U.S. v. Velez, 586 F.3d 875 (11th Cir. 2009)
On an issue of first impression for the Eleventh Circuit Court of Appeals, the Court held that the plain language of 18 U.S.C.A. § 1957(a) (f) (1) exempts monetary transactions derived from criminal proceeds and used to secure legal representation. In this case, the defendant, an accused Colombian drug leader, paid his legal defense fees with alleged laundered money. The government then indicted the defendant and his two attorneys on one count of money laundering charges. The District Court dismissed Count One, finding that 1957 (f)(1) clearly excludes from its scope, “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” The Government argued that the exemption was nullified by Caplin & Drysdale, Chartered v. United States,491 U.S. 617, 626 (1989). The Appellate Court disagreed finding that Caplin & Drysdale addressed criminal proceeds with respect to the civil forfeiture statute, 21 U.S.C. § 853 and therefore had no bearing on 18 U.S.C. §1957 and one’s representation guaranteed by the sixth amendment.
Archive for the ‘Drug Crimes’ Category
Sixth Amendment guarantee of representation allows defendant to pay legal fees with alleged illegal proceeds.
Monday, January 11th, 2010District court’s unique handling of bench and jury trial at same time deemed appropriate by Eleventh Circuit.
Wednesday, November 25th, 2009U.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.
Guidelines Section 3B1.1 role enhancement as an organizer or leader requires findings to be based on reliable and specific evidence.
Wednesday, November 25th, 2009U.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.
“Serious drug offense” under ACCA, 18 U.S.C. § 924(e), requires court’s examination of prior offense’s statutory definition and fact of conviction, not underlying actual facts, unless ambiguous.
Wednesday, November 25th, 2009U.S. v. ROBINSON, 583 F.3d 1292 (11th Cir. September 30, 2009)
Sentenced to 210 months imprisonment for possession of a firearm by a convicted felon, the defendant appealed and challenged his sentence enhancement under ACCA, 18 U.S.C. § 924(e). Previously, the defendant had been convicted twice for burglary and once for possession of marijuana for other than personal use under Alabama state law. He argued that his prior drug conviction was not a “serious drug offense” so as to trigger the ACCA because the offense charged, by “other than personal use” did not specifically delineate “distribution”. The Eleventh Circuit stated that in determining whether a particular conviction qualifies as a serious drug offense, the court only looks to the statutory definition of the prior offense and the fact of conviction, not the underlying actual facts, unless the judgment of conviction and statute are ambiguous. The Court found the conviction and statute to be unambiguous. Moreover, since the Alabama legislature created separate statutes applicable to marijuana offenses, rather than applying the more general statutes for controlled substance offenses which list possession and distribution as distinct crimes, the court properly interpreted defendant’s prior conviction to include both possession and distribution of marijuana. Thus, the ACCA enhancement was proper.
“Except” clause in firearm statute to prevent consecutive mandatory minimum sentences for multiple firearm offenses, not firearm offense and underlying drug crimes.
Wednesday, November 25th, 2009U.S. v. SEGARRA, 582 F.3d 1269 (11th Cir. September 15, 2009)
The Eleventh Circuit court of Appeals dismissed the defendant’s appeal as barred by the appeal waiver in his plea agreement. Defendant pled guilty to possession with intent to distribute 50 grams or more of crack cocaine, and possession of firearm in furtherance of a drug trafficking offense. The plea barred direct or collateral appeal unless the sentence imposed exceeded the guidelines range determined by the court or exceeded the statutory maximum. The district court sentenced the defendant to 120 months for crack offense and a mandatory 60 month term for a firearm offense, to be served consecutively. The defendant argued on appeal that the imposition of consecutive sentences therefore exceeded the statutory maximum sentence and the applicable guidelines range. However, the Eleventh Circuit held that because the consecutive sentences were mandatory and the term of imprisonment for the firearm offense was set by statute, the sentence imposed did not exceed the statutory maximum permitted or the applicable guidelines range; defendant’s argument on appeal does not fit within any of the appeal waiver exceptions.
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, 2009U.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.
A two-level enhancement was not impermissible double-counting.
Tuesday, August 11th, 2009U.S. v. Demarest, 570 F.3d 1232 (11th Cir. June 10, 2009)
The defendant appealed his conviction and sentence for three counts of money laundering. The court found that the defendant’s physical and mental efforts on the day in question demonstrated that he was not overly intoxicated. Secondly, the jury was entitled to believe that the defendant was predisposed to commit the crime and not entrapped. Lastly, the defendant’s reliance on case law was misplaced and the evidence established that laundered funds were proceeds of illegal drug trafficking.
The District Court did not err in enhancing defendant’s sentence.
The two-level enhancement was not impermissible double-counting as defendant’s violation under Section 1956 was not factored into his base level since the money laundering statutes are not distinguishable with regard to the defendant’s base level. Moreover, defendant’s statements and behavior prove he believed the laundered funds were or were intended to be proceeds of illegal drugs.
Carrying a concealed firearm and escape are not properly considered violent felonies so as to trigger a sentence enhancement under ACCA.
Tuesday, August 11th, 2009U.S. v. Canty, 570 F.3d 1251 (11th Cir. June 11, 2009)
The defendant was convicted of possessing counterfeit federal reserve notes and being a felon in possession of a firearm. The government argued to enhance his sentence under the ACCA (Armed Career Criminal Act). The defendant was sentenced, pursuant to ACCA, to 186 months in prison on each count, to be served concurrently. Case law dictated that carrying a concealed weapon could not be a crime of violence under the Guidelines and the court read the definition of violent felony under ACCA Section 924 to be virtually identical to the definition of crime of violence. Therefore, the defendant’s crimes were considered violent felonies or serious drug offenses to apply under the statute.
The government had the opportunity to offer evidence and seek rulings from the sentencing court, but failed to do so.
The government did not voice any objection to predicate the ACCA enhancements or offer whether the crimes were committed on occasions different from one another. Rather, the government adopted the PSR. Therefore, it was not entitled to a remand to present additional evidence and seek additional findings to support an enhancement when it failed to do so when the initial sentence was imposed.
