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In U.S.v. Kuhlman, the defendant was a doctor of chiropractic medicine who owned and operated clinics in the Atlanta area. For five years he submitted $2,944,883 in fraudulent billings to Medicare for fictitious medical services. He did this by submitting HCFA forms to insurance companies indicating that medical procedures were performed by doctors in his clinic though the procedures were never provided. His sentencing guidelines range was 57 to 71 months imprisonment. As part of the plea agreement, the government recommended a variance sentence of 36 months. A few days prior to sentencing, the defendant paid the entire restitution amount of $2,944,883 in full, which impressed the sentencing judge enough to comment that Kuhlman was the first defendant the judge could recall who made such a large restitution payment prior to sentencing. The district court decided to continue the sentencing hearing for six months to allow the defendant extra time to pay off his fine and have the defendant perform public service. The district court expressed a desire to see how the defendant would handle the postponement time before sentencing, believing it would provide a more complete picture of the defendant. The defendant did not disappoint the judge. He logged 391 hours of community service, an average of two hours per day. He visited various medical nursing and chiropractic schools to give presentations on Medicare fraud. He provided 18 days of free chiropractic services at homeless shelters across Atlanta and painted a gym at an elementary school. At the second sentencing hearing the sentencing court imposed a sentence of probation, citing his community service work during the continuance, his restitution, and the rising cost of incarceration. The sentence was a downward variance of 20 levels.

The 11th Circuit found the sentence was substantively unreasonable because “he stole $3 million and did not receive so much as a slap on the wrist-it was more like a soft pat.” The time served sentence from a downward variance from 57 months failed to achieve an important goal of sentencing in a white collar crime prosecution, the need for general deterrence. The court gave its reason why deterrence was so important in health care fraud cases. It explained that insurance companies rely on the honesty and the integrity of medical practitioners in billing for their services. For that reason, deterrence is an important factor in the “sentencing calculus” because health care fraud is so rampant that the government lacks the resources to reach it all. The court found that one of the government’s primary objectives in obtaining a conviction in a health fraud prosecution is to send a message. While the court did not imply that probation could never be an option in a white-collar fraud case, in view of the totality of the circumstances, the nature of the offense and the extent of the variance, it was an unreasonable sentence here. Though the district court cited several §3553(a) factors at the sentencing hearing, the sentence did not reflect the seriousness of the crime, it did not promote respect for the law, provide just punishment or adequately deter other similarly inclined health care providers. Furthermore, 11th Circuit made a point of stating that the sentencing guidelines do not give a special sentencing discount for economic or social status as sentences given to the defendant are unavailable to defendants of lesser means.

Read more about Medicare Fraud

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In U.S. v. Gandy the defendant was convicted of possession of a firearm and sentenced to 180 months. His sentence had been enhanced under the Armed Career Criminal Act (ACCA) because he had been convicted of at least three prior violent felonies. In challenging the sentence he argued that the government failed to meet its burden of establishing that his convictions labeled aggravated assault on a law enforcement officer and the burglary of a structure were qualifying offenses using documents approved by the Supreme Court in Shepard v. U.S. He argued that the information and certified judgment of conviction cited only a sentence enhancement provision of the Florida Statutes and did not cite the substantive provision of the aggravated assault statute, the government has not sufficiently proven that his conviction was for that particular crime. The 11th Circuit disagreed and found the district court correctly concluded that the omission of an express citation to the Fla. Stat. § 784.021 (the substantive provision creating the crime of aggravated assault) was not fatal because the information and certified judgment establish that the defendant had pleaded guilty to aggravated assault on a law enforcement officer, the violent felony under ACCA. The certified judgment indicated that the defendant had pleaded nolo contendere to aggravate assault of a law enforcement officer which is the same offense that was charged in the information, making it clear he was convicted for aggravated assault. Furthermore, the court found the defendant had another conviction for simple vehicle flight that was a predicate conviction under the ACCA. The 11th Circuit recently held in U.S. v. Petite that a simple vehicle flight conviction under Florida state law qualifies as a violent felony under the residual clause of the ACCA (§924(e)).

