White Collar Criminal Defense Lawyer Blog

Published on: November 9, 2012

The United States has no Constitutional authority to prosecute a drug violation under the Maritime Drug Law Enforcement Act for acts occurring in the territorial waters of another state

In U.S. v. Bellaizac-Hertado, the Eleventh Circuit held the Maritime Drug Law Enforcement Act was unconstitutional as applied to a boat found in Panamanian waters. While patrolling in waters of Panama, a Coast Guard boat observed a fishing vessel operating without lights a without a flag. It informed the Panamanian Navy, which pursued the vessel until the occupants abandoned the vessel and fled into the jungle. The abandoned boat had 760 kilograms of cocaine. Eventually the occupants were found and arrested by the Panamanian authorities. They were turned over to the U.S. by the Panamanian government, which consented to their prosecution in the United States. A grand jury in Miami, Florida, indicted the four defendants with conspiracy to possess with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States under 46 U.S.C. §70503(a). The defendants challenged the Miami federal court’s jurisdiction on the ground that the district court lacked jurisdiction and argued the Maritime Drug Law Enforcement Act was unconstitutional as applied to their conduct. The district court denied the motion because it found the defendants were operating a stateless vessel, and it found the Act was constitutional as applied as Congress and several courts had determined that drug trafficking was universally condemned by various nations.

The Maritime Drug Law Enforcement Act is an exercise of constitutional power by Congress under Article 1, section 8, clause 10 “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” The United States relies on the grant of power under the “Offense” clause as the source of power to proscribe the defendant’s drug trafficking in the territorial waters of Panama. The issue the Court faced was whether Congress has the power under the Offense Clause to proscribe drug trafficking in the territorial waters of another nation.

The Eleventh Circuit found that drug trafficking was not a violation of customary international law in 1789 at the time of the Constitution was written and is not a violation of customary international law today. Drug trafficking was not a matter of international concern in 1789 and was not a violation of customary international law. It found that it is not a violation of contemporary customary international law. Despite the widespread ratification of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, there are states that are parties to this agreement that have been designated by the President as “major drug transit or major illicit drug producing countries.” Therefore the failure of these states to enforce drug activity shows that drug trafficking is not yet considered a violation of customary international law. The failure of these countries to comply with their treaty obligations “suggests they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.” Drug trafficking is also treated differently in the international law arena than violations of other customary international laws such as international efforts to prevent or punish genocide. Drug trafficking is not considered a crime under customary international law.

Published on: October 5, 2012

Questioning the defendant during a Terry stop about a matter unrelated to the Terry stop did not violate the Fourth Amendment

by The Swartz Law Firm

In U.S. v. Griffin, a police officer in Jacksonville, Florida, responded to a call from a store about an attempted theft, he recognized strip mall as a location where there had been several burglaries and drug activity. Upon arriving at the store, the security guard told him that someone tried to steal some clothing and pointed to the direction the suspect went. The officer spotted a group of eight people, but only the defendant Griffin fit the description. He followed the defendant for a short time. When he called for the defendant to stop, the defendant continued to move away in an evasive manner. As the officer approached Griffin he put both hands on Griffin’s wrists and told him he was investigating a theft. Griffin denied stealing anything but the officer frisked him to ensure his safety. In his pocket, he felt what he thought were a couple of C-cell batteries. He did not reach into the pocket but unsure of what it was or why Griffin would be carrying batteries he asked: “Hey what’s in you pocket and why do you have batteries?” The defendant answered that they were shotgun shells and not batteries. The officer then asked if he had ever been to prison, and the Defendant replied yes. Griffin was arrested and charged with being a felon in possession of ammunition.

The district court granted the defendant’s motion to suppress the ammunition and statements because it found that although the initial stop and the ensuing frisk was permissible, the questioning by the officer went beyond the scope necessary to ensure the officer’s safety and became an unreasonable search when the officer continued to probe and investigate about the items he felt in the defendant’s pocket.

The Eleventh Circuit reversed. It found the initial stop and pat down was a permissible stop under the Fourth Amendment. Under these circumstances the officer may conduct a pat down pursuant to Terry v. Ohio, if he reasonably believes his safety and the safety of others is threatened. The officer was alone in a high crime area with six to eight others persons in the vicinity and the defendant had refused to stop when the officer was investigating an alleged theft. All of this justified the initial stop and frisk.

