be there. They explained they were invited guest of White who lived at the complex. The deputy asked for identification and Stephens produced a State of Florida identification card. He possessed a driver’s license issued in Jamaica where was from. While standing by the deputy Stephen’s phone rang. When he answered it the deputy slapped it away. When Stephens asked the deputy to get a field supervisor on the scene, the deputy told him to shut his mouth. The deputy then slugged Stephens in his chest slamming him into the driver’s seat. The deputy proceeded to hit Stephens two more times causing injury to his hand and arm.

Continue reading

Published on:

by

McCullough was arrested and convicted for marijuana distribution. His conviction was affirmed by the Eleventh Circuit Court of Appeals in United States v. McCullough. This is how the facts unfold. He was initially pulled over by an Alabama police officer for driving with a partially obscure license plate. While the numbers on the Alabama issued plate were visible, a license bracket in the shape of an eagle with outstretched wings obscured pares of the license plate including the state of issue. Alabama law provides that every motor vehicle operator shall at all times keep the license tag or license plate plainly visible on the rear end of a mother vehicles. The officer stopped McCullough because the officer believe that he had violated this law by having the eagle bracket. When McCullough was stopped, the officer issued him a ticket for failing to have a plainly visible license plate.

The officer then smelled marijuana coming from the inside of the truck and a search of the truck led to the discover of $8,335 and a marijuana. After the officer seized $4,000 and a key to a hotel room, the officer obtained a search warrant for the room and found $1,000, bags of marijuana and a gun.

He was charged with possession with the intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm. He moved to suppress on the grounds the officer lacked probable cause or reasonable suspicion to stop him for partly obscuring the license plate because Alabama law only requires that the alphanumeric symbols be visible not the full license plate. The district court denied the motion. He pleaded guilty to each count before a magistrate judge. Prior to sentencing the probation officer calculated the guideline range to be 262-327 base on his status as a career offender with a career history e category of VI and a consecutive mandatory minimum of five years for being a felon in possession of a firearm.

Continue reading

Published on:

by

 

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.

Continue reading

Published on:

by

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.

Continue reading

Published on:

by

 

In U.S. v Vargas the defendant was charged with conspiracy to possess with intent to distribute and possession of cocaine after Alabama law enforcement officers discovered cocaine and methamphetamine in Vargas’ vehicle. Vargas filed a motion to suppress on the grounds that Vargas’ traffic stop that led to the discovery of the drugs violated Fourth amendment.

Here, Alabama law enforcement officer pulled over the defendant for following too close and failing to maintain its lane. The driver immediately admitted that he did not have a driver’s license. The officer asked him to come back to the officer’s car where the officer asked him routine questions about where he was going. After about three minutes the officer informed him that he was issuing him a warning for following too close. He continued to ask defendant some questions to complete the warning. He then approached the passenger to determine whether he could operate the vehicle. When the passenger said he did not have a license, the officer spent another 12 minutes working with the two in an attempt to determine how to safely and legally get the car moved. About 18 minutes into the traffic stop and 15 minutes after the enforcement officer informed he was issuing a warning, the officer asked the defendant for consent to search the vehicle and the defendant consented. The search turned up the drugs hidden in the vehicle.

The defendant contended on appeal that the length of the traffic stop violated the fourth amendment. The court cited the Supreme court’s opinion in Rodriguez v United States which states as a general matter a traffic stop exceeding the time needed to handle the matter for which the stop was made is a violation of the Constitution’s shield against unreasonable seizures.

Continue reading

Published on:

by

 

In U.S. v. Votrobek the appellants were convicted by a jury of conspiracy to distribute drugs, conspiracy to launder money and substantive charges of money laundering and maintaining a place for unlawful drug distribution.   The charges arose from their operation of a pill mill, a term used to describe a medical clinic that prescribes narcotics for illegitimate purposes. The appellants first learned how to run a pill mill clinic from a Zachary Rose who operated three clinics in Jacksonville Florida. Once law enforcement began investigating Rose’s clinics, the appellants left and established their own clinic, AMG, in the fashion of a typical pill mill.

Later, Votrobek was indicted for conspiracy to distribute Oxycodone and Alprazolam in Rose’s Florida clinics but a jury acquitted him.

Less than two months after his acquittal in Rose’s Florida pill mill, a Federal Grand jury in Georgia indicted Votrobek and others regarding their involvement in AMG, charging them with conspiracy to distribute Oxycodone, Xanax, and other drugs for other than a legitimate medical purpose. He was convicted on all counts. In his appeal, he claims the district court committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds. He argued the conspiracy counts were barred by Double Jeopardy and the trial court committed plain error by not dismissing the substantive convictions based on prejudicial spillover.

Continue reading

Published on:

by

In U.S. v Scheels the Defendant pled guilty to one count of production of child pornography and one count of receipt of child pornography and received a 600-month sentence of imprisonment. In calculating his sentencing guideline range, the district court imposed a four-level enhancement under 2G2.1(b)(4) of the U. S. Sentencing Guidelines. This guidelines provision requires the imposition of a four-level enhancement where a defendant’s “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The defendant conceded that the pornography he produced does depict sadistic or masochistic conduct and admitted that it contained among other things images involving whipping and bondage. But the defendant argued that the enhancement should not apply to him because the sadistic or masochistic conduct in the pornography was directed at him not the child victim.

Continue reading

Published on:

by

 

After a two-week trial, defendant in U.S. v Stein was convicted of mail, wire, and securities fraud based on evident that he fabricated press releases and purchase money orders to inflate the stock price of his client, Signalife, Inc, a publicly traded manufacturer of medical devices. The district court sentenced Stein to 205 months in prison, ordered $5 million in forfeiture, and $13 million in restitution. In his appeal Stein argued that the government failed to disclose Brady v. Maryland material to the defense before trial and knowingly relied on false testimony to make its case. As for the sentence, Stein argues that the district court erred in calculating actual loss for the purpose of the Mandatory Victims Restitution Act of 1996 (MVRA) and § 2B1.1 of the U.S. Sentencing Guidelines. He argued that in estimating actual loss the district court erroneously presumed that all purchasers of Signalife stock during the period the fraud was ongoing relied on false information advanced by Stein.   He also argued that the district court failed to take into account other market forces that likely contributed to the investors losses.

After the Department of Justin conducted a criminal investigation of Stein and his work with Signalife, he was charged with money laundering and wire and securities fraud. Prior to his trial Stein moved to produce documents in the Security and Exchange Commission’s (SEC) files. The government’s response was that is lacked control over the SEC and it did not conduct a joint investigation with the SEC. Prior to trial Stein learned that in the course of its investigation the DOJ had accessed a very small subset of documents in the SEC’s date base which the DOJ then provided to him. As a result he filed a motion to dismiss on the basis of this Brady violation. Following his conviction at trial, he obtained additional documents from the SEC that he believed were exculpatory and he filed motion for a new trial based on the Brady violation.

Continue reading

Contact Information
14 NE 1st Ave
#1211
Miami, FL 33132
Phone: (305) 579-9090 Fax: (305) 579-9090

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Swartz Law Firm
JUSTIA Law Firm Blog Design