New York Attorney Salvatore J. Piemonte Acquitted on Federal Charges of Allegedly Aiding and Abetting Drug Dealers

Salvatore J. Piemonte, a former prosecutor for the Onondage County District Attorney's Office in Syracuse, New York, for seven years, and former a local judge, was indicted last November in the U.S. District Court for the Northern District of New York for allegedly aiding and abetting the sale of marijuana, according to The government charged that Mr. Piemonte allegedly accepted a large sum of money from drug dealers in exchange for providing them with false documentation. The documentation allegedly falsely represented that a courier for the drug dealers had been arrested, and the drug dealers purportedly intended to show the documentation to their supplier in Canada in a scheme to pocket the proceeds from their drug sales. 

Happily, yesterday, a jury acquitted Mr. Piemonte on the charges following trial. His defense centered on a frequent theme in such prosecutions--that the drug dealer witnesses for the government had fabricated the allegations in order to get their sentences reduced. The Blog congratulates Mr. Piemonte and his counsel on the victory. 

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Diamond Store Owner Arthur Hiaeve Acquitted on Federal Money Laundering Charges on Venue Grounds

Arthur "Avi" Hiaeve, owner of the Manhattan diamond store, Hiaeve & Co., was acquitted last Wednesday on money laundering charges in the U.S. District Court for the Eastern District of New York. According to Reuters, Senior District Judge Allyne Ross granted Mr. Hiaeve's motion for judgment of acquittal on the seven counts of laundering drug money through his business as well as charges of avoiding currency reporting requirements, holding that a single telephone call by Mr. Hiaeve to a government informant was insufficient to establish venue in the Eastern District, and that Mr. Hiaeve should have been prosecuted in Manhattan in the Southern District of New York. The prosecution responded that Mr. Hiaeve allegedly had reason to know that he was laundering money coming from drug operations operating in the Eastern District of New York. Double jeopardy bars a subsequent prosecution of Mr. Hiaeve in Manhattan.

The government had alleged that Mr. Hiaeve laundered at least $106,000 on five occasions. Employees of Hiaeve, Kevin and Tanny Donaldson, were also charged with laundering drug money and entered pleas of guilty to conspiracy to distribute controlled substances and money laundering, respectively. Mr. Hiaeve is still involved in a civil forfeiture suit involving $3 million in diamonds and $17,900 in seized currency.

 Source: Elite Choice

Detroit Attorney Acquitted on Motorcycle Club Drug Charges

On Monday, Detroit Attorney Tim Attalla had charges that he helped the Highwaymen Motorcycle Club carry out a drug business thrown out by the U.S. District Court for the Eastern District of Michigan following a bench trial, as reported by an article on U.S. District Court Judge Nancy Edmunds concluded there was insufficient evidence to prove that Mr. Attalla was part of any drug conspiracy, or that he ever served as general counsel to the group.

Prosecutors had argued that Mr. Attalla allegedly assisted Aref Nagi, the former Vice President of the Club, in carrying out a drug conspiracy, including giving him advice on how not to get caught. The government also alleged that Mr. Attalla allegedly gave Nagi Viagra and Vicodin pills on at least two occasions. Nagi was convicted of racketeering in June. During trial, th government had former members of the Club testify against Mr. Attalla that he allegedly hung out at strip clubs with Nagi and also played taped phone conversations between Mr. Attalla and Nagi. The defense argued that Mr. Attalla did nothing more than advise his clients to remain silent pursuant to their Fifth Amendment rights.

McDonough Man Sentenced to 30 Years for Conspiring to Import Cocaine, Heroin and Marijuana from Mexican Drug Cartel

On Friday, Marlon Burton of McDonough, Georgia , was sentenced to 30 years imprisonment by the U.S. District Court for the Northern District of Georgia for conspiring to distribute cocaine, heroin and marijuana, according to an FBI press release. Burton was alleged to have imported hundreds of kilograms of cocaine, heroin and marijuana to Atlanta from Mexican drug cartel and to have sold the drugs to various street-level dealers. He was alleged to have traveled to Mexico on several occasions to negotiate prices and quantities of drugs. Burton was alleged to have funneled over $1.5 million in drug proceeds through his construction company and other businesses he controlled. Following a year-long investigation, law enforcement officers stopped a tractor trailer in McDonough carrying 40 kilograms of cocaine. Burton and eight other individuals were indicted in the Northern District of Georgia.

