White Collar Criminal Defense Lawyer Blog

Published on: November 19, 2018

Co-occupant’s consent to search of the defendant’s bedroom was valid

Jose Luis Morales appealed his conviction and 15 year sentence for one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1). He was arrested after Miami Dade Police Officers conducted a search of the home where Morales lived and found a Rossi .38 caliber revolver and a .22 caliber pistol in the closet of Morales’ bedroom. Morales lived in the house with his girlfriend, their two children, and his girlfriend’s mother. The search took place after the police approached the house while investigating drug activity in the area. Their focus was drawn to Morales and while Morales was outside of his house speaking with officers another officer approached the house and spoke to the Morales’s girlfriend’s mother. She gave consent to a search of the house and a K-9 alerted to the area of the closet in Morales’s bedroom where the firearms were found.

On his appeal Morales argued the Miami federal court erred in denying his motion to suppress the evidence seized in the search of his bedroom, claiming that the mother’s consent was not voluntary. He also argued that even if her consent was voluntary, his Fourth Amendment rights were violated because he was a physically present co-occupant who was intentionally denied an opportunity to refuse entry to the officers and to refuse their request to search.

Published on: November 12, 2018

Life sentence for attempting to give ISIS material support upheld

by The Swartz Law Firm

Harlem Suarez appealed was sentenced to life in prison without parole following his conviction for one count of attempting to use a weapon of mass destruction in violation of 18 U.S.C. 2332 and one count of attempting to provide material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. 2339B. A jury found him guilty following an eight-day trial.

In his appeal he argued the evidence was insufficient to support his conviction for attempting to uses a weapon of mass destruction. The statute has a jurisdictional element, which requires that the offense, in this case an attempt, would have affected interstate or foreign commerce. Suarez argued the government was required to prove a substantial effect on interstate commerce to satisfy the jurisdictional hook. The court of appeals disagreed by holding that the government only had to prove that a de minimis effect on interstate commerce satisfies the jurisdictional element. Because the minimal effect standard is a low bar, the court found the government presented sufficient evidence that a terrorist bombing in Key West would have had at least a minimal effect on interstate commerce.

Suarez also argued the evidence was insufficient to support his conviction to support a foreign terrorist organization. He claimed that Suarez did not coordinate or directly contact an actual foreign terrorist organization because he had contact only with the government informant and undercover agents. The court rejected this challenge finding that it is irrelevant that he did not make contact with ISIS because the law requires only that Suarez directed or attempted to direct his services to ISIS. Suarez’s mistaken believe that the government informant and the undercover agents were actual ISIS agents is not a defense to his attempted crime. He had the requisite intent to coordinate with ISIS and he took substantial steps to do so. The court found there was substantial evidence Suarez knowingly provided material support to a foreign terrorist organization and for attempting to use a weapon of mass destruction.

Published on: November 7, 2018

Arms Control Export Act conviction upheld with sufficient evidence

by The Swartz Law Firm

Wenxia Man appealed her conviction and sentence for conspiracy to export defense articles without a license in violation of the Arms Control Export Act 22 U.S.C. 2778. The conviction arose from her participation in a series of discussion with Xingsheng Zhang, a Chinese operative, and an undercover agent with the Department of Homeland Security, Jerry Liu, about how to purchase and export to china military aircraft engines, a military drone, and related technical data. Although the sale never occurred the United States charged Man with conspiring to violate the Act. In her appeal she challenged her conviction on the grounds that the evidence against her was insufficient to establish a conspiracy and that she was entrapped.

In arguing the government failed to prove that she conspired to violate the Act she first argued that she never entered into a conspiratorial agreement with Zhang or anyone else to obtain purchase or export defense articles. She contended that proposals made by Liu were rejected by Zhang and the parties never advanced beyond mere discussion or ever finalizing an agreement. At best, she argued, it showed that she and Zhang agree to submit inquiries about products and negotiate an agreement but did not have an agreement. The court of appeals rejected this argument finding that Man and Zhang agreed to export unlawfully the items charged in the indictment and that this agreement was not wholly conditioned on Liu’s participation. It found the record supported the reasonable inference that Man and Zhang reached an independent agreement to acquire the engines and drones from any available source and that the duo would have maintained a partnership or joint venture in addition to the one that they proposed to Liu.

Published on: November 5, 2018

No suspicion needed to conduct forensic search of an electronic device at the border

by The Swartz Law Firm

Touset appealed his conviction for three counts of receiving child pornography, transporting and shipping child pornography and possessing a computer and computer storage devise contain child pornography. He was arrested after his arrival on an international flight at the Atlanta Georgia airport, when a Customs and Border Protection agent inspected his luggage and found two iPhones, a camera two laptops, two external hard drives, and two tablets. The agent manually inspected the iPhones and the camera, found no child pornography and returned those devises to Touset.

