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In U.S. v. Yates the defendant and his crew were on a commercial fishing trip into the Gulf of Mexico when he was stopped by a federally deputized Florida Fish and Wildlife officer on patrol for fishery violations and compliance. After boarding the defendant’s boat, he noticed red grouper that appeared to be less than the 20-inch minimum size limit. He measured them with mouths closed and determined there were 72 grouper that clearly measured less than 20 inches. He separated the undersized one into crates, issued a citation, and instructed the defendant not to disturb the crates. He told him that the National Marine Fisheries Service would seize them upon the vessel’s return to port. Instead of following the instructions, the captain had his crew throw the undersized fish overboard and replaced them with other larger grouper. When the vessel returned to port in Florida and the officer measured the fish, he suspected they were not the same fish he previously measured. The switch was discovered after a crewmember was interviewed. The captain was charged and convicted of knowingly disposing of undersized fish in order to prevent the government from taking custody and control in violation of 18 U.S.C. §2232(a), and was convicted of destroying a “tangible object with the intent to impede obstruct or influence the government’s investigation into harvesting undersized grouper” in violation of 18 U.S.C. §1519.

Insufficient evidence argument rejected.

The defendant argued on appeal there was insufficient evidence that the fish thrown overboard were undersized because the officer failed to measure the grouper with mouths open and instead measured them with mouths closed. He argued there is speculation as to whether the fish would have been undersized if measured with mouths opened. The court rejected this argument finding that there was conflicting testimony as to whether this would have made any difference, and the jury was free to weigh and decide the issue. Furthermore, the defendant’s directing the crew to throw fish overboard together with his admission that he had at least a few undersized fish on his boat when the officer first measured them, was evidence he believed the fish were undersized.

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The defendant in U.S. v Fries was convicted of transferring a firearm to an out-of-state resident which is a violation of federal criminal laws when neither the seller nor the buyer was a licensed firearms dealer. 18 U.S.C. 922(a)(5) make a crime for a seller to sell a weapon to a nonresident, if neither the seller or the buyer are licensed dealers. Fries was arrested when ATF agent, posing as a Georgia resident, purchased a gun from Fries, non-licensed seller, at a Gun and Knife show in Tallahassee, Florida. Fries was convicted following a trial, but at the close of the government’s case his attorney did not file a motion for judgment of acquittal, nor did he filed one at the close of all the evidence, or in a post-trial motion. Fries filed a notice of appeal, and subsequently his attorney filed a motion to withdraw and an Anders brief, arguing that the record revealed no arguable issue of merit. The court of appeals denied the motion and ordered briefing on an issue relevant to this decision: Whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.

For this reason, the issue raised by the defendant on appeal was the sufficiency of the evidence. To convict, the government must offer evidence on these four elements: 1) the defendant was not a licensed firearms dealer, importer, manufacturer or collector; 2) the defendant sold, transferred, traded or gave to another person; 3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and 4) the defendant knew or had reasonable cause to believe that the person receiving the firearm did not reside in the state of the defendant’s residence. Because Fries did not move for a judgment of acquittal or preserve the argument, the court of appeals held that it is required to find that either the record is devoid of evidence of an essential element of the crime, or “that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.”

After combing the entire record, the court of appeals found no evidence that the person the defendant sold the firearm to did not possess a firearms license. The government argued the jury could find evidence the buyer was unlicensed from testimony between the defendant and various ATF agents in which Fries apparently demonstrated knowledge that it would be illegal to sell to a non-resident unless that person held a license. The court of appeals rejected this argument. Because Fries lacked personal knowledge of the buyers licensure status, the defendant’s subjective believe he was executing a transaction with an unlicensed person does not bear on the objective state of affairs as they existed at the time of the sale. There was no evidence that the undercover buyer was in fact an unlicensed buyer at the time of the sale. The court held the lack of evidence was not harmless error. Though there was no contemporaneous objection or motion at trial, permitting the conviction to stand where government failed to offer any evidence of an essential element of the crime, “would do great damage to the considerations of due process that the serve as a fundamental bulwark of our criminal justice system.”

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In U.S. v. Curbelo, the defendant was convicted following a trial of conspiracy to manufacture and possess marijuana with intent to distribute in connection with his involvement with an indoor marijuana growing operation in Naples, Florida. He was specifically charged with conspiracy to manufacture and possess with intent to distribute 1,000 or more marijuana plants and conspiracy to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. §§841 and 846. The defendant was hired initially hired to work as a carpenter for Diaz, who offered the defendant the opportunity to work as a caretaker for one of his grow houses and received a percentage of the profit to supervise the house. Later, Curbelo became more involved as Diaz gave him opportunities to work on other grow houses. Eventually the DEA placed GPS tracking devices on vehicles used by Diaz but did not obtain a warrant. The DEA also obtained a court order to intercept Diaz’s cellular phone conversations and intercepted conversations with the Defendant and a coconspirator in which they discussed aspects of the marijuana growing operation.

