White Collar Criminal Defense Lawyer Blog

Published on: April 9, 2012

The Florida False Imprisonment conviction did not qualify as a crime of violence under the sentencing guidelines enhancement for reentry after deportation

In this illegal reentry case the 11th Circuit once again faced the question of whether a prior conviction for a crime of violence triggered the steep sentencing enhancement imposed by the sentencing guidelines. The prior conviction in question here was a Florida conviction for false imprisonment. In U.S. v. Rosales-Bruno the defendant did not have to face the sentencing enhancement that face many defendants in federal criminal court in Miami who have been whose only crime was to reenter the U.S. after deportation. The sentencing court enhanced the defendant’s sentence based on the court’s finding that a prior Florida conviction for false imprisonment qualified as a crime of violence under sentencing guidelines. The Florida law defines false imprisonment as “forcibly, by threat, or secretly confining abducting, imprisoning, or restraining another person…against his or her will.” The applicable guideline section 2L1.2 requires a 16 level increase in calculating a defendant’s offense level if a defendant was deported after a conviction for a crime of violence. The defendant argued of course that the Florida law was not a crime of violence for the reason that one could violate the false imprisonment statute by secretly detaining a person, meaning without employing the physical force contemplated in the sentencing guidelines for a crime of violence. Rosales-Bruno further argued that the government had not proven that he did employ physical force when he committed the false imprisonment offense.

In determining whether the prior conviction was a crime of violence, the 11th Circuit took what it termed a “modified categorical approach” By this, the court looks at the fact of conviction, the statutory definition of the offense, any charging papers and jury instructions in an effort to determine whether committing the offense required committing a crime of violence. However, where the statutory definition of the prior offense encompasses both violent and non-violent criminal conduct, the court looks beyond the fact of conviction and the elements of the offense to determine whether the prior conviction falls under a particular statutory phrase that qualifies it as a crime of violence.

The 11th Circuit concluded the false imprisonment was not a crime of violence. The offense was not a categorically a violent offense.

Published on: April 9, 2012

Conviction and 320 month sentence for engaging in and recording sexually explicit conduct with minors

by The Swartz Law Firm

In U.S. v. Lebowitz the defendant was charged with producing child pornography in violation of 18 U.S.C. §2251(a) and one count of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. §2422. Lebowitz began communicating with a15 year old boy male, K.S. on MySpace who falsely claimed to be 17 or 18 years of age. Lebowitz identified himself as a 47 year old doctor and began chatting on line with K.S. The conversations became sexual in nature, with the defendant sending K.S. a nude photograph of himself. At that point K.S. informed the defendant his true age of 15. After a day of chats, K.S. informed his mother, who called the defendant and told him to stop contacting her son. He did not and the mother contacted law enforcement. With the approval of the county sheriff office, K.S. continued corresponding with the defendant, informing the defendant his true age was 15. Meanwhile, the defendant expressed an interest in pursuing a sexual relation with K.S, a minor.

When the defendant arrived at K.S.’s house, he was arrested. After the arrest, the officer searched his car and found incriminating evidence including condoms, lubricant, and sleeping bags. The officer obtained a search warrant of the defendant’s residence where they seized a VHS tapes engaged in sexual activity with the defendant: one showed a male A.G. aged 16 and the other showing C.R. age 15.

The 11th Circuit upheld the denial of Lebowitz’ Fourth Amendment challenge to the car search. The court held that assuming the search violated the Fourth Amendment, the good faith exception applied because the officer “relied” on the binding 11th Circuit precedent at the time of the search, which allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.

Published on: March 23, 2012

Detention was reasonable when officers learned one of four men had a gun

by The Swartz Law Firm

In U.S. v. Lewis an 11th Circuit panel majority reversed the district court’s order suppressing evidence seized during an investigatory stop in this government interlocutory appeal. The district court in Florida federal court had granted defendant Lewis’ motion to suppress a firearm discovered after he and three associates were briefly detained by law enforcement officers in a parking lot at night. The district court had granted the motion to suppress, finding the detention was unreasonable in violation of the Fourth Amendment.

The trial court found the initial stop was unlawful because the officers lacked any particularized and objective suspicion that any of the four men had been engaged in or were about to engage in criminal activity at the time the officers ordered the men to stop. The men were in fact not engaged in criminal activity, standing by the car, looking in the trunk of the car, talking to each other, standing in the parking lot of a restaurant while it was open, failing to park their cars in the designated spots. When deputy sheriff approached the four he asked whether any of them were carrying guns. One of the four, McRae, told the deputy that he did have one and told the deputy where it was located. No one made a sudden move or attempted to reach for the firearm.

