White Collar Criminal Defense Lawyer Blog

Published on: October 31, 2016

No Fourth Amendment violation for deputies’ warrantless entry and search and seizure

Fish v. Brown involves a civil rights lawsuit against two Holmes County, Florida, deputy sheriffs for entering the plaintiff’s home without a warrant and for a search and search in violation of the Fourth Amendment. This is an appeal from the district court’s dismissal on the ground that the deputies were entitled to qualified immunity.

The Plaintiff, Fish, had a sexual relationship with Margo Riesco which ended with ill feelings when Fish told Riesco’s husband about their affair. Unconnected to their relationship, a Florida State court entered an injunction in favor of Fish’s sister and brother-in-law protecting them from Fish and his acts of domestic violence. The injunction included a prohibition from having any firearm in his care custody or possession. Riesco learned of the injunction through the sister-in-law.

Riesco wanted to retrieve her personal belongings from Fish and before driving there she stopped at the Sheriff’s office to request an escort to Rieso’s house, claiming she that she feared for her safety during the encounter. She called Riesco to tell him she was in route to his home for the purpose of retrieving personal items left there.

When they arrived Riesco walked through screen porch doors into the sunroom and the deputies followed. Fish came to the door and the deputies stood behind her. She told Riesco why she was there and that she brought the deputies to watch her so she would not steal anything of hers. He allowed Riesco into the house and the deputies followed. While inside the house they spotted his firearms in the bedroom and he was placed under arrest for violating the domestic violence injunction and resisting without violence. After the criminal charges were dismissed he filed a federal civil rights claim for false arrest, illegal search and seizure, and claims under state law for false arrest, imprisonment, and malicious prosecution

Published on: October 27, 2016

Strip search of student found to be unconstitutionally excessive

by The Swartz Law Firm

In DH v. Clayton County School District, Defendant McDowell appealed the district court’s finding that as assistant principal his strip search of a minor student was a violation of clearly established constitutional law. McDowell, an assistant Principal at a public school in Georgia, conducted a strip search of a 12-year old 7^th grader in an office, based upon reports and his individualized suspicion that DH possessed marijuana at school DH. Prior to the search McDowell discovered marijuana in the backpack of another student who said that DH his classmate also had marijuana. In response to D.V.’s implication of DH, McDowell searched DH, starting with his backpack. When no marijuana was found, he had DH remove his clothes down to his underpants. When nothing was found in his clothes McDowell instructed him to remove his underpants exposing his genitals to McDowell. Another officer was present along with the other student suspects. No marijuana was found.

McDowell raised the defense of qualified Immunity. First the court considers whether McDowell’s search deprived DH of a constitutional right. The second determination was whether the law was clearly established so as to justify imposition of §1983 liability. In determining whether a search of a student violates the Fourth amendment protection against unreasonable search and seizure the court made a two-prong inquiry. First, it asks whether the search is justified at its inception and there are reasonable grounds for suspect in that the search will turn up evidence of a violation of law or school rules, and second, whether the scope of the search is reasonably related to the circumstances which justified the interference in the first place.

Published on: October 19, 2016

Enhanced sentence imposed for sexual encounters with the same minor on separate occasions

by The Swartz Law Firm

In U.S. v Nagel the defendant appealed his 292 month sentence imposed after pleading guilty to a charge of enticing a minor to engage in sexual activity in violation of 18 U.S.C. section 2422(b) His appeal centered around the procedural and substantive reasonableness of his sentence specifically whether the district court was correct in not grouping count one and count two of the defendant’s conviction in accordance with section 3D1.2 of the federal sentencing guidelines because the conduct underlying each count caused a separate and distinct harm to the victim.