At trial the government played recordings of the wiretaps on Diaz’s phone, which were in Spanish, so the government provided the jury with an English translation that had been prepared by translator but the government never identified who prepared the transcript. Instead the government used Diaz who was fluent in Spanish and English to establish the accuracy of the transcripts. The defendant objected at trial to the admission of the translations of the recordings without putting on the witness who made the translations. The defendant objected to the admission as a violation of the Sixth Amendment Confrontation Clause because he could not cross examine the person who translated the records. In resolving this issue the court of appeals had to decide if the transcripts contain statements that are testimonial and hearsay. It found the conversations themselves were not hearsay because Diaz testified ant the defendant’s statements may be admitted against him. Furthermore, the transcripts did not contain a certification by the translator as to the accuracy of the translations. The government merely presented the translations themselves and do not contain any hearsay statement by the translator. There were no express assertions by the translator that could be true or false, only an implicit statement that the translation was accurate. Diaz, who was a participant in the conversations, testified at the trial that based on his independent review of the transcripts and the recordings the English translations were accurate. The only statement the jury heard regarding the accuracy of the transcripts came from Diaz. Therefore, even if the translator made a testimonial statement out of court, she did not become a witness against the Defendant. Diaz testified based on his own judgment, that the translations were accurate.

GPS suppression issue waived.

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From the 11th judicial circuit in Miami, Florida, in U.S. v. Vernon, the defendants were convicted of health care fraud following a trial. The charges involved dispensing factor medication, a blood clotting medication used to treat hemophilia. Defendant Vernon ran a specialty pharmacy that dispensed prescriptions for factor medication, an expensive medication that earned big profits as a result of the high Medicare reimbursement rate. In order to gain more factor medication business the business would pay individuals and businesses large percentages of its profit for referring their hemophiliac clients to the defendant’s company for filling prescriptions. Other defendants were paid kickbacks of up to 45 % of the profit earned from filling the prescriptions for clients. Another defendant, Waters, had several family members who were hemophiliacs and he moved these patients from the competitor to the Vernon’s pharmacy after he was hired by the company as a full time employee and he signed a contract as a hemophilia sales associate earning $400,000 in 2007, $700,000 in 2008, $325,000 in 2009, together with many fringe benefits. In exchange for these payments Waters ensured that his hemophiliac clients filled their medication through defendants’ company. He did not recruit new patients as his contract required. The jury found Vernon guilty of violating the anti-kickback statute, which criminalizes the offering or paying of kickbacks. Following the verdict the court set aside the guilty verdict and granting his Rule 29 motion. The government appealed. Two defendants appealed the denial of rule 29 motions.

The 11th Circuit reversed the district court’s order granting Vernon’s Rule 29 motion because it found sufficient evidence Vernon violated the Anti-Kickback statute,42 U.S.C. 1320a-7b(b)(2)(A) by knowingly and willfully paying money to Brill, who had “clients” that were also hemophilia patients. The evidence showed that the purported employee relationship between Waters and the Vernon’s company was sham. Waters worked at home rarely visiting the office, received no oversight or direction from the pharmacy, spent most of this time in casinos or performing other non-work related tasks. Another defendant, Brill, referred to Vernon’s pharmacy to fill their prescriptions in exchange for payments. The court rejected Vernon’s argument that the language “to induce” Brill “to refer an individual” to Vernon’s pharmacy was a term of art that means a request by a physician for an item or service. It found it included referring by any individual and could apply to Brill.

Vernon also argued the jury instruction misstated the anti-kickback law because it allowed the jury to convict him without finding the required nexus between the improper referrals and Medicare coverage that is without finding that Jeff Vernon and the pharmacy paid kickbacks for the referral of patients whose factor medication prescriptions were covered by Medicaid. He argued that the jury instructions allowed convictions so long as the referred patients received Medicaid benefits for some health care services, even services unrelated to the illegal referrals. The 11th Circuit found no error because any doubt left by the instruction was cured by the indictment itself which set forth the required nexus between federal health care benefits and the services provided to patients.