Johnson & Johnson Subsidiary Ortho-McNeil Pleads Guilty to Promoting Epilepsy Drug for Unapproved Uses; Settles Civil Suit for $75 Million

Ortho-McNeil, a unit of Johnson and Johnson, entered a guilty plea on Tuesday in the U.S. District Court for the District of Massachusetts to a misdemeanor for alleged illegal promoting of Topamax, a drug designed to treat epilepsy, for uses not approved by the Food and Drug Administration, according to PR Newswire. The government alleged that Ortho-McNeil used a promotional program called the "Doctor for a Day Program" to promote Topamax for psychiatric uses, allegedly paying physicians, including psychiatrists, to accompany sales representatives on sales calls. The government claimed that Ortho-McNeil never applied for approval to use Topamax to treat psychiatric conditions and that there were no reliable clinical trials demonstrating that Topamax is safe and effective to treat psychiatric conditons.

The Court imposed a $6.14 million criminal fine on Ortho-McNeil. An affiliate of Ortho-McNeil, Janssen Pharmaceuticals, has agreed to pay $75 million to settle claims under the False Claims Act that it illegally promoted Topamax for psychiatric purposes and submitted alleged false claims to Medicare. Ortho-McNeil and Jassen also entered into a corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services.


"Promotion" of drugs by manufacturers for off-label uses is prohibited by the Food Drug and Cosmetic Act, 21 U.S.C. 331, 333. Physicians can, and frequently do, prescribe drugs for unapproved uses. In addition to epilepsy, Topamax has been prescribed for uses such as the treatment of headaches and for weight loss.

Pfizer Hit With 140 Million RICO Verdict Over Alleged Promotion of Off-Label Uses for Epilepsy Drug Neurontin

As reported in the National Law Journal, a federal jury in Massachusetts last week returned a $47 million verdict against pharmaceutical giant Pfizer for allegedly promoting Neurontin, an epilepsy drug manufactured by Pfizer, for off-label uses in alleged violation of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. Since the RICO statute provides for treble (triple) damages, the amount of the verdict is actually $141 million.

The plaintiffs, Kaiser Foundation Hospitals and Kaiser Foundation Health Plan, alleged that Pfizer allegedly deceived the organizations into believing that Neurotin could be used to effectively treat conditions such as migraines and bipolar disorder. Neurontin has been approved by the U.S. Food and Drug Administration since 1993 to treat epilepsy.

Pfizer officials have issued a statement stating that the company will appeal the verdict. Pfizer officials allege that Kaiser misled the jury during trial and that it continues to recommend Neurontin to its patients for the off-label uses. Officials claimed that Neurontin is safe and effective.


Chief Justice John Roberts Issues Year-End Report on the Federal Judiciary; Judiciary "Operating Soundly"; New Criminal Cases at Highest Levels Since 1932

As the final hours of 2009 were running out on New Years' Eve, U.S. Supreme Court Chief Justice John Roberts issued the Chief Justice's Year-End Report on the Federal Judiciary, available here, a tradition begun by Chief Justice Warren Burger in 1970 to address the most critical needs of the federal judiciary. The Chief Justice has used the Year-End Report in the past to call for salary increases for federal judges. However, this year, the Report merely states that the federal courts are operating soundly, citing the hardships experienced by the nation in 2009.

The Appendix to the Report surveys the workload of the federal courts in 2009. It notes that the total number of cases filed in the Supreme Court decreased by about 6.1% from 2007 to 2008, however the Court hear more cases argued and issued more signed opinions in 2008 than 2007. Filings in the Federal Circuit Courts of Appeals also declined 6% to 57,740, mostly due to a drop in appeals from the Board of Immigration Appeals.