The deputies immediately drew they weapons and ordered all four to sit on the ground, turning the encounter into an investigatory stop. On the ground near the area where defendant Lewis was sitting, the officers found a semi-automatic pistol underneath a car and he was charged with carrying a concealed firearm in violation of Florida law. He was later charged with possession of a firearm by an illegal alien and filed a motion to suppress. The district court granted the motion finding the Terry stop was not lawful because the mere possession of a firearm did not justify the stop and detention, absent any suspicion of the four were involved in any criminal activity. It was not per se unlawful to possess a handgun or illegal to admit to carrying one.

Published on: February 28, 2012

Fifth Amendment protects witness subpoenaed to appear before a grand jury to decrypt contents of his computer hard drive

by The Swartz Law Firm

In U.S. v. John Doe the 11th Circuit came down on the side of a person’s Fifth Amendment right not to incriminate himself. Doe was held in civil contempt for failing to comply with a subpoena duces tecum requiring him to appear before a grand jury and produce the unencrypted contents of Doe’s laptop computers and five external hard drives. Basically the subpoena wanted Doe to decrypt and produce the contents of the computer hard drive and the external hard drives that had been seized during the course of a child pornography investigation. Law enforcement had linked the computer to Doe through IP addresses. Because the forensic examiners were unable to view the encrypted portions of the hard drives, a grand jury subpoena was issued to Doe requiring him to decrypt the contents of the computer hard drives.

When Doe advised the U.S. Attorney that his compliance with the subpoena would violate his Fifth Amendment privilege against self incrimination, the U.S. Attorney applied to the district court for immunity under 18 U.S.C. section 6003 but it limited the immunity to the use of Doe’s act of production of the unencrypted contents of the hard drive. The limited immunity would not extend to the derivative use of the contents of the hard drives as evidence against him in a criminal prosecution. The district court decided that the government’s use of the unencrypted contents in a prosecution against Doe would not constitute derivative use of compelled testimony because the district court believed the act of production did not constitute giving testimony.

The 11th Circuit disagreed, holding that Doe’s decryption and production of the hard drive contents triggered a Fifth Amendment protection because it would be testimonial. It would not be a mere physical act. The decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control and access to the encrypted portions of the drive; and of his capability to decrypt the files.

Published on: February 27, 2012

Mandatory minimum sentence reversed because prior rape convictions did not qualify as violent felonies under the Armed Career Criminal Act.

by The Swartz Law Firm

In U.S. v. Owens the defendant pled guilty to being a felon in possession of a firearm and his sentence was enhanced because the district court determined his prior convictions under Alabama law for second degree rape and second degree sodomy qualified as a violent crime under the Armed Career Criminal Act (ACCA) which mandates a 15 year minimum sentence for any convicted felon who possesses a firearm after having been convicted of three violent felony or serious drug offenses. The ACCA is a commonly used in Florida federal courts.

A violent felony is defined as a felony which “has as an element the use, attempted use, or threatened use of physical force against the person or another; or is a burglary, arson, or extortion or involves explosives or otherwise involves conduct that represents a serious potential risk of physical injury to another.” The court first examines whether the offense is a violent felony under the elements clause, which provides that the offense has as an element the use of physical force; second, whether the offense is one of the enumerated crimes; and third, whether it is an offense under the residual clause. The residual clause analysis requires the categorical approach: examining the offense in terms of how the law defines the offense and not in terms of how an individual offender might have committed the offense.

Owens had ten convictions for Class B felonies of rape and sodomy in the second degree. Under the Alabama statutes for these offenses, it is a crime to engage in sexual intercourse with a member of the opposite sex who is less than 16 years, so long as the offender is no more than two years older than the victim. The district court enhanced the sentence under the ACCA and imposed a sentence of 293 months relying on the 11th Circuit precedent in U.S. v. Ivory, 475 F.3d 1232, which found these Alabama offenses were violent felonies because they involved the use of physical force against the person of another. In Owen’s first appeal to the 11th Circuit his sentence was affirmed under Ivory.

Published on: February 20, 2012

Jury did not have to find defendant knew he was in possession of cocaine rather than marijuana in drug trafficking conspiracy charge

by The Swartz Law Firm

Sanders was convicted of distributing cocaine after he was stopped by Georgia State Patrol driving a tractor trailer containing 153 kilograms of cocaine. After giving consent to the search of the truck, officers found cocaine hidden in the trailer hidden inside a pallet of rotting cabbage. At trial, the jury was instructed that Sanders did not have to know the nature of the particular drug he possessed in the trailer, but only had to know it was a controlled substance. When a jury question asked whether the term controlled substance and cocaine were interchangeable, the trial court instructed that they are not interchangeable because controlled substance is a broader terms than cocaine and could mean drugs such as methamphetamines or other drugs. In U.S. v. Sanders the 11th Circuit agreed with this instruction.

