PRE & POST CONVICTION LAW PUBLICATION

1. CONSTRUCTIVE AMENDMENT OF AN INDICTMENT

A constructive amendment occurs where “the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.” United States v. Malloy 568 F.3d 166, 177-78 (4th Cir. 2009) (quoting United States v. Randall, 171F.3d 195, 203 (4th Cir. 1999)). When the government, through its presentation of evidence or its argument, or the district court, through its instructions to the jury, or both, broadens the baseD for conviction beyond those charged in the indictment, a constructive amendment occurs. Id, at 178; See United States v. Redd, 161 F.3d 793, 795 (4th Cir.1998); United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (en banc). When a constructive amendment is found, the error is fatal and reversible per se even when not preserved by objection. United States v. Whitfield, 695 F.3d 288, 307 (4th Cir. 2012); Floresca, 38 F.3d at 714.

Not all differences between an indictment and the proof offered at trial or the jury instructions rise to the “fatal” level of a constructive amendment. See Malloy 568 F.3d at 178 (citing Randall, 171 F.3d at 203). Short of a constructive amendment, a mere variance “occurs when the facts proven at trial support a finding that the defendant committed the indicted crime, but the circumstances alleged in the indictment to have formed the context of the defendant’s actions differ in some way nonessential to the conclusion that the crime must have been committed.” Whitfield, 695 F.3d at 308 (quoting Floresca, 38 F.3d at 709). When different evidence or jury instructions are presented at trial but do not alter the crime charged in the indictment, a mere variance occurs. Randall, 171 F.3d at 203. Such a variance “does not violate a defendant’s constitutional rights unless it prejudices the defendant either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense.” Whitfield, 695 F.3d at 308 (quoting United States v. Ashley, 606 F.3d 135, 141 (4th Cir. 2010). If the “indictment provides the defendant with adequate notice of the charges against him and is sufficient to allow the defendant to plead it as a bar to subsequent prosecutions, a variance in proof at trial will not prejudice the defendant.” Malloy 568 F.3d at 178 (quoting Redd, 161 F.3d at 795-96).

However, when the government chooses to specifically charge the manner in which the defendant’s statement is false, the government should be required to prove that it is untruthful for that reason. To allow otherwise would permit the jury to convict the defendant on a basis broader than that charged in the grand jury’s indictment. Hoover, 467 F.3d 496, 502 (5th Cir. 2006) (citing Stirone v. United States, 361 U.S. 212, 219 (1960)).

In Hoover, the defendant was convicted of making a false statement to a federal agent in violation of 18 U.S.C. § 1001. Id, at 497. The indictment alleged, inter alia, that Hoover, “did knowingly and willfully make fictitious and fraudulent material statements and representations…during the course of an interview being conducted by [the FBI]” when he “stated and represented that only one person had complained of ‘double flooring’ of vehicles…when in truth and in fact [Hoover], then and well knew that more than one individual had told him about the ‘double flooring’ of vehicles…” Hoover, 467 F.3d at 498. In its instructions, the district court informed the jury that it could convict Hoover if it found that he “stated that only one person had complained of double flooring of vehicles and that such statement was intentionally false.” Hoover, 467 F.3d at 500.

The defendant objected to the instruction, arguing that replacing the “truth and in fact” clause of the indictment with a generic intent instruction impermissibly broadened the factual bases on which the government could prove that he knowingly made a false statement, thereby constructively amending the indictment and violating his Fifth Amendment right to a grand jury indictment. Hoover, 467 at 500-01. The Fifth Circuit agreed and reversed the false statement conviction and remanded for a new trial because the government could have sustained a conviction by showing that Hoover knew that his statement was false for any reason, rather than being limited to the reason provided in the indictment, thereby constructively amending the defendant’s indictment. Hoover, 467 F.3d at 502. The fact that Hoover was charged under a different statute than in the instant case does not render the Hoover decision inapplicable. See United States v. Chambers, 408 F.3d 237, 247 (5ht Cir. 2005) (reversal of conviction for being a felon in possession of ammunition where indictment charged possession of whole ammunition “in or affecting commerce” and jury was allowed to convict based on the travel of component parts); United States v. Adams 778 F.2d 1117, 1123 (5th Cir. 1985) (reversal of conviction for making a false statement and providing false identification in connection with the purchase of a firearm where indictment charged using a false name but jury allowed to convict based on use of a false address).