The Year-End Report notes, however, that criminal case filings in federal district courts rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003, and reached its highest level since 1932. Filings relating to immigration, fraud, marijuana trafficking, and sex offenses increased. The number of mmigration cases and defendants reached record levels, as a result of illegal re-entries and visa or entry permit fraud. Most of the increase was in five federal districts near the southwestern border. The Report also observes that, as of September 30, 2009, the number of persons under post-conviction supervision was 124,183, an increase of 3% from the previous year. Supervised release cases and pretrial services cases also rose by several percent.

Pfizer Enters Largest Healthcare Fraud Settlement in U.S. History

Pharmaceutical giant Pfizer, inc., will pay $2.3 billion to the Federal government and 49 States to settle allegations that it violated federal regulations in promoting several drugs, as reported by the Atlanta Journal-Constitution. The settlement is the largest in U.S. history to date in a healthcare fraud case. 

Georgia will receive $21.7 million as part of the settlement. A spokesperson for the Georgia Attorney General's office told the media that Georgia's portion of the settlement funds would be earmarked for Georgia's Medicaid program.

The U.S. Department of Justice had accused the New York-based pharmaceutical company and its subsidiaries of conducting marketing campaigns to promote drugs including Geodon, Lyrica, Zyvox, and no longer marketed Bextra, for uses not approved by the U.S. Food and Drug Administration. The government also alleged that Pfizer gave kickbacks such as cash, travel and entertainment to members of the healthcare industry in order to persuade them to prescribe these drugs and others, including Lipitor, Zyrtec and Viagra. The only State which did not join in the suit was South Carolina.

Pharmacia & Upjohn Co., a subsidiary of Pfizer, has pled guilty to a felony charge of violating the Food, Drug and Cosmetic Act, and will pay a fine of $1.3 billion.

VA Doctor Pleads Guilty to Issuing Between 50K to 100K Prescriptions Online

Online pharmaceuticals are big business and, frequently big sources of violations of the Food and Drug Act, including criminal ones. Accordingly, Mechanicsville, Virginia, doctor Torino Jennings pled guilty last week in federal court to seven counts of introducing misbranded drugs into interstate commerce and four counts of tax evasion. Jennings was charged with issuing between 50,000 to 100,000 prescriptions between 2004 and 2007 to persons who filled out forms for online pharmacies.

Jennings was paid $5 to $7 per perscription. He failed to report the income to the Internal Revenue Service, however. Jennings will be sentenced in November and faces a maximum of five years in prison.

Indictment in the Sir Robert Allen Stanford Case/Stanford to Be Arraigned in Houston Today

Sir Robert Allen Stanford is scheduled to be arraigned today on conspiracy, mail and wire fraud, money laundering and obstruction charges in Houston in the U.S. District Court for the Southern District of Texas. Stanford is represented by attorneys Dick DeGuerin and Sean Ryan Buckley, of the Houston firm of DeGuerin and Dickson.

According to the docket for the case, the Government obtained its 21-count indictment, which can be viewed here, last Thursday and promptly moved to seal (i.e. prevent public access to) it, and then unsealed it on Friday shortly before Stanford’s arrest.

The Court will likely revisit the issue of whether Stanford is entitled to release before trial. On Friday, the Court ordered co-defendants Mark Kuhrt and Gilberto Lopez released on a $100,000 unsecured bond. However, given Stanford’s considerable wealth and ties abroad, any amount of bond imposed in his case will undoubtedly be far higher, if Stanford is granted pre-trial release at all, that is. The U.S. District Court for the Eastern District of Virginia determined that Stanford posed a high risk of flight, and denied bond.

The case will be tried before U.S. District Judge David Hitter, a brief description of whom can be found here.

Sir Robert Allen Stanford Indicted in Alleged Second Largest Ponzi Scheme in U.S. History

The writers of Federal Criminal Defense Blog have been busy writing on other matter and apologize for the brief hiatus. Much has happened in the sphere of white collar crime even during our short absence, most notably developments in the two largest Ponzi schemes in U.S. history, and we have some catching up to do.

