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In U.S v. Dean the defendant challenged the constitutionality of a federal prosecution under the statute 18 U.S.C. §1466A(a)(2). The defendant claimed the statute prohibiting production of child pornography is overbroad because it criminalizes materials that are neither child pornography nor obscene and therefore criminalizes materials protected by the First Amendment.

Internet crimes such as this case are commonly prosecuted under Section 1466A(a)(2), which prohibits possession, production or distribution of;
• a visual depiction of any kind, including a drawing, cartoon, sculpture or painting
• that depict an image that is or appears to be a minor engaged in sexual activity and
• “lacks serious literary, artistic, political, or scientific value.”
Under Ashcroft v. Free Speech Coalition a statute is facially overbroad if it criminalizes materials that are neither child pornography nor obscene, in other words if a substantial amount of material is protected speech under the First Amendment. Child pornography is not protected by the First Amendment because it is produced using minors and because the government has an interest in criminalizing the sexual abuse and exploitation of children.

The Eleventh Circuit acknowledges the statute has the potential to be overbroad because it includes material that does not involve actual children. The defendant however could not meet his burden of showing that the statute criminalizes a substantial amount of protected expressive activity.

The defendant was unable to identity protected materials, let alone a substantial number of these materials. The defendant gave as an example the movie “Lolita” (showing scenes of minors engaged in explicit sexual conduct using youthful actors or visual images) but that was rejected by the Court because it possess literary value that takes it beyond the reach o the statute.

The Court concluded that the defendant cannot meet his burden because there are few materials which depict children engaging in graphic sexual conduct and lack serious value, without also qualifying as obscenity. “Because the statute targets only specific, graphic sexual activity and because the statute targets only images that lack serious literary, artistic, political, or scientific value, the category of protected materials which are prohibited by the statute is very narrow.” The Court determined that the protected material prohibited by the statute pales in comparison to the statute’s legitimate sweep.
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In United States v. Naranjo, the defendant’s wire fraud conviction resulted from a multi-million dollar scheme where he solicited investors for a chain of check cashing and pay-day loan stores known as the “Loan Shoppe” by offering high interest rates. The wire fraud statute Title 18 U.S.C. §1341 makes it a federal crime to use the telephone or any other interstate wired device to advance a fraud. It is commonly used federal statute in federal criminal white collar cases. Here Naranjo raised 1.5 million dollars through this fraud. Viewed in a light most favorable to the government, the evidence was sufficient for a reasonable jury to find Naranjo intended to operate a fraudulent scheme.

The evidence showed that money raised did not finance a legitimate business. These were the facts that supported the jury’s finding of a fraudulent scheme:
• The check cashing and payday loan business had no state license;
• The defendant hid his connection to the business by omitting his name on corporate records and license applications;
• He told his salesmen that the business was profitable when it made no profit;
• Only a small portion of investor funds went into expansion of the Loan Shoppe;
• High rates of return were promised yet few if any actually received;
• A majority of investor funds went to debt service and sales commissions without informing investors; and • The defendant personally made over $450,00 from a business that did not generate any profit.
The court of appeals found the evidence supported a finding that it was a ponzi scheme with considerable overhead and large payments to Naranjo.

The concealment money laundering statute prohibits financial transactions conducted for the purpose of concealing unlawfully obtained funds in violation of 18 U.S.C. § 1956(a)(1). Evidence showed three cash withdrawals for large sums of money from the business which occurred contemporaneously with the deposits from victim investors, which supported the concealment convictions. Converting illegally obtained funds into cash was proof of an attempt to hide the source of the funds and the defendant’s connections to them.
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A fundamental principle of criminal law requires any law enforcement officer following an arrest to advise the arrested person of certain Constitutional rights pursuant to Miranda v. Arizona (Miranda warnings.) The police may not question the arrested person about the offense unless Miranda warnings have read to the defendant and those rights have been waived by the defendant. In United States v. Powell, the defendant claimed the arresting officers failed to read a Miranda warning and continued interrogation even though he requested counsel. The defendant filed a motion to suppress in which he sought relief by asking the judge to suppress the incriminating statements made after arrest from being admitted at trial.

The magistrate recommended granting the motion after disbelieving the two law enforcement officers’ account and believing instead the defendant and his stepfather’s account of what took place after arrest. Upon the Government’s objection to the report and recommendation, the district court reviewed the transcript and listened to a recording of the testimony, but did not hold a new hearing. The district court declined to adopt the magistrate’s findings. Later at trial, the defendant moved to reconsider that ruling but the district court denied the motion and gave the government an opportunity to supplement the record with testimony for the purpose of developing the record on appeal.