A constructive amendment to the indictment resulting from the district court’s jury instructions is per se reversible error. Stirone v. United States;United States v. Behety, 32 F.3d 503, 308 (11th Cir. 1994). A constructive amendment to an Indictment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment. United States v. Starke 62 F.3d 1374, 1389 (11th Cir 1995) quoting United States v. Lignarolo, 770 F.2d 971, 981 (11th Cir. 1985). Only a grand jury can broaden the charges in the indictment once it is returned.

2. ABUSE OF TRUST GUIDELINE ENHANCEMENT

Sentencing and reviewing courts must determine whether a defendant occupied a position of trust that justifies the 3B1.3 upward adjustment by assessing the defendant’s relationship to the victim of the crime. United States v Williams, 527 F.3d 1235 (11th Cir. 2008). This guideline applies only where the defendant has abused discretionary authority entrusted to the defendant by the victim. United States v. Garrison 133 F.3d 831, 837 (11th Cir. 1998), United States v. Jolly, 102 F.3d 46, 48 92nd Cir. 1996); United States v. Walker, 490 F.3d 1282, 1300 (11th Cir. 2007). The defendant must be in a fiduciary relationship with the victim to apply this enhancement. In cases where statutory reporting requirements are the only connection between the defendant and the government agency that is the victim, this connection is insufficient to show a fiduciary relationship necessary for a 3B1.3 adjustment. In Garrison the Eleventh Circuit held that while the government may be the victim in a Medicare fraud scheme, an abuse of trust adjustment was unjustified because the defendant ‘did not occupy a sufficiently proximate position of trust relative to Medicare” Id. at 841. “Statutory reporting requirement do not create a position of trust relative to a victim of the crime. “ Id. For example lying to Medicare does not constitute any breach of public trust.

3. DISCOVERY VIOLATIONS

United States v. Boyd, 55F.3d 1103 (11th Cir. 1995. Reversed where the Government failed to disclose drug use and drug dealing by prisoner witnesses. Many of you know that often inmates end up testifying against someone alleging the defendant admitted facts of guilt about their case to them. First never talk about inculpating evidence with someone you meet in prison. Never admit to guilt and always ask for a detailed disclosure of that inmate’s record, PSR, charges and any inculpating impeachment evidence.

Kyles V. Whitley, 514 U.S. 419 (1995). Here the prosecution failed to turn over material and favorable evidence, sufficient to change the result of the case. Even if a prosecutor does not turn over evidence you think exists your attorney has some obligation to thoroughly investigate a case. Recently we discovered an insurance policy that benefitted someone other than the defendant if the person whose name the policy was in died. When a murder was committed our client was blamed and convicted. In a motion for new trial we successfully argued that this evidence would have changed the outcome of the case pointing the finger to the beneficiary of that policy. Sentence went from mandatory life without parole to twenty years for negligence in the murder instead of malice murder.

Information subpoenaed by the grand jury requires disclosure. See In Re Grand Jury Investigation, 59 F.3d 17 (2nd Cir. 1995). It is difficult to get Grand Jury transcripts but evidence submitted is more accessible.

United States v Arnold, 117 F.3d 1308 (11th Cir. 1997). Government withheld exculpatory tapes of government witnesses. This type of case can apply to withheld text messages, Instagram information or other electronic discovery interactions with witnesses or defendants that might be favorable.

The holding in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) requires disclosure of evidence that is both favorable to the accused and “material either to guilt or to punishment.” See also United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Brady Rule extends to evidence that may be used to impeach the government’s witnesses, as well. Giglio v. United States, 405 U.S. 150, 153–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Bagley, 473 U.S. at 676. “Such evidence is evidence favorable to an accused so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676.