We’ll start with the second largest—an indictment indictment against billionaire Texas financier Sir Robert Allen Stanford, 59, was unsealed in the U.S. District Court for the Eastern District of Virginia on Friday according to the Associated Press  and the BBC. The 50-page indictment alleges that Stanford and six other defendants with allegedly perpetrated a $7 billion Ponzi-style fraud. It charges Stanford and the other defendants with 21 counts, including 7 counts of wire fraud, 10 counts of mail fraud, conspiracy to obstruct an investigation for the Securities and Exchange Commission, obstruction of an investigation by the SEC and conspiracy to commit money laundering. Defendants Laura Pendergest-Holt, Gilberto Lopez and Mark Kuhrt are executives of Stanford Financial Group. Defendant Leroy King, a former bank regulator for the Caribbean island nation of Antigua and Barbuda, allegedly accepted more than $100,000 in bribes from the other defendants in order to allow the alleged scheme to continue.

The indictment alleges that the defendants sold certificates of deposit issued by Stanford International Bank, based in Antigua, to investors, promising large returns. The defendants allegedly made false claims to investors regarding the growth of Stanford Financial Group’s assets.

The scheme had approximately 30,000 investors. Stanford is alleged to have diverted more than $1.6 billion in investment funds in personal loans to himself. More than $1 billion in investment money is allegedly unaccounted for. Stanford is also charged in the indictment with allegedly conspiring to obstruct an SEC proceeding. Stanford Financial Group’s finance chief, James M. Davis, is cooperating with investigators. Davis has been charged with fraud and obstruction in a separate indictment.

Stanford was the owner of a newspaper, two restaurants, and a development company in Antigua, and was a cricket enthusiast and owner of the Stanford cricket grounds in Antigua. In 2008, Stanford staged a $20 million, winner-takes-all, match between a West Indian XI and England at the grounds. In 2006, Stanford became the first American to be knighted by Antigua and Barbuda.

Stanford is represented by attorney Dick DeGuerin, who has issued a statement to the press that Stanford is innocent of the charges. Stanford has made repeated statements as to his innocence and has alleged that no money was lost.

Stanford surrendered to the FBI on Thursday and had his initial appearance on Friday. U.S. Magistrate Judge Hannah Lauck determined that Stanford posed a flight risk and ordered him to remain in custody pending a future detention hearing in Houston. Several governments have frozen his assets. Stanford faces as much as 250 years in prison if convicted.

Syed Haris Ahmed Trial: Allegations


By way of background, the Government originally charged Syed Haris Ahmed in a sealed indictment filed on March 23, 2006. The Government obtained a Superseding Indictment on July 19, 2006. It has charged Ahmed and his co-defendant, Ehsanul Islam Sadequee, with one count of conspiracy to provide material support to terrorists, in violation of Title 18 United States Code Sections 956 and 2332b; one count of providing and attempting to provide material support to terrorists, in violation of Title 18, Sections 956, 2332b and 2339A; one count of conspiracy to provide material support to a Designated Foreign Terrorist Organization, in violation of Title 18, Section 2339B; and one count of attempting to provide material support to a Designated Foreign Terrorist Organization, in violation of Title 18, Section 2339B.

The Government’s Superseding Indictment contains the following facts and allegations:

Ahmed was born in Pakistan in 1984 and became a naturalized U.S. citizen. Sadequee, who is allegedly nicknamed “Shifa,” was born in Virginia in 1986, and is of Bangladeshi descent.

In or around late 2004, Ahmed and Sadequee and another person engaged in alleged paramilitary training, including with paintball guns, in Northwest Georgia.

On or about February 26, 2005, Ahmed and Sadequee traveled to Toronto, Canada, by bus. While in Toronto, Ahmed and Sadequee allegedly met in person with “supporters of violent jihad” and “discussed strategic locations in the United States that were suitable for terrorist attack, including military bases and oil storage facilities and refineries.” Ahmed, Sadequee and the others allegedly also “explored how they might disrupt the world-wide Global Positioning System (GPS)” and “a plan for members of the group to travel to Pakistan to seek and receive paramilitary training that they would then use to engage in violent jihad.”

After returning to Atlanta, in or about March or April 2005, Ahmed and Sadequee further discussed these plans, and also the possibility of attacking Dobbins Air Reserve Base in Marietta, Georgia.

At or around this time, Sadequee was allegedly in communication with Younis Tsouli, an unindicted co-conspirator in the United Kingdom.

