White Collar Criminal Defense Lawyer Blog

Published on: December 2, 2021

Trial judge dismissed fraud charges against two for lack of evidence but court of appeals saw it differently

Five co-defendants including Matthew Wheeler were charged in federal court with wire fraud, mail fraud, and conspiracy in violation of 18 U.S.C. §§1341 and 1349 for their involvement in a telemarketing scheme to defraud stock investors. Following an eight-week trial the jury found each defendant guilty on all counts. However, post-trial, the federal trial judge granted the judgments of acquittal based on insufficient evidence as to two defendants, Wheeler and Long. The three convicted defendants appealed their convictions while the government appealed the acquittal judgments.

The codefendants were charged with substantive mail and wire fraud and conspiracy to commit mail and wire fraud. It alleged that the defendants played various roles in a telemarking scheme that tricked investors into making stock purchases and misappropriated their money while operating out of two phone rooms. Certain codefendants worked as salespeople using an alias. Others had the role of managers, instructing salespersons on how to pitch a stock. Others played the role a loaders, who would play the role of high-level executives pushing the buyer to purchase “institutional” shares. Both phone rooms used and prepared written materials to aid their pitches to investors which contained inaccurate information but also included exaggerations and fabrications. Using the press releases and scripts, salespeople made false representations to potential investors, stating they were paid only in company stock, did not work for commissions, and that important businesspeople or celebrities were involved in the company they were pitching.

Published on: November 30, 2021

Cheerleaders who kneeled during the national anthem lose free speech lawsuit

by The Swartz Law Firm

In protest of police brutality against African Americans, quarterback Colin Kaepernick decided to kneel during the pregame national anthem. Kaepernick’s kneeling encouraged other athletes around the country to kneel as well. A year later a group of African American cheerleaders at Kennesaw State University, a public university in Georgia, followed that trend by kneeling in protest during their pre-game national anthem.

In reaction to the cheerleaders’ kneeling, the president of KSU, Samuel Olens, decided to prohibit the cheerleaders from kneeling. After conferring with Georgia state legislator Earl Ehrhart, the KSU Athletic Director, and the County Sheriff Neil Warren, Olens announced the “tunnel rule”. The cheerleaders would not be allowed on the field during the anthem but would instead remain in the stadium’s tunnel. Olens authorized the athletic director to announce the implementation of this new policy. After the first game that the tunnel rule was enforced, the amount of pressure and protests from students, faculty, the press, and the Board of Regents, forced Olens to announce that the tunnel rule would be abolished, and the cheerleaders would again be permitted to take the field before presentation of the national anthem.

Published on: November 24, 2021

Appeals court upholds lawsuit against Sheriff for detaining the wrong person

by The Swartz Law Firm

A deputy from the Martin County Sheriff’s Office pulled over Sosa while driving. After checking his name in the computer system and finding an outstanding warrant for a David Sosa, Sosa explained that he had been mistakenly arrested four years earlier for the same warrant. He told the deputy about the differences between himself and the real Sosa who was wanted. The deputy arrested him anyway, and he spent three days in jail before the sheriff’s office acknowledged he was not the wanted Sosa and released him.

Sosa filed a lawsuit pursuant to 42 U.S.C. §1983 against the Martin County Sheriff’s Department alleging a violation of his Fourth and Fourteenth amendment rights by falsely arresting him and for detaining him longer than he should have been detained. He made a claim pursuant to Monell that the Sheriff failed to institute policies and train deputies to prevent these types of things from happening. The trial court dismissed the case for failure to state a claim.

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: November 17, 2021

Shrimp company owner’s false claims for federal CDSOA subsidy leads to a criminal conviction

by The Swartz Law Firm

Michael Anderson owned and operated a shrimping business called Shrimpy’s in Savannah Georgia. From 2005 through 2007, Anderson submitted CBP (Customs & Border Protection) Forms 7401 in which he falsely claimed large business expenses as part of a scheme to acquire federal government subsidies under the Continued Dumping and Subsidy Act of 2000 (CDSOA). This federal program is designed to compensate U.S. domestic producers for losses that foreign producers caused by dumping underpriced goods into the American market. Enacted by Congress and administered by Customs, the program allowed the federal government to levy duties on specific foreign goods and distribute the funds to affected domestic producers of products, such shrimpers, who could claim subsidies by identifying their business expenses on the Form 7401 and mailing it to the Customs office in Indiana. Customs would then use the claimed expenses to calculate each qualifying domestic producer’s pro rata share of the funds and distribute the funds accordingly.

Mr. Anderson’s claims for 2005 through 2007 stated he had expenses exceeding $24 million in raw material expenses. He submitted 47 invoices from a company called R&R Seafood, which happened to be identical invoices except they bore different dates ranging from February 2005 to September 2006 and listed different rates for shrimp. The invoices showed he purchased 4.7 million pounds of shrimp for more than $29 million in two years. Based on his CDSOA claims, Anderson received a total of $864,292.40 in federal subsidies.