But the agency detained the remaining electronic devices. A forensic search revealed child pornography on the two laptops and the two external drives. With that information agents obtained and executed a search warrant for Touset’s home in Marietta Georgia which turned up evidence showing Touset purchased thousands of images of child pornography, having sent more than $55,000 to the Philippines for pornographic pictures, videos, and webcam sessions. In some webcam sessions he instructed prepubescent girls to display and manipulate their genitals. He also created an excel spreadsheet that documented the names ages and birthdates of those young girls as well as his notes about them.

Published on: November 2, 2018

Former Serbian prison camp guard convicted of concealing past in his citizenship application

by The Swartz Law Firm

Mitrovic appealed his conviction for unlawful procurement of naturalization in violation of 18 U.S.C. 1425(b) and 8 U.S.C. 1451(e) that arose from charges against him for concealing from immigration authorities his work as a Serbian prison camp guard. When Mitrovic applied for Unites States citizenship, he stated that he had never persecuted anyone on account of their race, religion, national origin, membership in a particular social group, or political opinion. It was eventually discovered that he served as guard who beat prisoners at the Trnopolje prison camp run by the Serbians during their campaign of ethnic cleansing waged against the Bosniak Muslims and other ethnic groups. The government charged Mitrovic with making false statements in his citizenship application.

Prior to trial, his attorney filed motions to depose witnesses in Bosnia who had been in the Trnopolje prison camp. However, upon his defense team’s arrival in Bosnia, they learned that several witnesses refused to be deposed. Most of the witnesses who refused to be deposed had been in the Trnopolje prison camp for longer than those where sere deposed and had originally told Mitrovic’s defense team that they never saw Mitrovich as a guard at the camp. Upon returning to the United States Mitrovic filed a motion to allow the investigator who interviewed the recalcitrant witnesses to testify to what the witnesses said during their initial interviews: that they had been in the camp for an extended period and never saw Mitrovic. He argued that statements should be excepted from the hearsay rule or alternatively the statements should be admissible because not allowing the statements would deprive Mitrovic of his constitutional right to present a complete defense citing Chambers v. Mississippi.

Published on: October 25, 2018

Taking a cell phone for merely recording an incident is a Fourth Amendment violation

by The Swartz Law Firm

The issue here is whether a police officer seizing a cell phone from someone recording an incident violates the Fourth Amendment. In this civil rights appeal, the Martin County Sheriff’s Office Deputy Beatty claiming he was entitled to qualified immunity for seizing the plaintiff’s iPhone after from Crocker after he took photos and videos of a car accident crash scene from where he stood on the interstate grass median. The district court denied his motion for summary judgment and he took this appeal.

Crocker stopped while driving on Interstate 95 in Martin County, Florida when he observed an overturned SUV. Soon after he stopped, emergency personnel arrived but he remained in the interstate median about fifty feet from the SUV. Crocker then took out his cell phone and proceeded to take photos and videos of the scene that included images of empty beer bottles, the overturned vehicle, and firemen. About thirty seconds after Crocker started using his camera, Beatty walked over to him, reached out from behind him without warning or explanation and took the iPhone out of his hand. When asked by Beatty why he was on the scene Crocker explained that he had stopped to assister before first responders had arrived. Beatty told the plaintiff to leave and the plaintiff agreed to but wanted his cell phone back. Beatty replied that the photos and video on the phone were evidence of the state and the plaintiff would need to drive to the nearest weigh station to wait for instruction about the return of his phone after the evidence could be obtained from it.

Published on: October 24, 2018

Trial court should have allowed defense witness to testify

by The Swartz Law Firm

Knowles appealed her convictions for the use of an unauthorized access devise and for aggravated identity theft in violation of 18 U.S.C. 1029 and 1028. She was arrested following a traffic stop in which the car she was a passenger in was stopped for having illegally tinted windows. The officer stopping the car was with agent Tippens of the Department of Labor who was part of a task force investigating identity theft and other crimes. Because the driver was on probation for a state fraud offense, the officer asked for and received consent to search the car. He found four Publix Supermarket money orders each for $500 and money order receipts, along with $1,000 in cash in a compartment. Knowles claimed they were all bought with cash.