On or about April 10 and 11, 2005, Ahmed and Sadequee traveled to Washington, D.C., in Ahmed’s pickup truck. On April 11, Ahmed and Sadequee allegedly “made short digital video recordings… of symbolic and infrastructure targets of potential terrorist attacks in the Washington, D.C., area, including the United States Capitol; the headquarters building of the World Bank…; the Masonic Temple in Alexandria, Virginia; and a group of large fuel storage tanks near I-95 in northern Virginia.”

On returning to Atlanta, Ahmed allegedly gave the video clips to Sadequee so that he could send the clips to supporters of violent jihad abroad. Sadequee allegedly sent the video clips to Tsouli in the United Kingdom and Tsouli stored the clips on his computer along with other materials relating to violent jihad.

Between March and July 2005, Sadequee allegedly provided Ahmed with the contact information for Abu Umar, an unindicted co-conspirator, and told Ahmed that Abu Umar could assist Ahmed with obtaining paramilitary training in Pakistan. On or about July 17, 2005, Ahmed traveled from Atlanta to Pakistan for the alleged purpose of studying in a madrassa and then obtaining paramilitary training to engage in violent jihad in Kashmir or other locations, including the U.S. Ahmed is alleged to have intended to join Lashkar-e-Tayyiba (“Army of the Righteous”). Ahmed was allegedly unsuccessful in his attempts to enter a madrassa or to obtain paramilitary training, and returned to Atlanta.

On or about August 18, 2005, Sadequee traveled from Atlanta to Bangladesh to allegedly get married and to pursue violent jihad. Sadequee was stopped as he traveled through John F. Kennedy Airport in New York and was discovered to allegedly have two compact discs concealed in the lining of his suitcase which contained a Fairfax County, Virginia, Visitor’s Center map of the Washington area, including the sites of four potential terrorist targets which Sadequee and Ahmed had videotaped in April 2005. Sadequee was interviewed by federal agents and allegedly falsely stated that he had traveled to Toronto alone.

On or about August 19, 2005, Ahmed returned to Atlanta from Pakistan and was interviewed by federal agents at Hartsfield International Airport in Atlanta. Ahmed allegedly made false and misleading statements about his travel to Canada and Pakistan, allegedly stating that he had made the trips to visit friends and family and to attend a religious school.

In the Fall of 2005, Ahmed allegedly researched shaped explosive charges and methods to defeat surveillance by government authorities. He also allegedly cautioned an individual to avoid discussing certain topics over the telephone.

On or about November 27, 2005, Ahmed allegedly told a supporter of violent jihad of his intent to go abroad again to train for, and engage in, violent jihad, and told the individual to read the indictment against Jose Padilla. At or around this time, Ahmed allegedly reviewed a periodical for gun enthusiasts.

In early 2006, Ahmed allegedly engaged in efforts to detect and evade suspected government surveillance. In March of 2006, agents from the FBI Joint Terrorism Task Force engaged in a series of interviews with Ahmed, in which Ahmed allegedly attempted to conceal the true nature of his, Sadequee’s and their alleged co-conspirators’ discussions, activities and plans. After the interviews began, Ahmed communicated with Sadequee in Bangladesh and warned him about the FBI’s interest in their activities.


Syed Haris Ahmed Trial: Day 1


The trial of Syed Haris Ahmed is Georgia’s most significant terrorism case and we will collect for readers daily information on the trial and additional information. Today’s information on the Ahmed/Sadequee Trial comes from the Atlanta Journal-Constitution, WSBTV and CNN.

Ahmed is 24, an Atlanta area native and a former student at Georgia Tech. Ahmed waived his right to jury trial, and his case is being tried before District Court Judge William S. Duffey in the U.S. District Court for the Northern District of Georgia without a jury. Jack Martin, of Martin Brothers, P.C., is representing Ahmed. Assistant U.S. Attorney Robert McBurney is representing the United States. Ahmed’s co-defendant, Ehsanul Islam Sadequee, will be tried in August. Stephanie Kearns of the Federal Defender Program is representing Sadequee.