The facts leading to this conviction resulted from the defendant contact with the minor through Facebook leading to the defendant convincing the minor to meet him at the store where he was employed and there they had a sexual encounter on one occasion. The facts leading to the second count arose from separate sexual activity with the minor as his residence. The presentence investigation report treated counts one and two as separate and distinct groups for the purpose of determining the federal sentencing guidelines. The defendant challenge this decision arguing the counts should be grouped together. The court rejected his argument finding that if was proper for the district court to treat the two counts of enticement of a minor, which involved sexual misconduct that occurred on different days, as not subject to grouping. Nagel’s emphasis on the consensual nature of the relationship was unpersuasive and not relevant to the non-grouping language of section 3D1.2. According to the plain language of the guidelines and the accompanying commentary, the district court was correct in declining to group Nagel’s two counts of enticement. Even though the conviction involved the same minor, the sexual misconduct occurred on different days and involved separate instances of harm to the victim.

Published on: October 4, 2016

An arrest pursuant to a civil writ of bodily attachment for unpaid child support is equivalent to a warrant under the Fourth Amendment

by The Swartz Law Firm

In U.S. v Phillips the defendant challenged the arrest on a civil writ of bodily attachment for unpaid child support on the grounds of a violation of the Fourth Amendment. As a result to his stop and arrest police officer discovered he was in possession of a firearm at the time he was being arrested on the writ. The issue addressed here was whether a writ of bodily attachment is a Warrant within the meaning of the Fourth Amendment of the U.S. Constitution so that the officer found the firearm during a valid search incident to arrest.

A Florida court issued a writ of bodily attachment for unpaid child support that ordered the police to take Phillips into custody and confine him to the county jail but the writ allowed Phillips to purge this contempt and immediately released from custody by the payment of $300. The police also wanted to question Phillips about a recent shooting in Miami. When an officer who recognized him and knew about the writ of bodily attachment, approached him, the officer patted him and found the loaded .380 caliber firearm. Because Phillips had a prior drug felony, he was indicted on one count of being a felon in possession of a firearm and an armed career criminal.

Published on: September 30, 2016

Life term of supervised release was not an unreasonable sentence for sex offender

by The Swartz Law Firm

U.S. v. Trailer is an appeal from a sentence impose for violation the terms of supervised release that was part of the defendant original sentence for failing to register as a sex offender in violation to 18 USC §2255. A special condition of the original supervised release condition what the defendant was prohibited from having contact with children under the age of 18. A few months after the defendant’s supervised release began, the probation officer filed a petition seeking revocation of his supervised release stating that the defendant was living with his new wife’s four minor children; failing to follow the probation officer’s instruction to have no contact with these children, and failing to answer truthful inquires by his probation officer relating to whether he was having contact with children. The court revoked his supervised release and imposed a sentence of 18 months and a life term of supervised release.

The sole issue on this appeal is whether the life term of supervised release is substantively unreasonable because it is greater than necessary to accomplish the goals of sentencing and is not reasonably related to the 18 USC § 3553 factors.

Published on: September 29, 2016

Sentencing guidelines require a sentencing enhancement for vulnerable victims despite prior case dicta

by The Swartz Law Firm

In this appeal Birge was convicted of one count of mail fraud pursuant to 18 U.S.C. section 1341 for writing herself $767,218.99 while serving as the Chief Clerk of the probate court of Chatham County, Georgia. The checks were drawn from the conservatorship accounts belonging to 31 minors, two incapacitated adults, and two estates. She was sentenced to 72 months imprisonment and appealed that sentence raising the issue that the district court erred in applying the vulnerable victim enhancement when it calculated her guidelines range.

Under the federal sentencing guidelines a vulnerable victim of an offense is a victim who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Birge argued that the district court should not have applied the enhancement to her because there is no evidence that she targeted the vulnerable victims. The court found that amended versions of the language of commentary to section 3A1.1 of the guidelines revised the language to only require that the defendant knew or should have known of the victims’ unusual vulnerability.

The Sentencing Commission amended the commentary to the guideline to include language that the adjustment applies to offenses involving an unusually vulnerable victim in which the defendant knew or should have known of the victim’s unusual vulnerability. The court pointed to precedent holding that commentary in the guidelines Manual interpreting or explaining a guideline is binding on the courts unless it violates the Constitution or a federal statute.

Published on: September 21, 2016

Child pornography sentence of 151 months found to procedurally and substantively reasonable

by The Swartz Law Firm

In United States v. Cubero the Defendant appealed from his 151 month sentence and life-term of supervised release after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.

