Judge Frederic Block reflected on the guidelines' "fetish with absolute arithmetic" and wrote in his 21-page opinion:

[W]e now have an advisory guidelines regime where, as reflected by this case, any officer or director of virtually any public corporation who has committed securities fraud will be confronted with a guidelines calculation either calling for or approaching lifetime imprisonment.

The brothers, Lennox Parris and Lester Parris, served as co-directors of Queench, Inc., a bottled water company that marketed mostly to minorities.  The U.S. Attorneys' office charged the Parris' with allegations that they artificially inflated the value of the company's stock by misrepresenting the company's success in landing distribution contracts with 7-Eleven, Time Warner, and the U.S. military.

A jury found the brothers guilty of six counts of securities fraud, conspiracy to commit securities fraud, witness tampering, and conspiracy to commit witness tampering.

The Presentence Report assessed 42 points for each defendant which put them in the 30-to-life category.  Judge Block decided that the guidelines did not "provide realistic guidance" in assessing five-year sentences.  In his memorandum opinion, Block wrote:

[T]he nature of their crimes - while clearly deserving of the punishment which I have meted out - is simply not of the same character and magnitude as the securities-fraud prosecutions of those who have been responsible for wreaking unimaginable losses on major corporations and, in particular, on their companies' employees and stockholders, many of whom lost their pensions and were financially ruined."

Randy Scott Zelin who represented Lennox Parris predicted that Judge Block's decision will have "major repercussions in the legal community."

Eric Conner got caught up into a credit card/gift card scheme with some other ne'er-do-wells.  The conspiracy basically concerned fraudulently obtained credit card numbers and the use of those account numbers to buy gift cards.  Conner bought gift cards from conspiracy members at less than face value and then bought high-quality tools with them to later resell on eBay.  He was subsequently arrested and charged with credit card fraud.

At sentencing, Conner objected to the various credit card holders being deemed "victims" of the scheme.  He argued that since the card holders had been fully reimbursed by the credit card companies, only the card companies were "victims" under the Sentencing Guidelines.  The district court naturally overruled Conner's objection, finding that the card holders were indeed victims of the scheme though the Government failed to put on any evidence that they were out any money.

In reversing the trial court on this issue, the Fifth Circuit wrote:

In finding that the account holders were victims, the district court reasoned that some account holders must have paid bills with fraudulent account charges before ultimately being reimbursed, and this logically involved a loss of business time.  Although it did not specifically say so, perhaps this was the district court finding that account holders ultimately incurred pecuniary harm.  The court admitted that it did not have "any evidence" for this conclusion, but that it was just "garden-variety logic."  It is possible that with a proper evidentiary foundation these types of unreimbursed business losses could be considered "actual losses" for the purposes of counting "victims."  But the district court's speculation as to the existence of these facts was an insufficient basis to enhance Conner's sentence.  "[A] finding under the Guidelines must be based on reliable information and a preponderance of the evidence, see U.S.S.G. § 6A1.3, commentary."  As it is "[t]he Government [that] bears the burden of proving . . . that the facts support a sentencing enhancement.  (citation omitted.)  This standard was not met here.

The lesson of Conner is this: a defendant should think long and hard before stipulating to any facts or Guideline applications that might enhance his sentence because the Government is not always ready to present evidence to support those enhancements at sentencing.

Texas Department of Public Safety patrol officers stopped Roberto Garcia for speeding.  A subsequent consensual search yielded $92,203.00 in concealed cash.  Garcia told the officers that he intended to drive his vehicle to Mexico without reporting the currency to custom officials.

Garcia was indicted for violation of 31 U.S.C. § 5332 that makes it illegal to knowingly conceal more than $10,000.00 in cash in order to avoid filing a report with the Government regarding the transportation of cash over the border.  31 U.S.C. § 5332© provides that any property involved in such a violation may be seized and forfeited to the Government.

The Government moved for summary judgment solely on an affidavit by a patrol agent.  The agent’s affidavit began with the statement that “the following information was either gathered in the course of my official duties or I know this information of my own personal knowledge.”  The affidavit concluded by noting Garcia’s criminal conviction under 31 U.S.C. § 5332.