Published on: September 26, 2012

Warrantless search of home for guns upheld after the Defendant arrested outside the house

by The Swartz Law Firm

In U.S. v. Franklin the Eleventh Circuit applied an exception to the Fourth Amendment protection against warrantless searches and seizures of the home. Under the Fourth Amendment, a law enforcement officer must present to an independent magistrate an affidavit showing probable cause exists to support the issuance of a warrant. Courts have carved out exceptions to the warrant requirement and this case presents one of those exceptions. The Eleventh Circuit upheld a warrantless search and seizure of firearms from a house after the Defendant had been taken out of the house and arrested for a probation violation. The defendant had been under the supervision of a state probation officer when he flat out told the P.O. that he was no longer going to comply with his conditions and would not report as required. The probation officer obtained a warrant for his arrest and learned he was staying at his fiance’s home in Ft. Myers, Florida. After arriving at the fiance’s house with other police officers, the probation officer knocked on the door but no one answered. One of the officers went to the back of the house where he observed Franklin through the rear window and saw several firearms in plain view. Franklin was eventually persuaded to come out and surrendered. After Franklin’s arrest, the probation officer entered the house claiming he did it for officer safety since there were other persons who were in the house along with the firearms. Inside he seized five weapons. The defendant was charge with the illegal possession of a firearm. The defendant filed a motion to suppress.

The magistrate judge initially granted the motion because it found the defendant was no longer on conditional release on the day of search so he consent to search was not valid. The magistrate judge also found that good faith did not apply. The district court reversed the magistrate’s ruling and found there was sufficient probable cause and exigent circumstances to justify entry into the house and seizure of the firearms. Viewing the totality of the circumstances, a reasonable officer would believe that evidence might be destroyed or removed before a warrant could be secured.

The Eleventh Circuit agreed with the district court and upheld the search and seizure on the reasons given by the district court. The evidentiary hearing demonstrated that that the probation officer acted reasonably under the circumstances. He reasonably believed the firearms could be removed before a warrant secured. Two cars were in the driveway and at least one person seemed willing to help the defendant avoid arrest by not answering the door. Here the Eleventh Circuit found an analogous case in U.S. v. Rodgers, 924 F.2d 219 (11th Circ 1991) where there were exigent circumstances to enter a residence because another person who knew of the defendant’s arrest was in the residence and the handgun could easily be removed.

Published on: September 19, 2012

An unredacted indictment mistakenly sent to the jury showing the Defendant’s inadmissible prior convictions was harmless error according to the Eleventh Circuit.

by The Swartz Law Firm

In U.S. v. Dortch the Defendant was charged in federal court in Florida with the federal crimes of possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The federal charges also included the possession of two specific firearms by a convicted felon. The indictment alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce at trial 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

Published on: September 14, 2012

An unredacted indictment showing Defendant’s excluded priors mistakenly sent to the jury was harmless error

by The Swartz Law Firm

The Defendant in U.S. v. Dortch was charged in federal court with possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a federal criminal drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The indictment also charged the defendant with possession of two specific firearms by a convicted felon and it alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

Published on: August 16, 2012

Delay in filing an indictment caused by plea negotiations is not excludable time without a specific court order stating that the ends of justice served by the delay outweigh the best interests of the public and the defendant in a speedy trial

by The Swartz Law Firm

Charges were brought against the defendant in U.S. v. Mathurin for various armed robberies in Miami-County, but he was initially charged by information as a juvenile under the Juvenile Justice and Delinquency Act. After the defendant waived his rights not to be prosecuted as an adult, the defendant and the government began plea negotiations, starting about August 27, 2009. There was dispute as to when plea negotiations actually ended, but the defendant was indicted in federal court in Miami on December 29, 2009. The charges in the indictment were identical to the charges in the juvenile information under which he had been held in custody. Eventually, the defendant went to trial and was convicted of various counts and sentenced to 492 months.

Under the Speedy Trial Act the government is required to file an indictment against the defendant within 30 days from the date of arrest. The act provides for excludable time for delay resulting from “proceedings concerning the defendant,” including periods of delays from specific enumerated categories of proceedings. One of those categories of delay includes a “delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the government.” 18 U.S.C. §3161(h)(1)(G). The remedy for a violation of the 30-day time limitation is dismissal of the complaint.

The 11th Circuit found the 30 day clock began to run when the defendant gave his consent to be prosecuted as an adult on August 27, 2010. The government argued that the time period from August 27, 2009, through December 22, 2009, (the date of a status conference on an the plea negotiations), was all excludable time. The 11th Circuit disagreed and concluded it was not excludable time because the district court was never asked to review a proposed plea agreement during this interim period. A delay resulting from plea discussions between the government and the defendant is not automatically excludable as “proceedings concerning the defendant.” For the delay to be excludable, the procedure under the Speedy Trial Act requires the district court to approve the delay by a finding that the “ends of justice served by taking such a delay outweigh the best interest of the public and the defendant in a speedy trial.” 3161(h)(7)(A). While the parties may delay the filing of an indictment as long as they want, without a court order containing this language, the Speedy Trial Act is not waived. Plea negotiations do not fall under the category of events that automatically exclude delay. The 11th Circuit held that the indictment had to be dismissed because it was filed beyond the 30 day time limitation and the delay for plea negotiations was not automatically excludable time. Whether the dismissal will be with or without prejudice would be left for the district court to decide on remand. The 11th Circuit did not address this issue.