On Monday, Mr. Martin gave his opening statements to the Court, describing Ahmed as a confused, frustrated and immature young man who “fell prey” to websites espousing extremist views. Mr. Martin characterized the alleged plans for terrorist acts as “passing random thoughts, momentary ideas, childish fantasies, unformed, inchoate notions.” Mr. Martin argued that Ahmed had the ability to commit the alleged acts but said “No.” He stated that Ahmed’s idea of paramilitary training was shooting paintball guns with a friend in the North Georgia woods.

Mr. McBurney argued that Ahmed “one step removed from the bomb throwers” and intended to wage violent jihad. Mr. McBurney argued that Ahmed was a would-be terrorist who went to Pakistan to join the Taliban. He said that the videos made by Ahmed while allegedly “casing” locations in Washington, D.C., including the Capitol and the Pentagon, were intended to prove to terrorists overseas that Ahmed had access to Washington’s “backyard” and could get in close to targets. McBurney said the government’s case is about supporting terrorism and not actually “pulling the trigger or dropping the bomb.”

FBI Special Agent Mark Richards testified for the government. During Agent Richard’s testimony, the government showed some of the videos. In one video of the World Bank Building, Ahmed bobbed up and down so much that Mr. Martin asked Special Agent Richards “If a terrorist was attacking on a pogo stick, this might be useful, right?” However, another video shows Ahmed and Sadequee driving past the Pentagon with Sadequee stating “This is where our brothers attacked.”


Summary of Eleventh Circuit Criminal Opinions, Week of March 17, 2009

Our apologies for playing catch-up, but our summary of the primary, meaningful criminal opinions by the Eleventh Circuit will continue this week. Following is a summary of the decisions for the week of March 17, 2009.

In Salazar v. U.S., No. 07-13715, 2009 WL 684772 (11th Cir., Mar. 17, 2009), the Eleventh Circuit reversed the district court’s denial of the defendant’s motion pursuant to 28 U.S.C. § 2255 to vacate his sentence for possessing with the intent to distribute crack cocaine based upon ineffective assistance of counsel, where defendant’s counsel failed to call as witnesses at trial two persons who could have corroborated that the defendant denied possessing any cocaine at the time of his arrest, id. at *2.

The Court affirmed the district court’s denial of a reduction under the safety-valve provision pursuant to U.S.S.G. § 5C1.2 for a defendant convicted of conspiracy to manufacture and possess with intent to distribute marijuana plants in U.S. v. Cruz, No. 08-11625, 2009 WL 684789 (11th Cir., Mar. 17, 2009), observing that the defendant’s refusal to testify at sentencing left the district court with little ability to access his credibility and the defendant had failed to carry his burden, id. at *2.

In U.S. v. Valdex, No. 07-14721, 2009 WL 684751 (11th Cir., Mar. 17, 2009), the Court held that the defendant in a prosecution for health care fraud “invited” any error in calculating the amount of loss under U.S.S.G. § 2B1.1 by urging the trial court to adopt the amount of loss contained in the presentence report, id. at 1. It also held that the trial court did not clearly err in applying a sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(9)(C) where the defendant “recruited beneficiaries and sought out doctors so as to aid in hiding the illegality of his Medicare claims, and converted [a corporation] into a pharmacy through which he continued to defraud Medicare…” Id. The Court also held that the defendant’s sentence was within the Sentencing Guidelines range and therefore substantively reasonable, pursuant to U.S. v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and that “relevant uncharged or acquitted conduct may be taken into account in sentencing, as long as such conduct is proven by a preponderance of the evidence and the court clearly applied the Guidelines as advisory.” Id. (citing U.S. v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006)).

The Court affirmed the defendant’s above-Guidelines sentence for travel with intent to engage in a sexual act with a juvenile in U.S. v. Smith, No. 08-11665, 2009 WL 693342 (11th Cir., March 18, 2009), noting that the district court could upwardly depart in sentencing the defendant based upon violations of the defendant’s supervised release, pursuant to U.S.S.G. § 7B1.4, comment. (n.3), id. at *2.