Nonetheless, a defendant’s right to the Brady Rule disclosure of evidence does not “create a broad, constitutionally required right of discovery.” Id. at 675 n. 7 (“An interpretation of Brady to create a broad, constitutionally required right of discovery would entirely alter the character and balance of our present systems of criminal justice.”) (internal quotations and citations omitted). “Furthermore, a rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments.” Id. (internal quotations and citations omitted). “A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [government’s] files.” Pa. v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).

Regarding witnesses who are cooperating with the Government in the hope that their own sentences might be reduced, the Eleventh Circuit has held that nondisclosure of evidence affecting a witness’ credibility “falls within the general rule” that suppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution. Giglio, 405 U.S. at 153. Furthermore, the word “promise” is not “a word of art that must be specifically employed” for the Brady Rule to apply. Brown v. Wainwright, 785 F.2d 1457, 1464–65 (11th Cir.1986). Even so, “not everything said to a witness or to his lawyer must be disclosed …. Some promises, agreements, or understandings do not need to be disclosed, because they are too ambiguous, or too loose or are of too marginal a benefit to the witness to count.” United States v. Curtis, 380 F.3d 1311, 1316 (11th Cir.2004)

One of the things we see a lot of is that where there are seized cell phones no one asks to review the electronic evidence independently. Many times, the government does not review other account information including phone text or e mails. Even if they do and disclose it in discovery your attorney should request the phone be independently evaluated to be sure all the information being released in discovery is what is on or in those electronic communication devices or platforms. If you do not think there is anything there to help your case no need to spend the money exploring however, I have had clients tell me there is more in the text message related to others involvement or exculpatory to the governments accusations that was never retrieved.

4. RESIDENT SEARCHES

[R]esidential searches have been upheld only where some information links the criminal activity to the defendant’s residence.” United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir.1993) (citing United States v. Williams, 974 F.2d 480, 481–82 (4th Cir .1992)).

United States v. Shanklin, No. 2:12CR-l62, 2013 WL 6019216, at *8 (E.D.Va.2013) (holding that search of computers was not supported by probable cause because none of the supporting evidence “implicate[d] any multimedia device use ….”); see also Dougherty v. City of Covina, 654 F.3d 892, 898 (9th Cir.2011) (holding that probable cause for charges of sexual molestation did not authorize a search of the defendant’s home for child pornography on defendant’s computers because “[t]he affidavit contains no facts tying the acts of [the defendant] as a possible child molester to his possession of child pornography.”).

The good faith exception will not endorse a search that is wholly unrelated to the crime designated in the warrant. United States v. Doyle, 650 F.3d at 471. (holding good faith exception not applicable when warrant sought permission to search for evidence of child pornography, but evidence in affidavit only supported child molestation).United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir.1993) (although insufficient probable cause, upheld search of home for drugs under the good faith exception when no evidence affidavit prepared in bad faith).

The Fourth Amendment of the U.S. Constitution provides:

 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV (emphasis added).

Probable cause only requires “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[T]he task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984).

A magistrate who issues a search warrant must act in a neutral and detached manner, that is, he must not become “an adjunct law enforcement officer” or a “rubber stamp for the police.” United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (internal quotations omitted). Yet, once a search warrant has been issued, review of the probable cause determination by the magistrate is to be shown “great deference.” United States v. Blackwood,913 F.2d 139, 142 (4th Cir.1990). Courts must keep in mind “the right to ‘sanctity of private dwellings,’ has been held to be the right ‘ordinarily afforded the most stringent Fourth Amendment protection.’ “United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir.1996) (quoting United States v. Martinez–Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)). Consequently, “residential searches have been upheld only where some information links the criminal activity to the defendant’s residence.” United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir.1993). The Fourth Circuit has adopted the rule “that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.” United States v. Anderson, 851 F.2d 727, 729 (4th Cir.1988). Thus, when there is no evidence connecting criminal activity to a residence, the warrant is defective. Lalor, 996 F.2d at 1578. However, courts do “allow a [magistrate] to make reasonable inferences that people store contraband in their homes. But [the Fourth Circuits has] never held that a [magistrate] can make such an inference absent any facts in the affidavit linking a person to a residence.” United States v. McKenzie–Gude, 671 F.3d 452, 459 n. 2 (4th Cir.2011) (internal citations omitted).

