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In U.S. v. Jose Padilla, the court of appeals upheld the conviction of Padilla, commonly known as the “dirty bomber” who was held in solitary confinement for 3 years as an enemy combatant before he was indicted in Miami. Padilla along with Adham Hassoun and Kifah Jayyousi were charged with conspiracy to commit murder overseas and with providing material support intended to be uses in carrying out a conspiracy to murder overseas. The charges stem from activities in support of Islamic violence overseas. The case presented by the government showed the defendants formed a support cell linked to radical Islamists outside the United States and conspired to send money recruits and equipment overseas to groups the defendants knew use violence in efforts to establish Islamic states. This case had its roots in the South Florida area but extended across the globe to Egypt, Afghanistan, and Kosovo.

The evidence against Padilla consisted of a mujahideen identification form recovered from Afghanistan. Fingerprints on the form were linked to Padilla as well as his date of birth and country of origin. The form sated that the applicant had traveled to Egypt for study, Saudi Arabia for hajj, and Yemen for jihad.

The government’s case against the defendants consisted mainly English translations of secretly recorded phone conversations in Arabic. The case agent for the government testified as a lay witness giving his opinions about code words which he interpreted as code words for jihad or violent jihad related activities. He was questioned about each of the calls giving his opinion throughout the calls about the jihadist related groups and activities the defendants were involved with throughout the time period of the calls. He said that people involved in terrorism related cases use code in their communications. He then after reviewing the call transcripts gave his meaning or a long list of code works.

The main issued in the case is the admission of Kavanaugh’s testimony about his interpretation of the alleged code words used by the defendants. The defendant’s argued he could not give lay opinions about the conversations because he was not present during the conversations and did not have a rationally based perception of what the individuals meant. The court majority concluded that Kavanaugh testimony was rationally based on hid perceptions and his perceptions were he having read through the wiretap summaries plus hundreds of verbatim transcripts and listening to calls in English. The court concluded that lay witness FBI agents have been allowed to base opinion testimony on the examination of documents even when the witness was not involved in the activity about which he testified, relying primarily on U.S. v. Hamaker and U. S. v. Gold. Below are a few comments by the panel majority about Kavanaugh’s opinions:
1. “Kavanaugh could testify about the meaning of code words that he learned through his examination of voluminous documents during a five year investigation.”
2. “Kavanaugh’s knowledge of the investigation enabled him to draw inferences about the meanings of code words that the jury could not have readily drawn.”
3. “He limited his testimony to what he learned during this particular investigation and he testified that he interpreted code words based on their context.”

The panel found the evidence was sufficient against Padilla for a reasonable jury to find that he trained with al-Qaeda and shared the co-conspirators intent to support violent jihad overseas. The evidence was sufficient for a reasonable jury to find that both Padilla and Jayyousi were supporting mujahideen overseas engaged in murder maiming and kidnapping. The evidence supported the jury’s reasonable inference that Padilla and Jayyousi knew the training camps trained recruits in war tactics and they shared a common purpose to support violent jihad to regain lands that were once under Islamic control.

The district court did not abuse its discretion in allowing government to call Dr. Rohan Gunaratna as an expert witness in the area of al-Qaeda and its associated groups.

The district court did not err in admitting a 1997 CNN interview with Osama bin Laden. In admitting the tape, court only allowed a 7 minute portion, explained to the jury there was no indication the defendants were connected to 9/11, and instructed the jury not to consider the evidence for its truth but for the state of mind evidence against Hassoun and Jayyousi.
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The defendant in U.S. v. Webb was physician charged with unlawfully distributing numerous controlled substances such as oxycodone and fentanyl. Three of his patients died as a result of their over use and he was charged with enhanced provisions of the controlled substances law and enhanced provision of the healthcare fraud statute. He was charged with dispensing oxycoten, fentanyl, and alprazolan with death resulting from these three pain killers. Charges for a crime such as this have been filed in the past against other doctors in Miami and South Florida. This will probably continue in the future if there are fatalities resulting from the abuse of pain medicine. Webb raised three arguments on his appeal.