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In U.S. v. Charles the Eleventh Circuit found that the out-of-court statements by an interpreter to a Custom’s officer interrogating the defendant were testimonial and their admission was in violation of Sixth Amendment right to confront the interpreter as required by the Supreme Court’s decision in Crawford v. Washington. The defendant was convicted of knowingly using a fraudulent travel document, in violation of 18 U.S.C. 1546(a). When Ms. Charles entered the United States, she presented to a Customs and Border Protection officer her Haitian passport and a Form I-512 which provides authorization for persons to travel in an out of the United States while they are in the process of gaining legal immigration status. An inspection of the I-512 revealed that the names on the computer database did not match the name on the document in her possession. She was interrogated by a CBP officer who did not speak Creole but who used an over-the-phone interpreter service under contract with the Department of Homeland Security to communicate with the defendant and conduct his interrogation. The interpreter interpreted from English to Creole and then from Creole to English. At the trial the government did not call the interpreter to testify but presented the testimony of the CBP officer who conducted the interrogation through an interpreter and who told the jury what Charles said through the interpreter. The officer testified that she said that when she started reading the document and noticed the document was illegal because it did not fit her profile.

On appeal the defendant argued that her Confrontation Clause rights were violated by the admission of the CBP officer’s in-court testimony about the interpreter’s out-of-court statements without an opportunity to cross examine the interpreter. The defendant did not have a chance to cross examine the interpreter regarding the meaning any of Charles’ statements or the specific words she used. When the interpreter told the CBP officer that the defendant knew the form was illegal, the defendant could not cross examination about what actual words Charles used in Creole and whether the words she used could have had some other meaning.

The 11th Circuit reviewed this for plain error because the defendant did not object during the trial to the CBP officer’s testimony was a violation of the 6th Amendment. Under plain error standard the court of appeals cannot correct an error not raised at trial unless: (1) there was error, (2) the error was plain, (3) it affected the defendant’s substantial rights, and (4) the court determines the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Analyzing the statements by the interpreter in light of the Supreme Court’s decision in Crawford v. Washington, the court determined that the interpreter’s statements were testimonial. The 11th Circuit determined that the defendant had a Sixth Amendment right to confront the interpreter who was the out of court declarant whose testimony the government sought to introduce through the CBP officer. However, the court of appeals found no plain error because there was no binding circuit precedent or Supreme Court precedent clearly articulating this rule, that the declarant of the statements testified to by the CBP officer is the language interpreter.

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In Castillo v. State of Florida, the defendant filed a collateral challenge to her Florida state court conviction of attempted robbery that took place on Miami Beach. Castillo claimed she received ineffective assistance of counsel and was deprived of her Sixth Amendment right to counsel. In this three-day trial, one of the jurors was absent from the second day of trial, but the juror was not replaced by an alternate. Instead the juror returned the third day to participate in the deliberations and voted with the other jurors to convict Castillo. Castillo’s counsel did not object. While the parties agreed that counsel’s failure to notice and object to the juror’s deliberating after being absent during one trial day was deficient performance, the issue was whether the deficient performance by counsel was prejudicial under of Strickland v. Washington.

The 11th Circuit found no actual prejudice resulted from counsel’s failure to object because all of the testimony presented during the second day, the day the juror missed, was evidence of guilt. Nothing the juror missed would have helped the defendant because the testimony was evidence of guilt. All the evidence presented on all three days was incriminating. Finding that there was no reasonable probability of an acquittal if all 6 jurors heard all testimony presented on the second day, rather than just 5 of them. The Defendant argued however that prejudice should be presumed pursuant to the standard laid out in the Supreme Court’s decision in U. S. v. Cronic. The 11th Circuit found that none of the three Cronic factors applied. First, the court found that the defendant’s counsel was present throughout every moment of the trial and there is no suggestion he did not assist the defendant at any critical stage. Second, the court found the record showed defendant’s counsel did subject the prosecution’s case to a meaningful adversarial testing throughout the trial.

The court rejected the trial court’s finding that the defendant’s attorney’s failure to object to a constitutional or otherwise important error can warrant a presumption of prejudice and therefore result in a reversal regardless of whether there is real prejudice. The Eleventh Circuit rejected this “big error” exception to the actual prejudice requirement. Here, the attorney was present throughout the trial and contested the prosecution’s case. Any errors the attorney committed must be judged under the Strickland standard, which requires a showing of actual prejudice. The district court incorrectly relied on language in the 11th Circuit’s decision in Harding, where the defendant was effectively left with no representation during trial because of a disagreement with his court-appointed lawyer. The district court seized on language in Harding that “silence of counsel may constitute denial of counsel at a critical stage of trial and thus constitute error even without a showing of prejudice.” The district court understood this language to support the defendant’s position in that an attorney’s failure to object to a single error, if the error is big enough, can constitute an extraordinary circumstance justifying a presumption under Cronic. While the language was applicable to the facts in Harding, where the defense counsel stood by silently while the trail judge directed a verdict against his client in a criminal case. Here the failure to object to a juror deliberating, who missed hearing some of the prosecution’s evidence, pales in comparison to the facts of Harding.