RESTITUTION AND FORFEITURE 

         A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property “obtained as a result of” the crime (2) property “traceable” to the crime and (3), “other property of equivalent value”. 18 USC 1345(a)(2). But, in Luis v. United States, 136S.Ct 1083 (2016), the Supreme Court recognized that the ability to freeze untainted funds is not unlimited.

In Luis, the government charged Luis with fraudulent health crimes totaling nearly $45 million, but he had spent all except $2 million of this $45 million. In order to preserve the remaining $2 million, and other assets to satisfy the potential $45 million judgment, the government secured a pretrial order prohibiting Luis from dissipating any of her assets, including assets unrelated to her alleged crimes, up to the $45 million. This injunction was going to inhibit Luis’s right to retain counsel.

In finding that these non-tainted assets were not subject to an injunction, the Supreme Court ruled that “the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” Id. at 1088. The Court explained that untainted assets were different than tainted assets because “the property [] is untainted; i.e. ,it belongs to the defendant, pure and simple.” Id. at 1090.

This case changed the landscape of untainted funds being seized or restrained without cause or proof. This case also clarifies the principle of forfeiture in general, specifically related to untainted funds. While the case involved a pretrial injunction, its reasoning applies equally to a post-trial forfeiture of untainted assets during the appeal of right because defendants enjoy a right to counsel on appeals of right as well. See e.g. Miller v. Smith, 115 F.3d 1136, 1139–41 (4th Cir. 1997) (en banc) (“Because the State of Maryland has appellate review, the Constitution requires that the State of Maryland provide indigent criminal defendants, like Miller, counsel on direct appeal.”); Evitts v. Lucey, 469 U.S. 387 (1985) (right to effective assistance of counsel on appeal).

In Honeycutt v. United States, 137 S.Ct. 1626 (2017) the Supreme Court held that forfeiture is: limited to property the defendant himself actually acquired as a result of the crime” Id. at 1635.The court also rejected that conspiracy liability makes one liable for the foreseeable actions of the co-conspirators when the proceeds of the conspiracy are not traceable.

 

RECENT VICTORIES!

UNITED STATES v. PEREZ

Perez was charged with 18 U.S.C. §§ 1956(h) Money Laundering Conspiracy. The Government wanted a sentence of 120 months. The Federal criminal law firms successful advocacy reduced the final sentence to ninety-seven (97) months.

UNITED STATES v. COLLAZO

Collazo was charged with 21 U.S.C. §§ 841(b)(1)(B) and 846 Conspiracy to Possess and Distribute The government requested 168 months. Client had a prior federal case that exposed him to a mandatory minimum of 240 months. As a result of early intervention on the case and sentencing advocacy Mr. Collazo was subsequently sentenced to 135 months in custody.

UNITED STATES v. ERVES

            Erves was charged with 18 U.S.C. § 666(a)(1)(A) Federal Program Theft. PSR suggested guidelines of 46 to 57 months, final sentence 33 months.

UNITED STATES v. BROWN

            Brown was charged with 21 U.S.C. § (841(a)(1) and 841 (b)(1)(A)(ii) Possession with Intent To Distribute 5 kilograms or More of a Mixture and Substance Containing a Detectable Amount of Cocaine, a Schedule II Controlled Substance. Federal Sentencing Guidelines suggest incarceration from two hundred and sixty-two (262) to three hundred and twenty-seven (327) months. Brown was subsequently sentenced to one hundred and forty-four (144) months of incarceration as a result of early intervention on the case and successful sentencing advocacy.