The appellate court reversed the district court’s denial of the motion to suppress. It found the district court erred in reversing the magistrate without holding a separate hearing. It found the district court erred in rejecting the magistrate’s credibility determination without first rehearing the disputed testimony live and not the recording. The matter was remanded for the disputed testimony to be reheard. Taking evidence after ruling on the motion just to bolster the evidence in the record in preparation of the appeal was not sufficient.
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Alicia Rodriguez pled guilty to a Federal Medicare fraud conspiracy involving 19 million dollars in bogus Medicare claims. In exchange for her cooperation, the prosecutor filed a motion pursuant to §5K1.1 of the Federal Sentencing Guidelines. It is the prosecutor’s discretion to file this motion if and when the prosecutor decides the defendant has provided “substantial assistance” in the investigation or prosecution of another case. Here the prosecutor recommended a 40% sentence reduction from the guidelines while the defendant’s attorney requested a 60% reduction.

The court followed the government’s 40% recommendation but expressed its disapproval with the defendant before imposing sentence. “This is really a disturbing case. She comes to this country as a Cuban refugee seeking freedom from the Communist rule and the first thing she does is she rips off the Government for $19 million on a program that’s designed to help people who have physical disabilities, and to me that’s shocking. That’s shocking.” On appeal, the defendant claimed the court showed biased against her Cuban nationality when he mentioned her nationality in imposing sentence. No objection was raised to this comment at sentencing so the court reviewed it on the basis of plain error. To overcome the plain error review hurdle, the defendant cited two Second Circuit opinions that excuse the failure to make a contemporaneous objection at sentencing to perceived judicial bias because a defendant is understandably reluctant to accuse a judge, who is about to impose sentence, of bias.

The Eleventh Circuit panel rejected the Second Circuit’s plain error review exception when there is no contemporaneous objection to bias at sentencing. Applying the plain error standard, to be reversible the error “must be clear from the plain meaning of a statute or constitutional provision, or from a holding of the Supreme Court or this Court.” It found that the appearance of bias, without any actual bias, is not a constitutional violation. The Court found no actual bias and concluded there was no plain error. The court rejected outright the argument that a defendant should not be required to object for fear of retribution from the judge. In view of the lawyer’s obligation to represent a client zealously, a judge should not be offended by an attorney’s objection that the court is biased against his or her client.
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Federal criminal law makes it a crime to distribute or possess digital images of minors engaged in sexual activity, an offense commonly known as possession of child pornography. According to this case, a person who is identified in the child in a child pornographic image may be considered a victim under 18 U.S.C. § 2259(a) which provided for restitution for victims. Here, the defendant was required to pay restitution for the harm caused to the then-child now adult, by the defendant having viewed the images on the theory that the victim suffers each time it is viewed.

The defendant was convicted of possessing more than 600 images of child pornography on his computer in violation of 18 U.S.C. §2255. The collection included an image of a child known as “Vicky” being subjected to unspeakable abuse at the hands of her own father. Now an adult, Vicky’s identity was confirmed through the N.C.M.E.C. data base, and the government informed her that her image had been found viewed by the defendant on his computer.

At the defendant’s sentencing, the government moved for restitution for Vicky, pursuant to 18 U.S.C. § 2259(a), for the cost of past psychological services and cost of future counseling and therapy. The government offered an expert on the impact of psychological trauma who diagnosed her with the following psychological disorders:
• Post traumatic stress disorder,
• dissociative disorder, and
• depression and
• “opined that Vicky’s knowledge that her images are being disseminated on the Internet causes Vicky to suffer a continuing trauma that he compared to an ongoing slow acid drip.”

The district court ordered restitution finding that she was a victim of the defendant’s possession of child pornography and that “Vicky suffers every time the child pornography containing her image is traded and viewed” and ordered that he pay Vicky $12,500 in restitution. The appellate court upheld the restitution order concluding that Vicky was a victim and that the defendant’s conduct contributed to the “proximate cause” of the victim’s harm. Each time the victim is notified by MCMEC that her image was found on someone’s computer, it exacerbates Vicky’s trauma and emotional distress.
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The Justice Department has directed federal law enforcement to make Medicare fraud a top priority. As a result South Florida has been the a hotbed of Medicare fraud indictments for the past several years. In this Medicare fraud trial, the evidence was sufficient to uphold a jury verdict involving a scheme to give false HIV positive diagnosis and dispensing medicine not medically necessary. Defendants were a doctor and a nurse who worked at an HIV clinic where patients were falsely diagnosed as having HIV positive. Medicare was falsely billed for treatment of WinRho, an expensive drug reimbursable by Medicare at a rate of $4,900 per treatment. The defendants at trial claimed no knowledge of the fraud. They appealed trial and sentencing issues.