            In U.S. v. Whitehead, No. 08-13201, 2009 WL 691184 (11th Cir., Mar. 18, 2009), the Court affirmed the denial of the motion for a sentencing reduction, brought pursuant to 18 U.S.C. § 3582(c)(2) of the defendant, who was convicted of various drug and crack cocaine offenses, holding that the Sentencing Commission’s Amendment 706 to U.S.S.G. § 2D1.1(c) in November 2007, which provided a two-level reduction in base offense levels for certain crack-cocaine offenses, did not affect the guideline ranges of defendants who were sentenced as career offenders under U.S.S.G. § 4B1.1, id. at *3 (citing U.S. v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008)). The Court also held that the defendant was ineligible for the reduction despite the fact that he had been granted a downward departure pursuant to U.S.S.G. § 4A1.3, observing that “[t]he critical fact… is that the district court used the offense level from the career offender guideline to calculate [the defendant’s] applicable guideline range,” rather than § 2D1.1. Id. at *4.

The Court affirmed the district court’s denial of a motion for reduction pursuant to § 3582(c)(2) by a defendant convicted of  conspiracy to possess with the intent to distribute cocaine and cocaine base in U.S. v. Val Saint, No. 08-12726, 2009 WL 693341 (11th Cir., Mar. 18, 2009), noting that Amendment 711 reversed Amendment 706 on the issue of converting base offense level into a base offense level for marijuana, holding that the defendant’s base offense level would have remained the same, id. at *2.

In U.S. v. Traywick, NO. 08-14092, 2009 WL 693339 (11th Cir. Mar. 18, 2009), the Court affirmed the defendant’s sentence for crack cocaine offenses pursuant to its holding in U.S. v. Melvin, No. 08-13497, 2009 WL 236053 (11th Cir. Feb. 3, 2009) that, regardless of U.S. v. Booker, 543 U.S. 220 (2005), U.S.S.G. § 1B1.10(b)(2)(A) and policy statements prevent a court from reducing a defendant’s term of imprisonment under § 3582(c)(2) to a term that is less than the minimum of the amended guidelines range determined under U.S.S.G. § 1B1.10(b)(1), id. at *2 (citing Melvin, at *5, *7, *9-*10). The Court also held that § 3582 does not include a notice or hearing provision. Id. The Court further held that the Supreme Court’s holding in Kimbrough v. U.S., 128 S.Ct. 558 (2007) that courts can deviate from the 100-to-1 equivalency ratio of cocaine base to powder cocaine in U.S.S.G. § 1B1.13 and Amendment 503 did not amount to an amendment of the Guidelines and was therefore inapplicable to a § 3582(c)(2) motion. Id.

The Court also followed its holding in Melvin in U.S. v. St. George, No. 08-12226, 2009 WL 707858 (11th Cir., Mar. 19, 2009), and further reemphasized that, in re-sentencing a defendant under § 3582(c)(2), a district court must leave intact all guideline application decisions made during the initial sentencing, does not have authority to revisit factual matters such as drug quantity, and cannot apply Booker, id. at *2 (citing U.S. v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); U.S. v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997)). And in U.S. v. Roberts,
NO. 08-13753, 2009 WL 714329 (11th Cir., Mar. 19, 2009) it again affirmed that Booker does not apply to resentencings under § 3582(c)(2) pursuant to § 1B1.10(b)(1), id. at *1.

The denial of the defendant’s proposed minor role reduction under U.S.S.G. § 3B1.2 was affirmed in U.S. v. Bataz Martinez, No. 04-15405, 2009 WL 707772 (11th Cir., Mar. 19, 2009), a drug prosecution, “because [the defendant] failed to demonstrate that he was less culpable than most of the other participants in the offense,” id. at *2. The defendant’s sentence was also affirmed under Booker based upon the defendant’s failure to point to any evidence of a reasonable probability that he would have received a lesser sentence had he been sentenced under advisory guidelines. Id. at *3.

In U.S. v. Massengill, No. 08-15207, 2009 WL 714259 (11th Cir., March 19, 2009), the Court denied the defendant’s attorney’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and remanded to the district court to amend its written judgment were the judgment failed to include any reasons for the court’s upward departure from the guidelines range, agreeing with the Second Circuit in U.S. v. Hall, 499 F.3d 152 (2d Cir. 2007) that the “better course” where a court omits the reasons for a departure in a written order is to affirm the substance of the judgment and remand to the district court for the sole purpose of amending the written judgment to comply with 18 U.S.C. § 3553(c)(2), which requires a written statement of reasons for the sentence in the written order of judgment, id. at *4 (citing Hall, at 153).