The only argument that was not addressed in Petite, which the defendant raised here, was the unconstitutionally of the residual clause of the ACCA. The 11th Circuit rejected the vagueness argument on the grounds that the Supreme Court already determined that the residual clause, although at times is “difficult for the courts to implement, falls within congressional power to enact and constitutes an intelligible principle that provides guidance that allows a person to conform his or her conduct to the law.” (Though Judge Scalia’s dissent suggested the statute is unconstitutional.) The 11th Circuit cited six other circuits that have upheld the constitutionality of the ACCA residual clause and no circuit has gone the other way.

The defendant also challenged his sentence on the grounds that the magistrate judge who accepted the plea erred in advising him that the maximum penalty would be 10 years in prison. The 11th Circuit rejected the claim because the district court noted that he entered the plea with the incorrect understanding, the district court explained that it was an error and correctly advised him of the mandatory minimum sentence of 15 years. He gave the defendant a chance to back out of the plea and he said he did not wish to withdraw the plea.

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In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) (“safety valve”) provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon “in connection with the offense.” Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.

In this case of first impression in the 11th Circuit the court focused on the interpretation of the language “in connection with the offense.” No definition or explanation was provided in the guidelines or the statutes. The court rejected the government’s argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if “a weapon was possessed” and not “if a weapon was possessed in connection with the offense.” A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a “difficult task” to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a “connection” with the drug offense depended on whether the firearm “facilitated or had the potential to facilitate” the drug offense. Under the facts of Carrillo’s case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction “greased the wheels” for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.

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The defendant in U.S. v. Hoffman was sentenced to life for his conviction of conspiracy to distribute of 50 or more grams of methamphetamines in violation of 21 U.S.C. §§ 841(a)(1), 846, and with possession with intent to distribute methamphetamines. Prior to trial on these federal crimes the government filed a notice pursuant to 21 U.S.C. §851 that it intended to seek enhance punishment base on a prior Florida state drug convictions for conspiracy to traffic in cocaine and possession of cocaine. His priors were committed at 17, and at the time, he was sentenced as a youthful offender. The prior Florida felony drug convictions increased the minimum from 10 years to life imprisonment and at sentencing the district court imposed a life sentence. On appeal, the defendant challenged the life sentence under the Eighth Amendment arguing the sentence was cruel and unusual punishment because the basis for the punishment were the two conviction for offenses committed while the defendant was a juvenile.

Defendant relied on the Supreme Court decision in Roper v. Simmons where the court held that the 8th and 14th amendments forbid imposing the death penalty on offenders who were under the age of 18 when their crimes were committed. The 11th Circuit found Roper did not apply and distinguished it on these grounds:

1. Roper involved a death sentence and not a life imprisonment.

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In U.S. v. Izuriet, the defendants owned a company that imported cheese, butter, and bread from Central America to the U.S. The Defendants were charged with conspiracy to unlawfully import adulterated foodstuff in violation of 18 U.S.C. § 371 and §545, with failure to export or destroy under FDA supervision five bad shipments and with failing to hold and make available one shipment for Customs examination. The Defendants appealed their conviction on a variety of grounds, but at oral argument the panel raised the question of whether the indictment sufficiently charged a federal crime of unlawful importation in violation of 18 U.S.C. § 545. The relevant language of §545 makes it a crime to fraudulently or knowingly import…into the United States, any merchandise….knowing the same to have been imported…into the United States contrary to law. The question raised by the court was what law did the indictment allege was violated such that it was contrary to law and therefor a violation of 18 U.S.C. §545. The charge was based on factual allegations that the defendants violated customs regulations by failing to “deliver, export, and destroy” certain imported goods found to be adulterated” as required by F.D.A. regulations. The Court found that the failure to comply with the regulation normally gives rise to a civil remedy for liquidated damages totaling three times the value of the goods.