Although a jury must determine the quantity and type of drug involved, the government is not required to prove the defendant had knowledge of the particular drug type or quantity for a sentence enhancement under 841(b). The trial court’s instructions that defendant only has to know it is a controlled substance and did not have to know it was actually cocaine was a correct statement of the law. The defendant relied on a defense that the defendant was just a truck driver and was unaware he transported cocaine in the cabbage. Rather he argued the government could have let the defendant plea to transporting marijuana but was trying to put the whole truckload of cocaine on the defendant. The defense suggested that he only intended to transport marijuana. The district court did not amend or broaden the indictment by instructing the jury that Sanders did not have to specifically know that he possessed cocaine. The indictment charged a generic controlled substance violation and the district court correctly instructed the jury that sanders had to know only that he was conspiring to distribute any controlled substance.

The admission of a 22 year old conviction for selling 1.4 grams of marijuana was harmless error. Sanders appealed the admission under Rule 404(b) of the Federal Rules of Evidence of his 1988 conviction for selling 1.4 grams of marijuana. Sanders argued that any probative value of the prior conviction was diminished by the 22 year gap between the prior and the trial, the lack of similarity between the street-level sale and the 153 kilogram trafficking conspiracy, and that the government had no need to introduce the 1988 conviction in light of other evidence. The 11th Circuit concluded the trial court abused its discretion by admitting the 22 year old conviction fo 1.4 grams of marijuana, finding no probative value in establishing Sanders intent to enter in the conspiracy. Nevertheless the fact that the prior conviction was so old and dissimilar that it was unlikely the jury convicted Sanders because of the prior conviction, given the abundant evidence admitted at trial. The admission of the prior conviction was considered harmless error in light of the overwhelming evidence.

Published on: February 17, 2012

Mail fraud counts dismissed for material variance between the evidence and the indictment

by The Swartz Law Firm

The defendant, an attorney in Dixie County Florida, was convicted of mail fraud and money laundering charges relating to two separate fraudulent schemes. One scheme involved the defendant’s conversion of funds developers gave him to hold in trust for future expenses associated with a development (River Shores Scheme). The other scheme was convincing victims to invest in a vitamin company called GenSpec Labs (GenSpec) by misrepresenting the anticipated return on the investment and the viability of the company (GenSpec Scheme). The court in U.S. v. Lander found the proof presented at trial in connection with the River Shores mail fraud count materially varied from the allegations contained in the superseding indictment.

Landers practiced as an attorney and served as the Dixie County Attorney. He had business dealings beyond his legal work as he tried to start GenSpec. A group of developers planning the River Shores project retained Landers to help guide their project through the county’s regulatory process. The developers did not know at first he was the county attorney, but after they did they gave him $820,000 as a level of security to assure buyers their project would pass through the county’s regulatory process.

The indictment charges that Landers misrepresented to developers that they were required to pay a performance bond to Dixie County through him as its county attorney. It charged that Landers deposited the $820,000 as payment for the performance bond. At the trial the government failed to present evidence to support the specific charges that the defendant made false representations about having to pay a performance bond. The government instead presented evidence of a scheme to defraud that was entirely different from the one alleged in the indictment charging the River Shores scheme. The misrepresentations that the government relies upon as proof of the offense do not coincide with the allegation of the indictment. The evidence the government offered at trial to support this fraud varied so greatly from the allegations of the indictment the Landers was unable to prepare his defense. When a material variance substantially prejudices the Defendant as it did here, the variance constitutes reversible error. The Court also reversed the money laundering convictions because they were predicated on the River Shores mail fraud count.

Published on: February 16, 2012

Sentencing enhancement upheld where defendant induced the Customs and Boarder Patrol to fire on his fleeing vessel

by The Swartz Law Firm

Defendant McQueen was convicted of attempted alien smuggling and failing to obey an order by federal saw enforcement to heave to the U.S. Customs and Boarder Patrol (CBP) vessel (18 U.S.C. 2237(a)(1). His sentence was enhanced by sentencing guidelines section 2L1.1(b)(5)(A) because a firearm was discharged by law enforcement in the course of the chase. In U.S. v Mcqueen the 11th Circuit Court of Appeals affirmed the sentencing enhancement.