 In U.S. v. Villegas-Tello, No. 08-13325, 2009 WL 714214 (11th Cir., Mar. 19, 2009), the Court held that Immigration and Customs Enforcement agents possessed probable cause to arrest the defendant for marijuana offenses based upon the totality of the circumstances, and that follow-up questions by arresting officials for the sake of clarification do not violate Miranda v. Arizona, 384 U.S. 436 (1966), id. at *4 (citing U.S. v. Rhodes, 779 F.2d 1019, 1032 (4th Cir. 1985); U.S. v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997); Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir.1990); Butzin v. Wood, 886 F.2d 1016, 1017-18 (8th Cir. 1989)). The Court also affirmed the denial of one of the defendants’ motion in limine pursuant to Bruton v. United States, 391 U.S. 123 (1968), holding that an alleged statement by a co-defendant was not incriminating on its face to the defendant; that sufficient evidence supported the defendants’ convictions; and that because one of the defendants performed the same or similar role within the conspiracy as his codefendants, he was not less culpable than most other participants in his relative conduct, he was not entitled to a minor role reduction under § 3B1.2. Id. at *5, *6, *7 (citing U.S. v. DeVaron, 175 F.3d 930, 937 (11th Cir. 1999)).

The Court affirmed the denial of the defendant’s motion to vacate his convictions for conspiracy to commit bank fraud and money laundering pursuant to 28 U.S.C. § 2255 in Baughman v. U.S., No. 08-14279, 2009 WL 714212 (11th Cir., Mar. 19, 2009), concluding that record supported the finding of the district court that the defendant never instructed his attorney to file a notice of appeal, and consulted with him on his right to appeal, id. at *3, *4.

In U.S. v. Bohning, NO. 07-15549, 2009 WL 724036, (11th Cir., Mar. 20, 2009), a prosecution of the defendant for various sex offenses involving minors, the Court held that the defendant’s Sixth Amendment right to counsel and Fifth Amendment due process rights were not violated by the government placing a lis pendens on his home, which the defendant would have sold to pay legal fees, discussing its prior decision in United States v. Register, 182 F.3d 820 (11th Cir. 1999), id. at *1, *2 (citing Register, at 834). The Court also held that the district court’s denial of the defendant’s motion to withdraw his guilty plea was not unreasonable. Id. at *3 (citing United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006))


"Crack" Sentence Reversed for Insufficient Ingredients

A single gram of "cocaine base," or "crack" cocaine, is equivalent to 50 to 100 grams of cocaine for sentencing purposes, according to U.S. Sentencing Guideline §2D1.1. "Crack" cocaine is typically made by boiling cocaine in water with baking soda.

The Eleventh Circuit held late last week that there was insufficient evidence to uphold Ramon Singleton's sentence for possession with intent to distribute more than 50 grams of cocaine base. See  U.S. v. Singleton, No. 07-13329, 2008 WL 4595272, *2 (11th Cir., October 16, 2008). The reason? An insufficient amount of baking soda. Law enforcement had seized 937.30 net grams of powder cocaine from Singleton's motel room. Id. The Court observed that Singleton would have needed at least four 8 oz. boxes of Arm & Hammer to convert this quantity of powder cocaine into cocaine base. Id. It further noted, however, that "law enforcement officials only recovered one eight-ounce box of baking soda in the motel room, which was clearly not sufficient to convert all of the seized powder into crack cocaine." Id. The Court held that the district court's drug determination was not supported by the evidence, and that the error was not harmless. Id. In so doing, it reaffirmed that "'[a]lthough sentencing may be based on fair, accurate, and conservative estimates of the quantity of drugs attributable to a defendant, sentencing cannot be based on calculations of drug quantities that are merely speculative.'” Id. (quoting U.S. v. Zapata, 139 F.3d 1355, 1359 (11th Cir.1998)).


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