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In U.S. v. Scrushy, the Defendant and his codefendant Siegelman, the former Governor of Alabama, were found guilty following a trial of federal criminal crime of bribery and for the honest services mail fraud statute, 18 U.S.C. 1341 and 1346. The bribery conviction arose from allegations that Scrushy gave $500,000 to his codefendant Siegelman, in exchange for his appointment to a statewide board in Alabama and that Scrushy used his seat on the board to further the interests of the Health South Corporation, a hospital corporation in Alabama of which Scrushy was Chief Executive officer. These white collar criminal convictions had previously been affirmed by the 11th Circuit but the Supreme Court granted a writ of certiorari following its decision in Skilling v. United States, where the Supreme Court held that honest services mail fraud statutes were only intended to reach schemes involving bribery or kickbacks. On remand honest services mail fraud counts were reversed in light of Skilling. Following Scrushy’s resentencing, he took this appeal raising the denial of motions for new trial based trial, pursuant to Rule 33(b)(1) based on newly discovered evidence and the denial of a motion to recuse the trial court judge.

The Defendant had moved to recuse the trial judge after it was learned that emails from jurors were sent to the Marshals who brought them to the attention of the trial judge. The judge asked the Marshals to investigate, which then turned to the U.S. Attorney who enlisted the U.S. Postal Inspection Service. The Postal service concluded the emails were not authentic. The Defendant had not been advised about any of this. The Defendant argued that the trial judge should have stepped down because he met exparte with the Marshals about a factual issue and that he heard the Postal Inspectors express their belief the emails were not authentic. By acquiring personal knowledge of a disputed evidentiary fact, he could be a material witness on that issue. The 11th Circuit rejected these arguments, mainly because the judge actually ruled in the Defendant’s favor by finding the emails were in fact authentic and there could be no doubt that the judge was impartial.

Next, the Defendant claimed he was subjected to selective prosecution in violation of the Fifth Amendment right to equal protection. Specifically he claimed that his prosecution was selective because other similarly situated people made campaign donations and received gubernatorial appointments but were not prosecuted. The 11th Circuit denied this claim because: (1) a claim of selective prosecution is not the proper subject of a Rule 33(b)(1) motion for new trial and (2) the motion should have been raised as a pretrial motion.

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In U.S. v Bane, the defendant was convicted of committing federal Medicare fraud and raised three challenges on appeal: 1) his sentencing guidelines calculation, 2) the district court’s calculation of his restitution amount, and 3) the fine. Bane owned companies that provided Medicare patients with durable medical equipment including portable oxygen. Medicare only reimburses the equipment provider if the provider ensures the oxygen is medically necessary and requires that the provider send the patients to an independent laboratory for a “pulse oximetry” test, a non-evasive means of testing oxygen levels in blood. Instead of referring the patients to an independent lab, the defendant had the testing done at his own lab and directed employees to falsely represent they used independent labs and billed as if independent labs performed the exams.

The district court calculated the guidelines loss amount based on the amount of money the defendant billed Medicare for the oxygen equipment, which gave the defendant a 20-level increase because the amount billed exceeded $ 7 million. But the district court found that the oxygen was medically necessary for 80-90% of the patients, and the defendant argued that the dollar amount should be reduced accordingly. The court of appeals disagreed. Applying the special rule in guidelines Application Note 3(F)(v)(III), which states that “in a case involving a scheme in which…goods for which regulatory approval by a government agency was required but not obtained…loss shall include the amount paid for the property, services, or goods transferred…with no credit provided for the value of those items or services,” the majority held that the defendant should not receive credit for the value of oxygen given to patients even if the oxygen was medically necessary.

The court found the sophisticated enhancement was correctly imposed. The court rejected the defendant’s argument that his offense was not sophisticated because it involved a simple misstatement that an independent lab conducted the pulse oximetry test in order to qualify for Medicare reimbursement. The court found the offense met the guidelines commentary the defined sophisticated as “especially complex or especially intricate conduct pertaining to the execution or concealment of an offense.” The defendant created multiple corporations that appeared to be independent labs, created a paper trail to mask the fraud, and involved repetitive conduct designed to execute the fraud and evade detection.