The opinion discusses a split in the circuits regarding an interpretation of the language “contrary to law” in §545. The 9th Circuit narrowly interprets §545 to mean it can only criminalize a regulation where the regulation itself is a crime. The 4th Circuit has a more expansive interpretation of §545 and criminalizes any importation regulation that has “the force and effect of law.” The 11th Circuit leaned in favor of the 4th Circuit’s interpretation, which does not require the regulation to be a criminal offense, but the 11th Circuit had concerns about converting a statute that normally has civil remedies into a criminal law.

The regulations cover the conditions under which imported goods may be delivered out of Customs’ custody pending admission as well as the procedures by which goods may be recalled and examined. Though the regulation was issued under a statute that lays out dozens of acts subject to criminal penalties, the statute does not specify a crime for the conduct here which was the simple failure to hold, redeliver, export, and/or destroy the food. The 11th Circuit found the regulation establishes a contractual obligation between Customs and the importers regarding temporary release and storage of the imported goods, along with an agreed-upon liquidated damages of three-times the value of the merchandise for non-compliance. The 11th Circuit viewed the regulation as strictly civil. The court found the Rule of Lenity was applicable because it found §545 to be “grievously ambiguous” with respect to the effect of criminalizing the regulation and the conduct here. The court vacated the substantive convictions because it found that §545 did not charge a crime, and the court vacated the conspiracy count because the unlawful acts charged as the object of the conspiracy are not criminal in nature. “The indictment was sufficiently unclear as to whether any crime was charged such that the average person could easily read [the conspiracy count] as actually charging only a conspiracy to commit non-criminal acts.”

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In U.S v. Davis the defendant was charged in a 16-count indictment with various offenses arising out seven armed robberies. During the jury selection one of the prospective jurors, a dance instructor, announced she had a problem serving because she was paid by the hour and would not be paid during the trial. Another prospective juror said her English was poor. Both were seated as jurors anyway. The 12 jurors were empaneled, but there were no venire members remaining to select as alternates, and the trial began without alternates. After the trial began, the defendant announced that he was dissatisfied with his court-appointed counsel and insisted on representing himself. The defendant also announced to the court that he wanted to go back to his cell for the remainder of the trial and turned down an offer that would have allowed him to monitor the proceedings from his cell. The trial continued under those conditions, with the defendant representing himself from his cell. When the trial court took an early lunch break to review the issue of the defendant’s absence from the trial, the dance instructor approached the trial judge and persisted about the loss of income she faced and the affect this would have on her finances. The non-English speaker also approached and informed the trial court and informed the court that she did not understand everything. When the defendant was asked if he would agree to go with less than twelve he refused. Because the opening statements had been given, the trial judge decided he could not ask the clerk to send up more prospective jurors. The court found it necessary to dismiss the two jurors. The defendant advised the court that he did not agree to a jury trial of less than twelve jurors. The trial judge decided the only alternative was a mistrial. Defendant’s standby counsel moved for to dismiss under Double Jeopardy because he argued there was no manifest necessity. The district court denied the motion and the defendant took an interlocutory appeal.

The issue in this appeal was whether a retrial was prohibited under the Fifth Amendment of the U.S. constitution. The “Double Jeapardy Clause” states that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Jeopardy attaches when the jury is empaneled and sworn and subject to limited exceptions is entitled to have his case decided by that jury. One of those exceptions applies when the mistrial was caused by “manifest necessity,” which means “the ends of public justice would otherwise have been defeated by continuing the trial.”

The 11th Circuit found no Double Jeopardy violation caused by the trial court declaring a mistrial. Rule 23(b) required a jury be composed of 12 persons and proceeding with less than 12 requires stipulation by the parties. The defendant objected to proceeding with a jury of less than 12. The court found that dismissal of the juror with poor understanding of English was manifest necessity. While she showed sufficient language proficiency during voir dire, she brought her language difficulty to the trial court’s attention after the trial started. Under those circumstances dismissing her as a juror became a matter of manifest necessity. Davis’s position was against a jury of less than 12 and his position was for a trial with the original 12. Because that was impossible due to the language difficulty of the juror, the mistrial was the only alternative.