  • The judge’s instruction to the jury was error,
  • The evidence was not sufficient to sustain a conviction, and
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In U.S. v. Smith the defendant Smith pled guilty in Miami to the crime of distributing 50 grams or more of cocaine base. His plea agreement in federal court contained an agreement to waive an appeal of his sentence, except in three very limited circumstances:

  • if the sentence exceeds the maximum permitted by the statute;
  • if there is an upward departure, or
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    In a 2 to 1 decision the Eleventh Circuit Court of Appeals reversed a district court’s sanctions imposed under the Hyde Amendment. The majority called this case a high stakes appeal involving the sovereign immunity of the United States, the separation of powers and the civil rights and professional reputation of two federal prosecutors. In U.S. v. Shaygan, Dr. Shaygan was investigated by the D.E.A. after one of his patients died from a lethal combination of prescription drug and illegal drug. He was charged in a 23 count indictment with dispensing controlled substances outside the scope of professional practice. Shaygan’s attorney moved to suppress statements he made to agents alleging a violation of his right to counsel. Soon after the motion was filed, the AUSA informed the defense counsel that if the Defendant chose to litigate the issues, there would be no more plea discussions a “seismic shift” would result in the way he would prosecute the case. Within weeks, the government filed a superseding indictment containing 141 additional counts based on the newly identified patients.

    During the pretrial phase, the government investigator expressed concern to the government prosecutors that he thought there was possible witness tampering by the defense team. After the two assistants approached the chief of narcotics section, an investigation was opened, though permission from United State Attorney was never given. A separate investigation of the defense team opened up under the direction of the chief of narcotics. The two witnesses recorded conversations with the defense investigator. After listening to the conversations, the chief of narcotics determined nothing wrong took place.

    At trial, one of the cooperating government witnesses mentioned in cross examination that he recorded a conversation with the attorney. That was when the defendant’s attorneys learned they were subjects of a parallel witness tampering investigation and that two government witnesses were acting as informants. The defendant was allowed to reopen cross examination and the jury heard about the parallel investigation of the defendant’s attorneys
    After the acquittal, the Defendant filed a motion for attorney’s fees under the Hyde Amendment. The district court held a hearing and granted the defendant’s Hyde Amendment motion awarding fees in the amount of $601,795 for Miami Attorneys who represented the acquitted of the crime chargee in the superseding indictment. It concluded that the prosecutors acted vexatiously and in bad faith in bringing the superseding indictment. The district court also publicly reprimanded the prosecutors.

    The court of appeals reversed, stating that the district court misinterpreted and misapplied the Hyde Amendment. It reviewed the evidence against Shaygan and found the superseding indictment was not filed in bad faith, despite the prosecutor’s ill will towards the defense for filing a motion to suppress. The record shows the prosecutor has an objectively reasonable basis for superseding the indictment. It in light of the evidence, the majority found the charges were not objectively filed in bad faith. The court compared the standard to civil rules where bad faith is an objective standard that is satisfied when an attorney knowingly and recklessly pursues a frivolous claim. Imposing sanctions on the government for exercising prosecutorial discretion would conflict with the separation of powers clause of the constitution.
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    This case does not involve white collar crime. But it involves the issue of a joint trial with overwhelming bad evidence against the co-defendant, so it is still important. In U.S. v. Lopez this defendant appealed her drug trafficking conspiracy conviction. She was tried with two co-defendants, which were charged with the same drug conspiracy but the charges against the co-defendants included murder charges. Lopez appealed the denial of her motion for severance, claiming prejudice from having her trial along side the other two.

    Another drug dealer, an associate of the two co-defendants, was apparently heading north from Miami along the Florida turnpike with his wife and two children in the car. The co-defendants were driving on the turnpike at the same time and communicated with each other by cell phone along the way. Both cars stopped near the Ft Pierce exit in the early hours of the morning along the side of the highway. There, the co-defendants robbed the victim drug dealer of 15 kilos of cocaine. The co-defendants drive off with the victim drug dealer’s car, but not before shooting and killing, the drug dealer, his wife and their two children. The two co-defendants were charged with a carjacking, four counts of murder. The murder committed by two co-defendants was particularly ruthless. This crime received much publicity in Miami.

