Archive for the ‘Uncategorized’ Category

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District court erroneously dismissed first indictment containing error and sentenced defendant on plea to second indictment, violating the double jeopardy clause.

Wednesday, September 30th, 2009

US v. McIntosh, 2009 WL 2611294 (August 27, 2009)

The defendant pleaded guilty to an indictment alleging drug and firearm charges and the district court accepted the plea. However, before the defendant was sentenced, the government realized that the wrong date of offense was alleged in the indictment. It, therefore, secured a second indictment from the grand jury with the correct date. The defendant moved to dismiss this second indictment as barred by the Double Jeopardy clause, but the district court denied this motion. The defendant conditionally pleaded guilty to the second indictment. The district court then dismissed the first indictment, accepted the plea on the second, and sentenced the defendant to 120 months imprisonment. On appeal, the Eleventh Circuit determined that the defendant’s first plea, accepted unconditionally by the district court, was a conviction and jeopardy had attached therefore the second indictment for the same offense violated the Double Jeopardy clause. The appellate court found that the district court erred when it denied the defendant’s motion to dismiss the second indictment. Finding that the error in the original indictment was one of form, not substance, and thereby not fatally defective, the Court vacated the defendant’s judgment of conviction and remanded it back to the district court with instructions to dismiss the second indictment.

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Posted in Jurisdiction, Procedure, Resentencing, Uncategorized | 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 »

Carrying a concealed firearm and escape are not properly considered violent felonies so as to trigger a sentence enhancement under ACCA.

Tuesday, August 11th, 2009

U.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.

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Posted in Drug Crimes, Pre-Sentence Investigation Report, Sentencing Guidelines, Uncategorized, sentence enhancement, upward variance | No Comments »

The defendant’s conviction did not violate his right to keep and bear arms under the Second Amendment.

Wednesday, July 22nd, 2009

U.S. v. Tagg, 2009 WL 1856803 (11th Cir. June 30, 2009)

There was substantial evidence to support a reasonable jury conclusion that defendant intentionally facilitated codefendants’ unlawful possession of pipe bombs.

The defendant was convicted of aiding and abetting the unlawful possession of firearms, specifically, unregistered pipe bombs. He argued that he was only a spectator, however the co-defendant’s testimony was corroborated by an officer and agent and showed that the defendant knew that the codefendants’ made pipe bombs in his garage. This established that the defendant had the requisite mens rea.

The defendant’s conviction did not violate his right to keep and bear arms under the Second Amendment.

The court held that the pipe bombs at issue were not protected by the Second Amendment, as the rights given are not unlimited. Unlike handguns, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes.

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Posted in Uncategorized | No Comments »

United States v. Padilla, Defendant-Appellant Brief for Adham Amin Hassoun (Declassified)

Wednesday, July 8th, 2009

United States v. Padilla

Kenneth M. Swartz, Esq. is one of the attorneys representing  Adham Amin Hassoun in the appeal of his conviction and sentencing.  Mr. Hassoun, along with Mohamed Youssef, Kifah Jayyousi, Kassem Daher, and Jose Padilla, was found guilty of  1) conspiring within the U.S. to commit acts of murder, maiming, or kidnapping abroad; 2) by providing material support to carry out a conspiracy to murder, maim, or kidnap abroad; and 3) providing material support knowing and intending that it be used to carry out a conspiracy to murder, maim, or kidnap abroad.

Mr. Hassoun was sentenced to 188 months imprisonment and is currently incarcerated.

Brief of Defendant-Appellant Adham Amin Hassoun

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Sufficient evidence established that defendant’s pipe bombs were designed as weapons.

Tuesday, July 7th, 2009

United States v. Spoerke, 2009 WL 1424042 (C.A.11 (Fla.))

The defendant was convicted of conspiracy to unlawfully make destructive devices, unlawfully making one or more destructive devices, and possessing unregistered destructive devices at two different locations.  The defendant argued that the US failed to prove the devices were designed to be used as weapons. To be a destructive device under the National Firearms Act, the critical inquiry is whether the device, as designed, has any other value other than as a weapon. The defendant’s devices were destructive devices even if they contained no additional projectiles, because they have no social value.

The defendant was not entitled to a sentence reduction for acceptance of responsibility; and the imposition of a 44-month sentence did not amount to an unwarranted sentencing disparity.

The defendant challenged the calculation of his guidelines and the reasonableness of his sentence. Where a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse, he has not accepted responsibility and is not entitled to a reduction. Therefore, when the district court imposes a sentence within the advisory Guidelines range, it is ordinarily expected to be reasonable.