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In U.S. v. Valerio the defendant became the target of a federal drug investigation when he was spotted at a hydroponic gardening equipment store by DEA agents acting suspiciously. After the defendant drove away, the agent followed the defendant’s truck and concluded he was acting nervous about being followed. Two weeks later the agents spotted the defendant again at the store and followed him to a Deerfield Beach warehouse where he entered one of the bays. The agents believed the warehouse was in a location suitable for a marijuana grow house operation. Agents later brought out a K-9 dog to sniff the doors but it did not alert to the bay that the defendant had entered. After coming up short the law enforcement decided to send agents to his house to knock on his door and ask to speak with him. They waited for the defendant to emerge from his house. Instead of approaching him to ask questions, they blocked his truck has he tried to drive away from his driveway. One of the agents wearing a bullet proof vest bearing the words “police” drew his firearm and ordered him out of the truck. They conducted a full pat-down search and escorted him to the front of his truck. When asked if he operated grow house he admitted to operating one inside a bay at the warehouse.

The circumstances surrounding the stop and seizure of the defendant did not fall within the Fourth Amendment exception pursuant to Terry v. Ohio. The court found the timing and circumstances surrounding the officer’s seizure of the defendant placed it well outside the Terry exception to probable cause requirement. Given the delay and absence of a contemporaneous observations of the defendant that required swift law enforcement action, the court found there was no activity that would support the underlying purpose behind Terry exception to the probable cause requirement. While there may have been suspicious activity at the time he was observed a week earlier, the passage of time allowed the police to conduct conventional criminal investigation. They could have continued to conduct surveillance of the warehouse or his residence, verify his connection to the warehouse through utility records, or conduct a voluntary encounter with him. None of these investigative tactic would have been a problem under the Fourth Amendment prohibition against warrantless search and seizure. The opportunity to Terry stop is only “justified by and limited to the exigent circumstances of the moment” and cannot be used later after the exigency has expired. “The exception established in Terry to the general Fourth Amendment requirement that all seizures be supported by probable cause is justified by the exigencies associated with law enforcement dealing with the rapid unfolding and often dangerous situations on city streets.” There was no exigency when the defendant exited his house and entered his truck and there was no probable cause to believe he was involved in any illegal activity when he was seized. Statements made by the defendant and evidence obtained as a result of the illegal seizure should have been suppressed.

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In U.S. v. Rojas, the defendant and his wife were indicted and convicted of marriage fraud, in violations of 8 U.S.C. § 1325(c). On this appeal, Rojas challenged his conviction arguing that the indictment fell outside the five-year statute of limitations. Specifically, he argued that statute of limitations for his offense began to run on the date of his marriage. The court of appeals agreed and concluded that the date that the crime of marriage fraud is complete is the date of the marriage. For this reason the indictment was time barred.

After the defendants were married, Rojas’ wife sent U. S. Immigration and Customs Enforcement (I.C.E.) an application to apply for Permanent Residence Status. The wife was an Argentinian citizen who had overstayed her visa. Rojas was a U.S. citizen. The application included a copy of their marriage certificate showing they were married April 23, 2007. During the interview conducted by immigration, certain discrepancies arose in their documentation and their answers. When the investigators confronted them with suspicions of marriage fraud they both admitted that the marriage was entered into to help the wife obtain her U.S. residency. The government indicted the defendants on April 27, 2012, and a motion to dismiss the indictment was filed in the district court.

Under § 1325(c), marriage fraud is committed by any individual that enters a marriage for the purpose of evading a provision of the immigration laws. The statute of limitations provision states that no person shall be prosecuted for any offense unless the indictment is returned within five years after the offense is committed. The statute of limitations begins to run when the crime is complete. The 11th Circuit’s interpretation of the language of the marriage fraud statute elements showed that the elements require that 1) the defendant enter into the marriage and 2) for the purpose of evading any provision of the immigration law. The court found the defendants did in fact enter into the marriage for that purpose. While the application for immigration benefits may serve as the circumstantial evidence of the unlawful purpose of the marriage, the plain language of the marriage fraud statute does not require a defendant to take the additional step for filing for immigration benefits in order for the crime to be complete. The 11th Circuit rejected the government’s arguments that the crime was not complete and the statute of limitations did not begin to run until the defendants were interviewed by immigration officials on August 24 2009, at which time they became aware of the fraud. The 11th Circuit disagreed with the government’s argument that the offense was a continuing crime. A continuing crime continues to be perpetrated and extends the statute of limitations. The 11th Circuit concluded that offenses should not be considered continuing offenses unless the specific language compels that conclusion. The fact that the offense uses the explicit language “enter into” means the offense occurs on the date the marriage takes place.

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