    The federal appellate court outlined the general body of law dealing with joint trials and emphasizing the heavy burden on the defendant to justify separate trials. The general rule on joint trials is that defendants indicted together are usually tried together. That rule is more pronounced in conspiracy cases where the principal is “defendants charged with a common conspiracy should be tried together.” To warrant a severance, a defendant must show compelling prejudice under Rule 14 (a) of the Federal Rules of Criminal Procedure. Compelling prejudice means a joint trial would actually prejudice the defendant and that a severance is the only remedy for that prejudice, such that a jury instruction or any other remedy will not cure the prejudice. The appellate court made this observation about the “prejudice.” “Anything that increases the likelihood of a conviction ‘prejudices’ the defendant in the ordinary sense of the word, but in severance law ‘prejudice’ is not used in the ordinary sense of the word.”

    • He defendant gave these reasons for a severance:
    • Prolonged jury selection;
    • Requirement that they make unanimous agreement for peremptory strikes;
    • Capital charges mean the co-defendants have to bring out irrelevant matters;
    • Hours of medical autopsy and gruesome photos;
    • One of the co-defendants’ attorney conceded to the jury that were as a drug conspiracy and defendant was the head of it.

    The appellate court acknowledged the best argument was that a joint trial allowed for the introduction of evidence that either of the two co-defendants murdered the fellow drug dealer his wife and children. The court agreed that no attorney representing a defendant charged with a crime would want this evidence before a jury at their trial even if the jury is instructed they had nothing to do with it. The appellate court found no prejudice because the trial court repeatedly instructed the jury to consider evidence against only those defendants against whom it is implicated and to assess guilty or innocence separately.
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    The Eleventh Circuit Court of Appeals decided that a district court can limit the issues that will be heard at a defendant’s resentencing. In U.S. v. Willis, the defendant was convicted in federal court of a felony drug trafficking offense and sentenced as a career offender because of his prior convictions. He appealed his conviction to the court of appeals in Atlanta but his conviction was affirmed. After his appeal process was complete, Willis filed a 2255 motion to vacate his conviction arguing, among other issues, that his counsel had been ineffective for failing to challenge his career offender enhancement. The government agreed that he was not eligible for the enhancement, but it did not agree to the several other issues raised in the 2255 motion. The sentencing court denied the 2255 motion except for the career offender issue and directed the probation office to prepare a new presentence investigation report reflecting the fact that Willis was not a career offender. Willis filed objections to certain enhancements the report. These same objections had been raised prior to the first sentencing hearing and had already been denied.

    The Probation Officer responded to those objections and the judge set the sentencing for two days later. The judge found he was not a career offender, but refused to continue the sentencing, refused to hear any arguments challenging the guidelines range, and refused to grant the governments motion for downward departure for cooperating.

    After some effort, the appellate court discerned the issues Willis was appealing. Willis’ brief was apparently less than adequate, judging from the unflattering comments in this opinion. As a result of the failure to raise an appeal from the other 2255 issues, the court found that Willis waived his right to challenge the adverse 2255 rulings. The appellate court decided that the district court did not err by refusing to allow Willis to argue any of his objections, except for the career offender issue.

    The other issue on appeal was Willis’s claim that under §3552(d) his federal criminal sentencing hearing should have been set no less than 10 days from the date his attorney received the Probation Officer’s response to his objections to the Presentence Investigation Report. An attorney for a defendant convicted of a crime in Miami as in any other area can object to the inaccuracies in this report. The court noted that Rule 32(g) requires a 7 day period between the Probation Officer’s response and the sentencing date. Though it was a technical error, it was harmless because the PSR was substantially the same as the version in his first sentencing and the defendant was not prejudiced.
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    U.S. v. Singletary is a classic example of mortgage fraud seen in Miami and other parts of Florida. Singletary was charged with conspiracy to defraud a federally insured bank in violation of 18 U.S.C. §1344 and other federal criminal charges stemming from a scheme to defraud mortgage lenders and the Federal Housing Authority (F.H.A.) which insured mortgages loans issued by the banks. The defendants pleaded guilty and sentenced to federal prison, but they appealed the criminal restitution order, which is the amount of loss caused by their fraud.

