Posts Tagged ‘forfeiture’

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 »

The defendant was not entitled to Franks hearing.

Monday, July 27th, 2009

U.S. v. Valencia-Trujillo, 2009 WL 1929157 (11th Cir. July 7, 2009)

The defendant was convicted of several drug and money laundering crimes after being extradicted to the U.S. from Colombia in 2002. He was sentenced to 480 months imprisonment and to forfeit $110 million.  The Fourth Amendment does not apply to actions against foreign citizens on foreign soil. The Supreme Court has explained that a violation of the fourth Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.

The case did not warrant reversal.

The Court of Appeals stated that the defendant points out that he put into evidence handwritten notes identifying the owners of the cocaine aboard both vessels and that he was not one of them. Yet other evidence existed from which the jury could find defendant responsible for the cocaine aboard those vessels. And, again, there were three other predicate acts anyway.

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

A person who alters records that have been subpoenaed by a grand jury obstructs an investigation of Medicare fraud.

Friday, July 3rd, 2009

USA v. Hoffman-Vaile, No. 07-12629 (11th Circuit USCA)

The defendant, a dermatologist from Florida, appeals her convictions and sentences on charges of health care fraud, filing false claims, and obstruction of justice. The Defendant was billing Medicare at an aberrant rate under a billing code for an unusual and complicated procedure. It was determined that from 1993 through 1999, the defendant billed under this particular code more often and for greater amounts than under any other billing code. When contacted by the private contractor for Medicare, the defendant was asked to provide photographs that corresponded with the surgeries billed for. The defendant, after many chances, did not comply.
In 2002 the Department of Health and Human Services obtained a federal search warrant for patient files with the suspect billing code and seized over 3,000 files from the defendant’s office. However, the Department was unable to locate about 300 files.
In 2003, a federal grand jury issued a subpoena that directed the defendant to produce the missing files. The defendant produced 185 of the missing files but most of the records lacked the requisite photographs. The defendant’s attorneys later produced a box of loose photographs to the government.
The defendant was indicted in July 2005 on 44 counts of health care fraud, 44 counts of filing false claims, and one count of obstruction of justice-she instructed her employees to remove photographs from the subpoenaed files. The defendant was sentenced to 60 months of imprisonment for each fraud count and false claims count, to be served concurrently, and 18 months imprisonment for obstruction.
The 11th Circuit Court of Appeals affirmed the defendant’s convictions and sentences, but vacated and remanded the forfeiture money judgment for further proceedings.

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Posted in Search Warrant, Search and Seizure, Sentencing Guidelines, sentence enhancement | No Comments »