He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.

Published on: June 29, 2016

Federal prosecution must prove it had jurisdiction to charge defendants with drug trafficking on a vessel stopped on the high seas

by The Swartz Law Firm

In the Iguaran appeal, the defendant pled guilty to one count of conspiring to distribute cocaine while on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act 46 U.S.C. section 70503(a)(1). On appeal, the defendant challenged the district court’s jurisdiction arguing that the court did not have subject matter jurisdiction because the record does not establish that the vessel in which he was apprehended was subject to the jurisdiction of the United States. The government argued in opposition that the case had to be reviewed by appellate court for plain error because Iguaran did not raise his jurisdictional objection in the district court. The appellate court rejected the argument finding that the district court’s subject matter jurisdiction is a question of law that must be reviewed de novo even when it is raised for the first time on appeal.

To be convicted of conspiracy to distribute a controlled substance under this statutes the government must show that vessel was when apprehended subject to the jurisdiction of the United States. Various circumstances render a vessel subject to the jurisdiction of the United States, including a vessel without nationality. This includes a vessel in which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for the vessel. If Iguaran and his coconspirators failed to make a claim of nationality, their vessel was without nationality and subject to the jurisdiction of the United States.

Published on: June 23, 2016

Conviction for defrauding the IRS using the identifications of Florida inmates upheld

by The Swartz Law Firm

Appellants in the Pierre opinion appealed their federal criminal convictions and sentences for conspiracy to defraud the Internal Revenue Service, conspiracy to traffic in unauthorized access devises, aggravated identity theft and other substantive counts of identity theft following a jury trial. The scheme in this case involved filing fraudulent income tax returns. The Defendants filed tax returns in the names of Florida prison inmates. The tax refunds were paid to the TaxProfessors’ debit cards that were used at automatic teller machines to obtain cash.

The scheme unraveled after an officer spotted a Cadillac with dark tinted windows and could not see inside the vehicle. He also noticed a temporary tag on the vehicle that was registered to the Defendant whose family owned a body shop that authorities suspected fraudulently issued temporary vehicle tags. The officer made a traffic stop because the he believed the tinting on the windows was below the standards permitted by Florida law. After receiving consent to search the inside of the car the officer found prepaid debit cards issued by a business that was called TaxProfessor. The investigation into the debit cards led to a search warrant for the home of a defendant who was connected to TaxProfessor. The Defendants also approached an employee of the Florida Department of Children and Family Services as a child protective investigator who had access to personal identifying information through a state database. The Defendant paid the DCF employee for a printout from the website which contained a list of inmates and SSN’s for 25 names on the list. Tax returns were filed using the inmates’ information and the tax refunds were loaded onto these debit cards for TaxProfessors accounts.

Published on: June 13, 2016

Above guidelines sentence for federal supervised release violation reversed for sentencing court’s failure to state reasons

by The Swartz Law Firm

After serving his 195 month federal sentence for possession of a firearm Defendant Parks went on federal supervised release. Fifteen months later Parks was arrested by state authorities for burglary and grand theft. Parks plead guilty to the state court charges and was sentenced to 455 days, with credit for time served. On the day of his sentencing he was taken into federal custody and charged with a violation of his federal supervised release based on the facts of his state court charges. When he went before the federal judge for his violation hearing he admitted having committed the violation because he had just pleaded guilty in state court. The federal judge then sentenced him to 60 months incarceration, though his sentencing guidelines were 21-27 months. The sentencing judge did not announce how he arrived at that sentence and did not mention the 18 U.S.C. §3553(a) factors.

Parks appeals the sentence on the grounds that the trial court failed to consider or even acknowledge the statutory factors under 18 U.S.C. §3553(a). Furthermore, he argued the trial court failed to give a specific reason for his upward departure guideline sentence as required by 18 U.S.C. §3553(c)(2). Under §3553(c) the court is required to state in open court the reasons for its imposition of the particular sentence. If the sentence is outside the applicable guideline range the court must give the specific reasons for the imposition of that sentence.