Published on: August 12, 2012

Tolling of the Statute of Limitations upheld under 18 U.S.C. § 3292, which allows for its suspension while the government makes an official request to a foreign country for evidence the government reasonably believes can be found in the foreign country

by The Swartz Law Firm

In U.S. v. Broughton, the defendants were charged in one count with conspiracy to commit mail fraud, wire fraud, and insurance fraud and in a second count with money laundering. The fraud conspiracy was a scheme to create fraudulent capitalization for insurance companies. State and federal law requires that companies offering insurance or credit backing on behalf of other companies in the United States must be licensed. To be licensed, a company must show it has sufficient capital to meet the insuree’s obligations and that it possesses sufficient capital reserves in the event of future claims. The capital requirements include Treasury Notes, Certificates of Deposits, stocks, and bonds but this capital can only be claimed as an asset on an insurance company’s financial statement if it is owned and controlled by the company claiming the assets. Beginning around 1996 the I.R.S. launched an insurance fraud investigation that looked at companies/people that “rented” assets that others owned to include in their own balance sheet as assets. The investigation focused on individuals and companies that marketed themselves as insurance providers on the basis of rented assets. Evidently, these fraudulent companies would collect insurance proceeds without intending to pay out any claims.

The I.R.S. investigation led to meeting between a co-conspirator and an I.R.S. agent posing as a businessman looking for assets to start an insurance company. Over time, the defendants described how they market their fraudulent shell company with its “unqualified audit opinion” and they provide the appearance of nonexistent Treasury Notes and CDs as rented assets. The conspirators described how to structure the insurance company with subsidiary companies holding the fraudulent rented assets. The undercover agents agreed to rent $10 million in assets to capitalize their insurance company and made cash payments in exchange.

The defendants moved to dismiss the indictment returned January 17, 2006, on statute of limitations grounds arguing that the statute was improperly suspended under 18 U.S.C. § 3292. This provision allows the district court to suspend the running of the statute of limitations if, prior to filing the indictment, the government makes an official request to a foreign country or court for evidence that reasonably appears to be located in the country to which the request was made. The defendants argued the government failed to satisfy these requirements for the following reasons:

Published on: August 2, 2012

District Court has authority to reduce a sentence under the FSA Amendments to the crack cocaine sentencing guidelines for this pre-FSA sentence

by The Swartz Law Firm

In U.S. v. Liberse, the defendant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine in 2006. At the time of his offense, his guideline range was 121 to 151 bases on the quantity of crack cocaine. Though the mandatory minimum was 120 months, his sentence of 121 months was one month above the statutory mandatory minimum. The mandatory minimum did not affect the sentence because it was less than the guideline range. The government later filed a motion to reduce his sentence pursuant to Rule 35(b) for his substantial assistance in the prosecution of another case. The district court reduced his sentence below the statutory minimum to 97 months.

In 2010, the Fair Sentencing Act (FSA) increased the drug amounts that trigger the mandatory minimum sentences (from 5 grams to 28 grams with respect to the 5 year minimum and from 50 grams to 280 grams with respect to the 10 year minimum sentence.) After enactment of the FSA, the Sentencing Commission promulgated Amendment 750 which revised the crack cocaine quantity table of 2D1.1(c) and Amendment 759 made it retroactive.

Liberse filed a motion pursuant to 18 U.S.C. §3582(c)(2) to reduce his sentence because under this Amendment Liberse’s guideline range was lowered to 70 to 87 months and The district court denied the motion for the reason that Liberse was subject to the same 120 month mandatory minimum sentence that was in effect before the FSA and the district judge in this federal court in Ft. Lauderdale, Florida, believed the Commission did not have authority to alter a statutory mandatory penalty. The 11th Circuit court overturned the decision finding that the revised crack cocaine quantity table lowered his base offense level to the point where his new guideline range would be 70 to 87 months. The open question that was not decided by Dorsey v. U.S. (applying the FSA to offenses that took place before the Act but sentenced after the enactment) is whether the reduced mandatory minimum quantities under the FSA apply to a Liberse whose offense and sentence took place before enactment. It was not decided by this decision and 11th Circuit will allow the district court to decide if the FSA mandatory minimum quantities apply to Liberse’s case. Either way his sentence will be reduced. It could be reduced by one month if the district court finds the FSA does not apply to reduce the mandatory minimum for Liberse (the mandatory minimum of 120 months is still less than his original guideline range of 121 months). Or it could find the FSA does apply and reduce the sentence to the new guideline range of 70 to 87 months. Also, because Liberse received a Rule 35(b) sentence reduction to his original sentence for substantial assistance, the sentencing court can reduce his sentence, pursuant to Amendment 759, which provides for a reduction that is “comparably less than the amended guideline range” if the term of imprisonment imposed was less than the normal guideline range because of the defendant’s substantial assistance. For this reason the district court did have the authority to reduce the sentence.