McQueen’s boat was spotted by a CBP patrol plane heading west toward Palm Beach County, Florida. The boat matched the description of the Mary Carla, a 33-foot vessel suspected of smuggling aliens or drugs into the U.S. The CBP patrol boats attempted to interdict the Mary Carla about 11.8 nautical miles offshore by activating their blue lights, sirens, and spotlights, and commanded its operator to stop. The operator of the Mary Carla, McQueen, attempted to flee, turning east away from land and the CBP boats pursued him, firing illuminated warning shots, followed by the launching of four pepper balls into the boat’s cabin, and then more warning shots as McQueen continued to flee. The officers had to board the Mary Carla while it was still moving. Inside they found 14 aliens.

The enhancement applies if the discharge of the firearm was induced or willfully caused by the defendant. The issue was whether McQueen induced the CBP to discharge the firearm. Applying U.S. v. William where the court affirmed the application of the enhancement in a robbery context by concluding that the victim discharged his gun because he was induced by the defendant’s conduct. There the defendant attempted a carjacking by approaching a truck and pointing his gun inside. In response the occupant shot at Williams.

Published on: February 14, 2012

Third party’s failure to timely petition for adjudication of interest in forfeited property forecloses any opportunity for relief.

by The Swartz Law Firm

In this appeal Juanita Davenport challenged a final order of criminal forfeiture of $214,980 seized from a safety deposit box. In U.S. v. Davenport, the defendant and her codefendants were charged in the indictment with participating in a drug conspiracy. In addition, Davenport was charged with making a false statement to a federal agent. The indictment also sought to forfeit all the defendants’ interest in any property derived from or used to facilitate the commission of the drug conspiracy. The Davenport pled to the false statement charge and the government dismissed the forfeiture count against her.

One codefendant in her case pled guilty to drug distribution and agreed to forfeit his interest in the $214,000 of U.S. currency found in Davenport’s safe deposit box. A preliminary order of forfeiture was entered pursuant to Rule 32.2(b) and the government filed a notice of intent to dispose of the property, giving persons with interest 30 days to petition the court to adjudicate their potential interest in the property. A written notice of the forfeiture went to Davenport’s attorney advising him his client had 30 days from the written notice to file a petition of 60 days from the first day of the government’s publication of the notice on its website. After the 30 day period ran out, Davenport’s attorney petitioned the district court to adjudicate her interest in the forfeited currency. The district court dismisses the claim as untimely.

First, the 11th Circuit held that Davenport lacked standing to challenge the validity of the preliminary order of forfeiture. Her sole mechanism for vindicating her purported interest in the forfeited property was through the ancillary proceedings of 18 U.S.C. section 853 and Rule 32.2(c). Third parties may not relitigate the merits of a forfeitability determination.

Published on: February 9, 2012

Conviction for illegal reentry was dismissed where the government was collaterally estopped from proving the defendant was alien non-citizen

by The Swartz Law Firm

In this unusual result, the 11th Circuit Court of Appeal reversed a conviction and dismissed the case because it found the government would be legally barred from proving a crucial element of the offense. The defendant in U.S. v Valdiviez-Garza

was convicted in the Middle District of Florida, Tampa Florida, of illegally entry by an alien who had been previously removed or deported, in violation section 1326(a). To convict of this offense, the government had to establish beyond a reasonable doubt that the defendant (1) was an alien at the time, (2) who had previously been removed or deported, (3) and had reentered the U.S. after removal; (4) without having received the express consent of the Attorney General. The defendant claimed the government was collaterally estopped in this case from presenting evidence and litigating the defendant’s alienage because of a prior acquittal.

An element of the offense required proof the defendant was an alien at the time of the offense. The defendant had previously been charged following a prior reentry incident, and he was tried and acquitted. In the earlier criminal trial, the defendant disputed the government’s claim that the defendant was an alien with proof he derived his citizenship through his father. The defendant was acquitted. Because the alienage issue was disputed at the prior trial and the jury acquitted, the 11th Circuit found there was reasonable doubt that the defendant was an alien and the government was collaterally estopped in this case from arguing the defendant is an alien. Under the collateral estoppel doctrine, when an issued of fact has been determined by a final judgment, the issue cannot be litigated again between the same parties in any future lawsuit. To determine whether collateral estoppel applies in a criminal proceeding, first the court must ascertain what facts were necessarily determined during the acquittal at the first trial. Second, the court must decide whether the facts determined as part of the prior acquittal are an essential element of the offense charged in the subsequent proceeding.