Archive for the ‘Conspiracy’ Category

Even after third remand, district court refuses to sentence defendant to term of imprisonment and insists on probation.

Thursday, February 4th, 2010

U.S. v. Livesay, 587 F.3d 1274 (11th Cir. 2009)

Giving new meaning to the phrase “some guys have all the luck,” this case involves a defendant who, in 2004, pled guilty to conspiracy to commit wire fraud, securities fraud, and falsifying books and records; falsely certifying financial information filed with the SEC; and a forfeiture count. At sentencing, the district court considered the PSI, which recommended a sentence from 78 to 97 months, 2 to 3 years of supervised release and a fine range of $12,500 to $1million and then granted the government’s motion for a downward departure and imposition of 60 months imprisonment. However, after the recommendations, the judge sentenced the defendant to 60 months of probation.

The government appealed and the Eleventh Circuit Court reversed, holding the district court failed to state reasons for its extreme downward departure. At the resentencing, the same district court judge imposed the same sentence as before. Again, the government appealed and the appellate court reversed, finding both the district court’s departure and the sentence imposed unreasonable given the defendant’s role in a massive fraud scheme.

The defendant filed a writ of certiorari and the Supreme Court granted the petition, vacated the appellate decision and remanded for reconsideration with Gall v. United States, 552 U.S. 38 (2007). At the second resentencing, the original judge recused himself. The new assigned judge agreed with the sentencing range of 78 to 97 months and granted the government’s 5k1 motion, yet only imposed 5 years of probation.

The government appealed for the third time and the appellate court, considering Gall, and the §3553(a)(2) factors, reversed, stating “only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute”. To be continued.

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Posted in Conspiracy, Resentencing, downward variance | No Comments »

District court’s unique handling of bench and jury trial at same time deemed appropriate by Eleventh Circuit.

Wednesday, November 25th, 2009

U.S. v. CHAVEZ, —F.3d—2009 WL 3320314 (11th Cir. October 16, 2009)

Mr. Galvan Chavez, one of nine defendants charged in a nineteen count indictment, among other challenges, argued on appeal that the district court denied his right to a fair trial when it denied his motion for a severance from the four defendant’s who proceeded to trial alongside him. Mr. Chavez pled not guilty to all charges and was convicted of all charges. However, the four co-defendants plead guilty to all counts, reserving their right to a bench trial regarding the quantity of contraband alleged in the drug conspiracy, the central offense charged in Count one of the indictment.
Presented with a unique situation, the district court ordered that each defendant, with respective counsel, be present for all phases of the trial; it instructed the jury that all defendants were charged in Count 1 but did not tell the jury that the four co-defendant’s entered guilty pleas on Count 1; and it instructed the jury that they were to consider their verdict only as to Mr. Galvan Chavez.
The appellate court reviewed the district court’s denial of Mr. Chavez’ motion for severance and found that it was not supported by any theory of relief nor did it prove specific and compelling prejudice, but rather argued that Mr. Chavez might have had a better chance of acquittal if the cases were severed. The appellate court also affirmed the district court’s rulings on Mr. Chavez’ other contentions as well as upheld the sentences for the four co-defendants.

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Posted in Conspiracy, Drug Crimes, Jury Instructions, Right to fair trial | No Comments »

Guidelines Section 3B1.1 role enhancement as an organizer or leader requires findings to be based on reliable and specific evidence.

Wednesday, November 25th, 2009

U.S. v. MARTINEZ, 584 F.3d 1022 (11th Cir. October 5, 2009)