Published on: November 16, 2021

No error in jury instructions for trial of a man who lured a minor online by posing as a female

by The Swartz Law Firm

Phillips went to trial and was convicted of a three-count federal indictment charging him with 1) persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, 2) receiving material containing child pornography, and possessing material containing child pornography. He argued in this appeal that the district court constructively amended the indictment which charged him with knowingly and intentionally causing a minor to engage in sexually explicit conduct for the purpose of producing a video. He claimed the trial court committed reversible error to instruct the jury that the government need not prove he knew the boy was a minor. He also argued there was a Double Jeopardy violation of the constitution because that he was sentenced for both a crime and a lesser included crime based on the same set of facts.

The federal appeals court rejected his argument that the district court constructively amended the indictment, but it agreed that he was sentenced for both a crime and a lesser included crime. Here Phillips, who is a 33-year old man went on line pretending to be a 17 or 18 year old girl on a social media website where he met a minor boy.

Published on: November 15, 2021

Property owner’s lawsuit against Sheriff in Alabama for property loss fails

by The Swartz Law Firm

Mr. Spencer sued Sheriff Jonathan Benison pursuant to 42 U.S.C §1983 claiming a violation of his Fifth Amendment rights against deprivation of property and liberty rights. He alleged that Benison ordered him to remove traffic cones and vehicles that were preventing Spencer’s neighbor from completing construction on an easement that Spencer alleged encroached on his property. Spencer claimed that by ordering him to remove these obstructions, the Sheriff deprived him of property without due process and that Benison conspired with others to take and use his property without due process or compensation.

Spencer’s dispute began after an entity called Belle Mere Properties purchased a parcel of real estate from Spencer which contained an easement of 25 feet on either side of the existing power line for the purpose of egress and ingress. Belle Mere then leased the property to a bingo hall. Soon after Spencer and Belle Mere began disputing over the boundaries of the easement when Belle Mere decided to expand a previously constructed roadway running through the easement. After Spencer made several calls to the police claiming that a bulldozer was trespassing, Benison responded to the scene and found that Spencer had placed cones and vehicles blocking construction which backed up traffic on U.S. Highway 11.

Published on: November 11, 2021

Today We Honor Our Veterans

by The Swartz Law Firm

Veterans Day is a day set aside to honor and give thanks to veterans who gave service to the protection and preservation of our great country. On this Veterans Day I would like to honor the service of two heroic veterans who served this country in World War II. Lt. Joseph Milton Swartz and Lt. Emil Kantor both served together in the U. S. 15^th Army Air Force, 460th Bomb Group from 1944 through 1945. The 460th was stationed on a hastily built air base known as Spinazzola in southern Italy with crude and makeshift living quarters for the servicemen. Pilot Emil Kantor and flight navigator Milton Swartz along with their crew flew the B-24 bomber “Liberator” on thirty-five sorties (missions) over Nazi German occupied territory. Their missions took them over the dangerous skies of Nazi occupied Europe, facing death form flak, enemy fights, and accidents. Each time these brave men entered their plane, they did not know what danger they faced, and always knew that like many of their fellow servicemen there was a chance they would not return home. Thankfully, they both did.

On one noteworthy mission flown on September 13, 1944, theirs was one of 20 planes from the 460^th that participated in bombing the I.G. Farben synthetic oil and rubber plant located in Oswiecim, Poland. What they did not know was this plant was located only a few miles from the Auschwitz concentration camp. A small cluster of bombs intended for the plant fell instead on the Auschwitz Camp, giving the detainees a temporary and false hope that the Allied bombers were there to destroy the camp.

Fortunately, stories of their heroism in their many missions over those dangerous skies has been preserved and beautifully told in the book, Emil’s Story – Memoir of a WW II Bomber Pilot written by Linda Audrey Kantor.

Published on: November 10, 2021

Lawsuit against a school board police officer for false arrest and involuntary commitment should not have been dismissed

by The Swartz Law Firm

Susan Khoury filed a lawsuit against the Miami Dade County School Board and Officer Williams, a school board police officer, for false arrest, excessive force, and First Amendment retaliation pursuant to 42 U.S.C. §1983. Williams had detained and committed her for an involuntary mental health examination under Florida’s Baker Act statute, Fla. Stat. §394.463 after Williams characterized her as being a danger to herself or others. Khoury also made a Monell claim against the school board. The district court granted summary judgment to as to all claims against the officer and the school board. In this opinion, the court of appeals reversed the district court’s dismissal against the police officer but upheld the dismissal as to the school board.

Her claims arose from an incident that began when Khoury, who lived across the street from a middle school baseball field in Miami Dade County, was using her phone to record cars she believed were illegally parked around the baseball field. Khoury had an argument with one of the drivers, who then called the police. Officer Williams arrived, and after advising the driver that Khoury had a First Amendment right to film, Khoury and Williams had an argument which led to Williams arresting and detainer Khoury pursuant to the Baker Act.

Published on: November 9, 2021

Conviction and life sentence for sex trafficking a minor and adults upheld as reasonable in light of the evidence

by The Swartz Law Firm

Williams appeals his conviction and sentence by a federal judge for the federal offense of sex trafficking involving a minor, and two adults. The evidence presented at his trial showed Williams used physical abuse and emotional manipulation to force vulnerable young women to work for him as prostitutes. The evidence was graphic because the women who worked for Williams described Williams’ violent behavior and punishments. He was sentenced to five terms of life imprisonment and ordered to pay restitution to his victims. In his appeal he raised three issues.