    The defendants purchased and repaired homes in need of substantial work to be marketable. After restoring the property the defendants would place the homes on the market. Potential buyers would be referred to mortgage companies controlled by the defendants. The mortgage officers would then assist the potential buyer obtain a mortgage that would be insured by the F.H.A. The F.H.A. would insure a mortgage up to 97% of the sale price as long as the buyer was able to invest a minimum 3% down payment of the price at which the defendants agreed to sell. If the buyer received a portion as a gift, it had to come from a relative or employer, and the lender had to document the gift with a gift letter specifying the nature of the relationship, the source of the funds, and had to be signed by the parties donor and borrower. Of course the defendant’s mortgage brokers committed mortgage fraud by sending bogus gift letters to verify the buyer’s down payment. Other times they created false employment verification letters or provide false “credit explanation” letters to beef up creditworthiness.

    The issue here is the amount of restitution the defendants owed. The sentencing court determined the amount was a loss to the F.H.A. of $3 million in expenses as a result of the 89 foreclosed properties. The defendant objected to the loss determination. The government had the burden at sentencing of establishing by a preponderance of the evidence the amount of the F.H.A. losses and the sentencing court was required to explain its findings with sufficient clarity to enable the appellate court to conduct review.
    At the sentencing, there were obvious credibility problems with loan officers that handled the false gift letter files. These were some of their credibility problems:

    • They could not recall some of the closings
    • They could not say with certainty that some of the gift letters identified were false; and
    • They could not say that the buyers had not received the gift.

    The appellate court ordered a new hearing on the issue of the amount of restitution. It ruled the government failed to meet its burden with respect to each mortgage for which it sought restitution. The sentencing court pegged the loss at $1 million but gave no explanation for how it came up with that estimate. Furthermore, the sentencing court did not identify the particular false loans mortgages that had caused losses.
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    U.S. v Langford is about a politician who went bad. Langford took more than $240,000 in bribes in the form of cash, clothing, and jewelry from codefendant William Blount while serving as a county commissioner in Jefferson County Alabama. Blount ran investment banking firm that specialized in underwriting and marketing municipal bonds. As a commissioner, Langford had the authority to select firms to handle the county’s financial transaction. Blount solicited and received business from the county for his investment firm, handling many of the county’s transactions for general obligation bonds and other county financial transactions. The deals yielded net benefit of about $5.5 million to Blount’s firm. In exchange, Blount gave Langford about $150,000 in cash and $90,000 worth of clothing and jewelry, including buying sprees at expensive clothing and jewelry stores in New York City. This led to multiple charges of bribery, mail and wire fraud, money laundering, and tax fraud.

    The wire and mail fraud charges alleged that Langford’s fraud deprived the citizens of Jefferson County of their right to receive his “honest services,” for which Langford had a fiduciary duty to provide. A violation of the wire and mail fraud statutes include a scheme to deprive another of the intangible right of honest services. According to the Eleventh Circuit, when a public official uses his office for personal gain, he deprives his constituents of their right to have him perform his official duties in their best interest. There was sufficient evidence to show Langford deprived the citizens of honest services by showing his position in the county gave him authority to choose Blount’s firm and he did select the firm which receive millions of dollars in benefits in exchange for cash, and jewelry, without disclosing these valuable items. The court found the evidence sufficient to prove the elements of mail and wire fraud because Langford sent packages containing merchandise purchased for him by Blount to his office in Alabama. Langford caused the use of the wires when Blount used his American Express card to make purchases on Langford’s behalf to further the scheme to defraud the county.

    Langford also challenged several evidentiary rulings.