Both defendants argued a lack of sufficient evidence to convict. The doctor’s conviction was upheld based on the circumstantial evidence showing she had knowledge of the scheme, altered patient charts, and her presence in the office when “professional” patients screamed for more money. The jury was entitled to draw a reasonable inference of guilt from the evidence and to disbelieve the doctor’s testimony she did not know the treatments were not medically necessary.

Exculpatory tape recorded statement by a codefendant to the defendant was not hearsay though its exclusion was harmless error.

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Federal law makes it a crime for an alien to enter the United States after being deported. In this case the defendant was convicted of the Federal offense of reentering the United States after having been deported. In U.S. v. Garcia, The defendant was not charged until 7 years after he came in illegally. The defendant moved to dismiss the charges claiming that the 5 year statute of limitations had expired.

The facts showed as follows:
• The defendant entered the United States illegally • two years after his illegal reentry, he married a United States citizen
• His wife filed an I-130, the first step for aliens seeking a green card
• About 7 years after she filed the I-130, he was indicted for reentry after deportation.

The federal court of appeals court rejected the statute of limitations argument. It found that there was no evidence Immigration and Customs Enforcement (ICE) knew or should have known of his illegal reentry based on the information provided in the I-130. Under the totality of the circumstances, the appellate court could not find the immigration authorities failed to act with reasonable diligence in investigating the defendant’s status to determine he was the person that was deported.

The court of appeals did reduce the defendant’s sentence by rejecting the enhancement for a prior aggravated assault. It found the prior conviction did not fall under the crime of violence definition. The defendant challenged the sentencing court’s 16-level Sentencing Guidelines enhancement resulting from a finding that the defendant’s prior aggravated assault conviction was a crime of violence.

The court of appeals found that the label given to a prior conviction by the state statute is not dispositive of the question whether to prior offense is a crime of violence. Furthermore, the court examined the statute and found a defendant could be convicted of acting recklessly and not intentionally or willfully. With insufficient evidence to show this prior conviction was an aggravated felony, the defendant’s conviction for assault was therefore not a crime of violence.
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It is a Federal crime to export any firearms outside the United States without of license. When two or more persons agree to commit a Federal offense and take some action in furtherance of the crime, it becomes a conspiracy and is a separate crime. Frazier was convicted in federal district court of the federal crime of conspiracy to export firearms to Canada without a license. He was also convicted of the federal offense of making a false statement in a form to a firearms dealer.

The evidence at jury trial showed he used straw buyers to purchase firearms on his behalf. At trial he claimed in his defense that the identity of the buyer on the ATF form 4473 was not material as both would have been eligible to buy the firearm.

The appellate court rejected this argument finding that falsifying the identity of the actual buyer on the ATF form is material, making this a federal offense. For these reasons the Federal court of appeals found the evidence was sufficient to support a conviction for making false statements on ATF forms used in gun purchases.

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This is one of the rare cases where a confession was thrown out. It commonly happens on television but rarely in real life, especially in federal court where the federal agents are well trained and rarely make mistakes involving Miranda warning. As demonstrated on television police must give warnings commonly known as the Miranda warnings, named after the United States Supreme Court decision Miranda v. Arizona decided in 1964 which required law enforcement to advise every person arrested of certain Constitutional rights:

  • Fifth Amendment right to remain silent
  • Any statements made can be used against the defendant in Court
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Defendant Tommie Huff was convicted of bribery and conspiracy to commit wire fraud for his role in a kickback scheme that involved placing fraudulent orders for Robbins Air Force Base. Wire fraud is a federal crime make it an offense to make a false statement or misrepresentation using the telephone, fax, or computer in an attempt to acquire money or something of value. It is also a federal crime to bribe or take kickbacks from a federal employed to secure a government contract.

The defendant argued on appeal there was insufficient evidence of a single conspiracy because the government failed to prove any interdependence between him and his co-defendant Steve Deason. He argued that the evidence showed there to be multiple independent “hub and spoke” conspiracies with no evidence connecting the two codefendants in a single conspiracy.

The appellate court’s opinion, written by Judge Barkett, rejected this argument and found that all codefendants shared a common goal and worked in concert to defraud the government for personal benefit. The coconspirators abused their position as government credit card holders by placing fraudulent orders with suppliers and all coconspirators personally benefited from the scheme by receiving kickbacks in cash and merchandise. Both Huff and Deason placed orders to the vendors that they knew would not be filled and paid for the orders using government credit cards.

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