The Eleventh Circuit Court of Appeals vacated the sentence and remanded the defendant’s case back to the district court for clear error based on its determination that the defendant was subject to a Section 3B1.1 role enhancement as an organizer or leader with respect to his conviction for conspiring to distribute and to possess with intent to distribute 100 kilograms or more of marijuana. The defendant pleaded guilty to the one count indictment of the above mentioned offense and admitted to having “orchestrated” weekly mail shipments of marijuana from Texas to Central Florida. At sentencing, the government relied entirely on the PSI report, recommended the role enhancement and characterized the entire conspiracy as the defendants’. The defendant objected to each finding that argued for the four-level enhancement and renewed those objections at the sentencing. However, the district court rejected the defendant’s objections, adopted the PSI findings, and sentenced the defendant to 78 months imprisonment.
On appeal, the defendant argued that the government failed to meet its burden by preponderance of the evidence that the defendant exercised control, influence, or decision making over another participant in the conspiracy. The court found that the government failed to establish the disputed fact or any of the essential factual statements in the PSI, nor did it establish any of the seven factors identified in Comment Four of Section 3B1.1: 1)decision making authority, 2) nature of participation, 3) recruitment, 4) larger share in profits, 5) degree of participation in planning and organizing, 6) nature and scope of the offense, and 7) the degree of control and authority exercised. The court instructed the district court to base its findings on reliable and specific evidence rather than conclusory language in the PSI and sparse evidence.

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Posted in Conspiracy, Drug Crimes, Pre-Sentence Investigation Report | No Comments »

Unsolicited private search does not constitute “search” under Fourth Amendment as long as search is confined to same scope as initial private search.

Wednesday, November 25th, 2009

U.S. v. GARCIA-BERCOVICH, 582 F.3d 1234 (11th Cir. September 10, 2009)

Appealing his convictions for both conspiracy to distribute and possession with the intent to distribute at least 100 kilograms, but less than 1000 kilograms of marijuana, the defendant argued that there was insufficient evidence to establish his knowledge or awareness that there was marijuana contained in the package seized and that the district court erred when it denied his motion to suppress because the government improperly expanded the search. However, the appellate court found that sufficient evidence did exist to support the defendant’s knowledge or awareness because the defendant made multiple trips to pick up packages from an unknown source, he had prior convictions for marijuana importation, he acted with “deliberate ignorance” regarding the existence of contraband, and he attempted to evade the police when caught. The court then examined the legality of the motion to suppress and found no error because as long as the search was confined to the same scope as the initial search, once one box was opened permissibly, the others could also be searched as part of same package.

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Posted in Conspiracy, Drug Crimes, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure, due process | No Comments »

Promotional money laundering and Concealment money laundering are two separate offenses that do not require a special verdict form or a specific unanimity instruction to the jury.

Tuesday, September 8th, 2009

U.S. v. Felts, 2009 WL 2568362 (August 21, 2009)

The defendant was convicted of conspiracy to commit money laundering, money laundering, and possession of a firearm by a convicted felon and was sentenced to 210 months imprisonment. Appealing his conviction and sentence, the defendant contended that the district court improperly instructed the jury on the money laundering offenses because promotional and concealment money laundering are two separate offenses and should not have been submitted to the jury as a single charge. The Eleventh Circuit Court of Appeals affirmed defendant’s conviction and sentence but specifically addressed the propriety of the jury instructions, reviewing for plain error. The Court found minimal distinction between using money to promote unlawful activity and using it to conceal or disguise unlawful activity, therefore it was unnecessary to instruct a jury to unanimously agree to which mental state the defendant possessed, i.e. there was no error, plain or otherwise.

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Posted in Conspiracy, Jury Instructions, Uncategorized | No Comments »

Bahamian wiretap did not shock the judicial conscience.

Monday, July 20th, 2009

U.S. v. Emmanuel, 565 F.3d 1324 (11th Cir. April 21, 2009)

The defendant, a Bahamian citizen, was arrested in 2006 and charged with conspiring to import cocaine into the U.S.; attempting to import cocaine into the U.S.; possessing with intent to distribute cocaine while on board a vessel of the U.S.; and two counts of importing cocaine into the U.S. The court determined that the “shock he conscience” standard was meant to protect against conduct that violates fundamental international norms of decency. As a Bahamian citizen, the defendant was not entitled to protections under the Fourth Amendment as he had no previous significant voluntary connection with the U.S.

The District Court did not abuse its discretion in failing to declare a mistrial or giving a curative instruction.

A government witness stated that he knew the defendant from signing in as a condition of his bail. The defendant argues that this statement prejudiced his rights. The court held that, in light of the substantial evidence against the defendant, it is unlikely that, but for the reference to his condition of bail, the outcome of the trial would have been different.

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Posted in Arrest Warrant, Conspiracy, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

The defendant’s 40 year sentence was reasonable.