Published on: July 26, 2012

Court finds a warrantless entry into the home did not taint the subsequent consent to the search the home and discovery of child pornography on defendant’s computer

by The Swartz Law Firm

In U.S. v. Smith, the 11th Circuit found no Fourth Amendment search and seizure violation. Smith was charged with receiving and distributing child pornography in violation of 18 U.S.C. 2252(a)(2) and (b)(1) following the discovery of child pornography on a computer found in his home. Smith moved to suppress the computer contents from admission at his federal criminal trial. He also moved to suppress statements on the grounds the officers conducted a warrantless and uninvited entry into the house and the evidence should be suppressed as the fruit of poisonous tree. After the motion was denied, Smith entered a conditional guilty plea allowing him to appeal.

Here are relevant facts. ICE officers operating on a tip that Smith has child pornography on his computer went to his duplex apartment to speak with him. No one answered after officers knocked and then pounded on the door.

Through windows the officers saw mound of beer cans and a laptop computer in the living room. They smelled a foul odor from Smith’s apartment, which one detective thought was similar to that of a decomposing body. A neighbor told them he had to be home because she saw him the previous evening and his car was in driveway. The neighbor expressed concern that he was not answering the door and asked the officers to check on him and she told one of the officers that Mr. Smith was feeling some sort of depression and was not acting right. The officers determined they should conduct a “welfare check” and enter the home through an unlocked sliding glass door to ensure Smith’s well-being. As they moved through the house they heard a moaning or groaning sound and found him in his bedroom lying on a mattress. After he told them he was okay they told him they were there to speak with him. Smith said he would talk with them outside. The officers left the apartment and met with Smith outside where they asked him questions about child pornography on his computer. When officers asked him if they could look at his computer, he agreed and let them back in the house. The officers found suspicious files on his computers. After some time, he signed a consent form allowing the agents to search his home. He then consented to the police taking items back to the station to examine. They asked and he agreed to return to the station with them for questioning. At the station he was given Miranda warnings. He then confessed to downloading child pornography and making it available for upload via a peer to peer file sharing program.

Published on: July 21, 2012

The district court’s estimate of drug quantity for a previous delivery was upheld because the decision was based on a reasonable interpretation of the facts

by The Swartz Law Firm

In U.S. v. Almedina the defendant was arrested after receiving a package containing 458 grams of heroin that was delivered to him by ICE agents in a controlled delivery. The package had been imported to Miami from Colombia. Almedina cooperated with agents in his federal criminal case and explained that he was promised $1,000 from a Salgado to pick up the package and deliver it to Salgado. He also told the agents that he accepted a package from Colombia the month before for Salgado and was paid about the same. Salgado was arrested on federal criminal drug charges. He admitted being paid to accept the package and for some people from South America. He confirmed receipt of a package the month before and was paid a little less. At Almedina’s sentencing, the PSI included the earlier package, and the government estimated the earlier package weighed about the same as the seized package based on the amount both persons were paid. The sentencing court accepted the approximate quantity of the previous delivery and combined with the seized quantity put Almedina at an offense level 30, which applied to 700 to 999 grams of heroin.

Almedina argued on appeal that the district court improperly speculated the quantity. He argued it was speculation to presume the first package contained heroin just because the second contained heroin. It is plausible, he argued, that the first package contained no contraband and was just a dry run. Almedina reasoned that it is unlikely that drug dealers would send that amount of contraband to an unknown person without first determining that person was reliable. And even if the first contained contraband there is no evidence as to the type or amount. The government’s argued the district court was correct because it is unlikely the drug importers would have paid them for an empty package.

The district court’s estimate that the first package contained at least at least 215 grams of heroin was fair and reasonable. The 11th Circuit cited a long standing principle that when a fact pattern gives rise to two reasonable and different constructions, the fact finder’s choice between them cannot be clearly erroneous. Further, it cited the principle that in approximating the quantity of drugs, the district court may rely on evidence showing the average frequency and amount of a defendant’s drug sale over a given period of time. That determination must be based on fair accurate and conservative estimates of the quantity of drugs attributable to the defendant, and cannot be based on merely speculative calculations.