Tippens later obtained the surveillance videos from the Publix store where the money order were purchased and matched the purchases shown on the video with the dates times and store numbers reflected on the money order and money order receipts found in the car. The money orders were purchased with prepaid debit cards which were obtained under the names and social security number of two individuals whose identities had been stolen. As a result Knowles was charged.

At the trial the government elicited testimony from Tippens who identified Knowles as the person in the Publix surveillance videos who purchased the money orders with the prepaid debit cards. He based his opinion on his frame-by-frame review of the surveillance videos, his comparison of the individual in the videos to photographs of Knowles and his 20 minute interaction with Knowles during the traffic stop.

Published on: October 16, 2018

Warrantless entry and limited search of a home by officers was justified by the exigent circumstances

by The Swartz Law Firm

In this civil rights action Montanez sued the Volusia County Sheriff’s deputies for the warrantless entries into the plaintiff’s house, the deputies appeal the district court’s denial of their summary judgment motions for a dismissal. In their challenge they claim that the brief searches were justified by exigent circumstances. The warrantless searches here arose when a deputy driving his unmarked car through a neighborhood that had a rash of daytime robberies saw a man behind a house who appeared to be looking around nervously while talking on the cell phone. He saw a second man approach the first man and begin huddling with the first man. The officer was convinced they were planning a break-in of the house.

Officer called for backup and when backup arrived they approached the men and handcuffed them. One of the deputies, Raible, entered the back door. Without crossing the threshold he leaned into the doorway and announced he was with the sheriff’s office and directed anyone in the house to come out.

After searching the two individuals they found two kitchen knives they believed were used to pry open the doors after having seen what they believed were fresh marks on the door jam. When additional officers arrived they decided to enter the home a second time to look for additional perpetrators or potential victims. The second entry was the first into the homes interior and which the officers described as a sweep, which lasted 4 minutes. During the second sweep the officers saw in plain view what they believe to be marijuana and drug paraphernalia.

Published on: October 12, 2018

Bribery conviction upheld while last minute defense rejected

by The Swartz Law Firm

Defendant Whitman started a trucking company called United Logistics. To increase business and profits he bribed three employees of the federal Defense Logistics Agency to steer transportation contracts his way. Whitman was convicted of federal crimes including bribery, wire fraud, and obstruction involving government contracts and took this appeal.

The evidence at trial showed that for about four years Whitman’ scheme defrauded the United States of more than $15 million by bribing three employees of the Defense Logistics Agency on a Marine Corps base to use his trucking company to ship military equipment around the country.

Because the Department of Defense hired an outside company to book shipment carriers, the four schemers devised shipment requirements that all but guaranteed that United would receive assignments. Yet Whitman rarely if ever satisfied the special requirements the Defense Logistics Agency imposed. Furthermore, Whitman’s company only owned two trucks and his assistant would have to hire other trucking companies to handle the shipments he contracted with the Defense Department.

Although the Defense Logistics Agency employees never discussed with each other the specifics of their individual arrangements with Whitman, they knew about the criminal conduct of their coconspirators. Whitman told the others that McCarty was working for him and that he was paying McCarty to get him as many loads as possible. One of the coconspirators was McCarty’s supervisor and he frequently reviewed McCarty’s work and had identified fraudulent activity without taking any corrective measures.

Published on: October 11, 2018

No suppression of evidence seized during a warrantless search incident to arrest even though the officers violated the knock and announce rule

by The Swartz Law Firm

Defendants Maxi and Bland appealed their convictions for conspiracy to possess with intent to distribute a controlled substance, possession with intent to distribute a controlled substance, possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon. Their charges followed their arrest at 132 N.E. 64^th Street in Miami and the subsequent search incident to arrest at the property. Subsequently a, search warrant was issued and wiretaps were authorized.

Defendant Maxi challenged the search and seizure of drugs from the apartment that took place before the search warrant was issued. The trial court denied the motion and Maxi appealed. As to the standing issue the court found he did have standing to challenge the search because he rented the apartment and had a reasonable expectation of privacy in the duplex.

The next challenge raised concerning the search was that the police illegally entered the curtilage of the duplex when 10 officers surrounded the building at night one with his gun drawn. The government responded that the entry was permissible under the “knock and talk” Rule. The court rejected the knock and talk argument because the rule implies that the police have an owner’s implied permission to approach a home and this was not the case here where. the officers here breached the curtilage of the duplex by many going through a gate in the fence and four or five approaching the door and the rest taking up tactical positions around the exterior. But the constitutional violation did not result in the production of any evidence and there was no evidence to suggest that anything would have turned out differently if a proper knock and talk have been done. The court also upheld the district court’s finding that Maxi had opened the door voluntarily.