Monday, July 13th, 2009

United States v. Covington, 565 F.3d 1336 (11th Cir. 2009)

The defendant was convicted of conspiracy and using interstate facilities with the intent that a murder for hire occur, and for being a felon in possession of a firearm, to which he plead guilty. He was sentenced to a total of 480 months on three counts with time running concurrently and consecutively. The defendant appealed his conviction and sentences.

The district court did not abuse its discretion in admitting the testimony of defendant’s ex-girlfriend describing how he beat her, the handgun that he threatened her with during the assault, and his jail correspondence with her concerning the assault.


The defendant contended that the above evidence was improper propensity evidence used to portray him as a desperate and violent man who might arrange a murder for hire. However, the court ruled that the ex-girlfriend’s testimony was integral to the story of the crime and proved motive; and that the evidence of domestic abuse, especially in a case of murder for hire, that shows key abusive episodes, has significant probative value and any prejudice flowing from it is not unfair.

The defendant “used” a facility of interstate commerce, within the meaning of the federal murder-for-hire statute, when he answered a telephone and conversed on it; and the defendant’s use of the phone satisfied the federal statute for murder for hire even though the intended hit who called from out of state was an FBI informant.


The defendant claimed that the government presented insufficient evidence to prove the element of “use of interstate facilities” under 18 U.S.C. Section 1958. The court ruled that the defendant’s “use” of the phone system was sufficient (as answering and conversing on a telephone is “active employment”) to satisfy the interstate facilities element of the statute because the informant lived in Virginia, out-of-state, and was solicited repeatedly in Virginia by one of the defendant’s co-conspirators before he even became an informant. An interstate scheme was underway well before the FBI got involved. Also, there were plenty of other interstate facilities used and plenty of activities that crossed state lines.

The District court did not err in applying the Armed Career Criminal Act in sentencing the defendant.

The defendant argued that one of his three previous offenses was constitutionally invalid for lack of effective assistance of counsel and that he was absent from his own plea colloquy. However, the defendant did not deny that he had counsel in the previous battery case and he was present at the plea hearing before his conviction. Further, defendant’s guilty plea in this case, possession of a firearm, listed his three prior felonies for armed possession of cocaine, battery in a detention facility, and robbery, and alleged that he qualified for ACCA. His knowing and informed plea here amounts to an admission that the ACCA correctly applied to his case.

The District court did not err in grouping the convictions for murder for hire and conspiracy for sentencing purposes and considering the weapons possession conviction separately.

The defendant argued that the grouping was improper under Guidelines Section 3D1 and resulted in a base offense level of 37 rather than 36, which converted his range of 324 to 405 months into 360 months to life. The court found that Counts 1 and 2 involved the same victim and were part of a common criminal objective and therefore properly grouped together. Count 3 was a simple felon possession charge and were not part of the same plan or scheme and did not share the same criminal objective.

The defendant’s 40 year sentence was reasonable.

The defendant challenges his sentence as manifestly unjust. The court rejects this contention, reviewing the imposition of a consecutive sentence only for abuse of discretion. The court states that once the Section 3553(a) factors are considered, the only limitation on running sentences consectutively is that the resulting total must be reasonable, and ordinarily a sentence within the advisory guidelines range is reasonable.

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Posted in Conspiracy, Sentencing Guidelines | No Comments »

A subject matter jurisdictional question is not waived by a guilty plea.

Monday, May 4th, 2009

U. S. v. BETANCOURTH, 07-14710, (January 13, 2009)

The defendant pled guilty to conspiracy to possess with intent to distribute five kilograms of cocaine and to possession with intent to distribute five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. § 70501.

Prior to the plea, the defendant moved to dismiss the indictment arguing that the government could not prosecute him because the Equadorian government had not consented to the exercise of jurisdiction over the Equadorian vessel which the United States government had seized. The district court found that Ecuador did consent to the United States’ exercise of jurisdiction.

On appeal, the Eleventh Circuit determined that because the defendant entered an unconditional plea, this ordinarily would have waived the issue, however a subject matter jurisdiction challenge that can not be waived by a guilty plea. Nevertheless, the Court found the district court was correct.

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Posted in Conspiracy, Jurisdiction | No Comments »