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The defendant in U.S. v. Darden was charged with obstructing commerce by robbery and brandishing a firearm in connection with two robberies. In the first underlying incident, an armed robbery of a Tampa, Florida convenience store, the gunman fled without apprehension. In the second incident Darden was shot by the pursuing store clerk. In the second incident Darden was apprehended and admitted to the robbery. Charged with both robberies, Darden went to trial placing the defense counsel in the position of having to vigorously defend against both robbery charges or concede guilt as the second robbery to save credibility in defending Darden against the first robbery. Apparently without consulting Darden, his counsel chose the latter. At trial, Darden’s attorney conceded the evidence was enough to convict of the second robbery, but not enough for a guilty verdict on the first robbery. The attorney argued that by charging Darden with both robberies, the government was trying to “buy a verdict and get one free.”

After his convictions were affirmed on appeal, Darden brought a 2255 collateral challenge claiming ineffective assistance of counsel arguing that under the Supreme Court’s decision in U.S. v. Cronic, the decision to concede guilt on one of the two charges without consulting his client was presumptively prejudicial. In Cronic the Supreme Court held that if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” prejudice is presumed, making unnecessary the 2-step analysis in Strickland v. Washington, which requires that the defendant show 1) deficient performance by counsel and 2) the deficiency caused substantial prejudice to the case.

The issue facing the 11th Circuit was to determine whether the defense counsel failed entirely to subject the government’s case to meaningful adversarial testing. In other words, whether to analyze Darden’s ineffective assistance claim under Strickland or under Cronic. The 11th Circuit held that Cronic did not apply and Darden would have to show he suffered substantial prejudice by his counsel’s failure to consult with him about the trial strategy.

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In U.S. v. Gibson, the defendants were convicted of conspiracy to possess with intent to distribute cocaine and cocaine base and with possession with intent to distribute cocaine and cocaine base. Defendant Burton was charged with a the federals crime when cocaine was found in the pickup truck he was driving. Federal Agents suspected that codefendant Gibson, who was a frequent driver of Burton’s truck, had been using it for drug trafficking. The agents saw Gibson driving the truck and saw it parked in front of Gibson’s. Burton was the registered owner, however. While the truck was parked in front of Gibson’s house, the agents installed a tracking device on the undercarriage of the truck without a warrant. They tracked its movement for the next month. At one point, while it was moving between Tallahassee and Ocala, the agents grew suspicious that it was carrying drugs and they had a sheriff deputy make a traffic stop. Burton was driving, and he was arrested when two kilograms of cocaine were found following a consensual search. Burton filed a motion to suppress the evidence based on the warrantless installation of the tracking devise. The federal trial court found no Fourth Amendment violation. Gibson later filed a motion to suppress evidence based on the warrantless installation of the tracking device and a motion for reconsideration. He did not originally file the motion to suppress because he did not then know any facts upon which he would have standing to object to the placement of the tracking device or the stop of the vehicle. He alleged that the agent’s testimony that the truck was in his possession when the tracking device was installed and that Gibson was seen driving the vehicle on several occasions, gave him standing to contest the installation of the device on the truck. The district court ruled Gibson had no standing to contest the installation of the device and that he had no standing to object to the stop.

After the conviction, the U.S. Supreme Court decided U.S. v. Jones in 2012 which held that the installation of a GPS tracking device on a target’s vehicle and its use to monitor the vehicle’s movement constitutes a search. In light of the Jones decision, Gibson argued all evidence obtained from the tracking device on the truck should be suppressed because the installation and use of the device constituted a search without a warrant. He maintained he had standing to challenge the search based on an expectation of privacy in the truck because he had possession and control of the truck when the tracking device was installed. The 11th Circuit found that because Gibson paid the insurance and maintenance and he often used the car with Burton’s consent, he had a legitimate expectation of privacy in the vehicle and standing to challenge the installation of the tracking device while the vehicle was in his possession, but he had no standing to challenge the use of the tracking device to locate the truck when it was moving on public roads and he was neither the driver or the passenger. Because he had no possessory interest when it was stopped, he lacked standing.