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Posted in Motion to Suppress Evidence, Sentencing Guidelines, Uncategorized, downward variance, sentence enhancement | No Comments »

Special condition of supervised release that the defendant report after deportation was upheld.

Monday, April 27th, 2009

U.S. v. GUZMAN, 558 F.3d 1262 (11th Cir. 2009)

Guzman was sentenced with a special condition of supervised release that if he is deported he shall contact probation with in 72 hours of his arrival to provide his current address in Mexico. The court found this condition was reasonably related to the requirements of 18 U.S.C. §3583(d) and did not involve a deprivation of liberty.

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Posted in Uncategorized | No Comments »

In a Sixth Amendment challenge to the racial makeup of the venire, the defendant was unable to show a lack of fair and reasonable representation of the venire.

Monday, April 27th, 2009

U.S. v. CARMICHAEL, 2009 WL 539953 (11th Cir. March 5, 2009)

The defendant was indicted for conspiracy to distribute over 3,000 kilograms of marijuana and with conspiracy to launder the proceeds. In this appeal the defendant challenged the venire summoned to hear his case under the Jury Selection and Service Act of 1968 (JSSA) 28 U.S.C. § 1861 et seq. and the Sixth Amendment. The issue arose from a previous problem in the selection process in which jurors who chose to defer jury service are placed back in the summons pool, making the total pool of summoned jurors disproportionately white. (Jurors who deferred are two to one white.) A new system was devised to erase the disproportion, but apparently a new jury administrator accidentally violated the new system, creating a disproportion for the pool from which the defendant’s trial was drawn. The court found no violation of the JSSA. As for the Sixth Amendment claim, a prima facie violation of the fair cross section requirement requires the defendant to show: (1) the group alleged to be excluded is a distinct group in the community, (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Because the defendant could not show a lack of fair and reasonable representation, his claim was denied.

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Posted in Jury Selection, Sentencing Guidelines, Uncategorized | No Comments »

No Ex Post Facto violation where statute criminalizes failure to register and not prior travel.

Monday, April 27th, 2009

U.S. v. AMBERT, 2009 WL 564977 (March 6, 2009)

The defendant was indicted for failing to register as required by the Sex Offender Registration and Notification Act. (SORNA) The Court rejected the defendant’s argument that his travel in interstate commerce occurred before the Attorney General determined that the SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders and therefore did not subject him to criminal liability for failing to register. The Court found the defendant traveled after February 28 and his violation was a failure to register which in his case occurred after February 28.

The Court also denied other Constitutional challenges.

The Court rejected a substantive due process challenge to the SORNA statute finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the nation’s history and applying the rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.

The Court also found that the registration requirement falls within the jurisdiction of the Commerce Clause. The Court found that when a sex offender travels from one state to another he is an instrumentality of interstate commerce.

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Posted in Sex Offender Registration, Uncategorized | No Comments »

Speedy trial delay warranted a dismissal without prejudice and not with prejudice.

Friday, April 24th, 2009

U.S. v. KNIGHT, 562 F.3d 1314 (11th Cir. March 31, 2009)

After the car Mr. Knight was riding in as a passenger was pulled over, a police officer saw him place a gun on the floor boards. He was arrested on state charges. While still state custody he was indicted by a federal grand jury on September 29, 2005, for possession of the firearm by a convicted felon. A federal detainer was lodged against him to hold him in the event he made bond. He was visited by ATF officers in the county jail who advised him of the pending investigation. Knight made some incriminating statements and did not ask for an attorney. He was transferred to federal custody where he pled not guilty. The district court granted a speedy trial claim but dismissed without prejudice. As to the appeal from the district court’s order dismissing “without prejudice” the Court applied the factors and found the district court did not abuse its discretions.

The seizure of evidence was found reasonable based on initial stop of the driver which led to the resulting seizure from the defendant.

The Court upheld the denial of the motion to suppress evidence seized in the stop. It found the initial stop of the car was valid because the driver was seen without a seat belt on. The officer had probable cause to stop the car, and the officer was entitled to ask the driver to step out the car. He had reasonable suspicion to pat down the driver and the officer smelled marijuana and alcohol.

The denial of the motion to suppress statements.

The Court found that the prior invocation of rights in the state case did not apply to the federal case. Statements made to the ATF were admissible.
The district court committed clear error for failing to reduce Knight’s sentence for time spent in state custody for obstruction of justice.

Where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the sentencing guidelines provide that the sentence include a credit for a period served in state custody for the obstruction case. The government conceded the error because the conduct that was used to enhance his federal sentence was related to the state conviction and the BOP would not give credit for that time.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure, Search incident to arrest, Sentencing Guidelines, Uncategorized, sentence enhancement | No Comments »

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