    He challenged the admission of “eye-catching” gambling winnings contained in his income tax returns, but the returns were admissible to show failure to report the cash or gifts as income. The bank records relating to his credit card were offered to show the special treatment he received in exchange for county business by causing the county to hire the bank as its financial adviser for bond transactions. The Court found the bank records were properly admitted under the business record exception of Rule 803(6) of the rules of evidence.
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    In U.S. v. Barrington, the defendant and some friends at Florida A & M University decided to improve their grades for graduate school applications. They devised a plan to access the school’s internet based grading system using keylogger software, a program which captures every keystroke made on a computer. A codefendant working in the Registrar’s office installed the program on various University computers and managed to capture the usernames and passwords made by school employees as they signed onto their computers. Not only did the defendants change grades, they added credits for courses failed or not taken and changed the residence of non-resident students to qualify them for in-state tuition. Barrington and his friends were indicted on conspiracy to commit wire fraud (18 U.S.C. §1349), fraud using a computer (18 U.S.C. §1030), and aggravated identity theft 18 U.S.C. §1028.)

    The defendant challenged the admission of prior bad act evidence, under to Rule 404(b) of the Federal Rules of Evidence, showing how Barrington had previously changed grades for a coconspirator using forged instructor signatures on University grade change slips. The court applied the following 3-step test:

  • The evidence must be relevant to an issue other than the defendant’s character;
  • There must be sufficient proof so that the jury could find that the defendant committed the extrinsic act; and
  • The evidence must be probative value that is not substantially outweighed by undue prejudice.
    The court found the evidence was probative of intent, and found a basis for the jury to find he committed the extrinsic act and it was not outweighed by unfair prejudice.

    Barrington also challenged the trial court’s limitation on his cross examination of a government witness by preventing him from questioning him about a pending Florida state burglary charge because the charged had not yet been reduced to a conviction. The appellate court found that the cross on the burglary charge would not have presented a different impression of the witness’ credibility because the defendant’s counsel elicited sufficient information from the witness about his possible motive to testify and his personal bias against the defendant to enable to jury to assess his credibility.

    Barrington also claimed the prosecution was on a legally erroneous fraud theory in that changed grades do not constitute a property interest and therefore the Government’s proof did not establish financial deprivation as required under the wire fraud statute. The court rejected the argument, finding FAMU has a property right to the tuition generated by class hours a student registers for and the higher tuition paid by non-resident students.
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    In U.S. v. Ly the defendant was a medical doctor licensed in Georgia to practice medicine and dispense controlled substances to his patients. Ly was charged in federal court with unlawfully dispensing controlled substances by writing prescriptions made “outside the usual course of professional practice and without legitimate medical purpose.” At his arraignment, he requested a court appointed lawyer but this was denied the district court’s probation office determined that Ly had transferred his assets to his wife “to obtain appointed counsel at public expense.” Ly informed the trial court at a hearing that he could not afford a lawyer and would then defend himself pro se. His case proceeded to trial with Ly representing himself. The Government’s case included expert testimony regarding standard prescription practices the regulation of controlled substances, testimony from his patient’s concerning his prescription practices, and testimony from pharmacist who became suspicious of Ly’s practice and stopped filling prescriptions written by Ly.

    At the close of the Government’s case, the district court asked Ly at a side-bar if he intended to testify. The colloquy (or dialogue) with the Ly showed that Ly was unaware that he could testify in a narrative form and that he did not need an attorney to ask him questions. The district court did nothing to correct Ly’s misunderstanding about how he could testify.

    The record showed that Ly chose not to testify because he believed he could not give his testimony without an attorney asking him questions. He believed that his only testimony would come from the Government’s cross examination. The appellate court found Ly was clearly confused and the district court did not clear up his confusion. A criminal defendant has a fundamental right to testify in his defense, and the right to testify is protected only when made “knowingly and intelligently.” When Ly’s misunderstanding of his right to testify became apparent during the colloquy, the district court was required to correct Ly’s misunderstanding by explaining that Ly could testify in a narrative form. By failing to clear up Ly’s confusion, the district court denied Ly his right to decide knowingly and intelligently.

    The Defendant’s confusion about his right to testify made this a case of “exceptional, narrowly defined circumstances” that triggered a district court’s duty to discuss with a defendant his decision whether to testify. The district court’s knowledge of Ly’s confusion required the district court to correct Ly’s misunderstanding. For a defendant represented by counsel, the responsibility falls on counsel to assist the defendant in ensuring that his decision regarding testifying is made knowingly and intelligently. “The district court does not normally engage in a colloquy with the defendant to ensure that the decision was made knowingly and intelligently.”
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