No double jeopardy where a prior conspiracy conviction overlaps

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After a brief hiatus, please find this Miami’s defense attorney’s latest entry, summarizing a recent opinion from the 11th Judicial Circuit. The opinion touches on topics and practice areas relevant to the Swartz Law Firm’s scope of expertise, including sex offenses and internet crimes.

In U.S. v. Slaughter the defendant appealed his conviction for use of the internet to entice a minor to engage in sexual activity (18 U.S.C. §2422(b) and committing a felony involving a minor while being required to register as a sex offender (18 U.S.C. §2260A). Registered as a sex offender, he went on Craig’s list and responded to a post by a 14 year-old girl named Hanna seeking someone to buy alcohol for her and some friends. Hanna turned out to be an FBI agent. After a flurry of emails Slaughter began expressing an interest in a sexual encounter with the two girls and suggested they rent a hotel room. Knowing they were underage, he made plans to meet them at a specific hotel. On the arranged date, agents arrived at the hotel room and without an arrest warrant or a search warrant, they entered his room, tackled him, and told him they intended to search his room and car. Later, he was taken to the county sheriff’s office where he was read his rights pursuant to Miranda. He signed a waiver and admitted to trying to entice the girls to meet him at the hotel room by his emails.

Slaughter moved to suppress post-arrest statements made at the sheriff’s office following the warrantless entry into his hotel room. The 11th Circuit found the statements to be admissible even though the police had previously entered his hotel room illegally and arrested him. Additionally, the 11th Circuit found the facts similar to the Supreme Court decision in U.S. v. Harris where police illegally entered a defendant’s home and arrested him on probable cause he committed a murder and later at the police station he waived Miranda and gave a statement. The Supreme Court found the exclusionary rule does not apply to the statements. Here the police had probable cause to arrest Slaughter, his Miranda rights were read and he voluntarily gave his statement under these circumstances, though the earlier pre-Miranda statement was suppressed the post Miranda statement was not subject to the exclusionary rule.

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In U.S. v. Colon, the defendant, Christina Colon, pleaded guilty to the federal crime of distribution of crack cocaine and possession of a firearm in furtherance of a drug trafficking offense. The Pre-sentence Report calculated her range at 46- 57 months and the district court varied down to 36 months. Pursuant to the firearm count the court imposed a mandatory minimum term of 5 years to run consecutively to the drug count, for a total of 96 months. Following the sentence, the Sentencing Commission issued Amendment 706, which reduced the base offense levels for crack cocaine offense. Colon filed a motion pursuant to 18 U.S.C. § 3582 to reduce her sentence. The district court found she was eligible and reduced her sentence under the drug count from 36 to 27 months leaving her with a total sentence of 87 months. Colon filed a second motion to reduce her sentence after enactment of the Fair Sentencing Act and the subsequent guidelines amendments. Amendment 750 issued by the Sentencing Commission, retroactively reduced the base offense levels for crack cocaine offenses. The Commission also issued Amendment 759 which restricted a district court’s discretion to make the reduction below the minimum of the amended guideline range, unless the original sentence imposed had been below the guideline range because of a reduction based on the defendant’s substantial assistance.

Under the new amendments the range, Colon’s range would be 30 to 37 months. The district court did not reduce her sentence because her current sentence was 27 months and below the new guideline range. The district court found the new amendment prevented the court from reducing the range because the original variance was not based on substantial assistance.

Colon claims the district court erred in applying Amendment 759 because the Sentencing Commission’s amendment of that policy statement exceeded its authority under the Sentencing Reform Act. The 11th Circuit rejected Colon’s challenge that Amendment 759 violated the ex-post Facto Clause. The court found the Amendment did not increase the punishment assigned by law when the act to be punished occurred. Colon’s guideline range after those amendments was the same as it would have been without them.

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