Garcia argued that the patrol agent’s affidavit was inadmissible under Federal Rule of Evidence 602 due to the fact that it was not based upon personal knowledge.  The Fifth Circuit agreed observing that the patrol agent was not present when Garcia was initially pulled over so any of his information would be based upon hearsay.  Significantly, the court also recognized that any of law enforcement officers’ statements to the affiant officer about Garcia’s admission would also constitute hearsay under FRE 805 (hearsay within hearsay is inadmissible unless both parts are shown to be admissible).

The court observed that Congress enacted the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) which heightened the evidence standards for civil forfeiture actions.  The court concluded that courts may no longer rely on hearsay (absent an exception to the hearsay rule) when deciding the merits of a civil forfeiture proceeding brought under CAFRA.  Accordingly, affidavits submitted by the Government must be based upon personal knowledge and not on information “gathered in the course of my official duties.”

Dwayne Giles shot his girlfriend, Brenda Avie, outside the garage of his grandmother's house. He was later indicted for murder and testified at his trial that he had shot Avie in self-defense. To counter his defense, prosecutors sought to introduce statements Avie had made to a police officer responding to a domestic disturbance call three weeks before the shooting.

The trial court allowed Avie's prior statements in evidence on the basis that Giles's murder of her presented an exception to the Sixth Amendment's Confrontation Clause. The court's reasoning was that the admission of Avie's unconfronted statements did not violate the Sixth Amendment because the Supreme Court's Crawford case recognized a doctrine of forfeiture by wrongdoing.

The Supreme Court surveyed the state of the common law at the time of the adoption of the Constitution and held that the only recognized exceptions to the Sixth Amendment were dying declarations and witness statements where the defendant "detained" or "kept away" the witness from testifying at trial. The court struck down California's codified exception, but alluded that the Avie evidence, if further developed, might squeeze into an exception:

The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution - rendering her prior statements admissible under the forfeiture doctrine.

Michael Greenlaw was convicted of various offenses and sentenced to imprisonment for 442 months.  He appealed his sentence, urging that it was unreasonably long.  After rejecting his arguments, the Eighth Circuit Court of Appeals determined, without a government cross-appeal, that the applicable law required a prison sentence 15 years longer than originally imposed.  The court of appeals consequently vacated Greenlaw's sentence and ordered the trial court to add 15 years to his 442 month sentence.

The Supreme Court held that, even though the trial court had erred, the court of appeals could not increase Greenlaw's sentence absent a cross-appeal by the government.  The court stated reiterated the general rule that "[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief."  Consequently, the appellate court could not hand unrequested relief to benefit the government.  Thus a defendant who appeals his sentence and does not face a cross-appeal can proceed anticipating that the appellate court cannot enlarge his sentence.

Alexander's Federal Convictions Reversed may be duplicated for any lawyer providing legal services to indigent defendants. Duplication is encouraged and the document may be reprinted by other free publications or free on-line providers serving the criminal defense bar.  The document may be downloaded here.

Ordonez-Dawes alleged that the defendants, Turnkey Properties, Inc. and Michael Friend, were provided several of her photographs for the limited purpose of use in advertising in the defendants' company, Remi Developers. Instead of using the photographs for this limited purpose, the defendants "disseminated a number of the photos to third parties for the third parties' ads, in knowing violation of copyright law."

After the defendants failed to file an answer, the court held an evidentiary hearing to determine the proper amount of damages.

Significantly, the court found that Ordonez-Dawes had registered her photographs with the Copyright Office prior to granting her limited license to the defendants.

The court found that Ordonez-Dawes's standard practice, based on industry custom, was to sell customers an unlimited non-exclusive license when the customer does not wish to provide details regarding the planned use and distribution of the copyrighted work. Ordonez-Dawes bases her fees for such licenses on the standard fees charged in the industry which the court found to total $58,760.00.

The court found that the defendants had distributed her pictures to various real estate brokers who used the pictures to sell multi-million dollar Florida homes.

In determining damages, the court held:

Pursuant to 17 U.S.C. § 504(b), Plaintiff has demonstrated actual damage to her copyrighted works totaling $58,760.00. Plaintiff has demonstrated that she would have charged $58,760.00 for an unlimited, non-exclusive license to use the copyrighted works in question. The Court finds that this amount is a reasonable charge for an unlimited non-exclusive license for the seven copyrighted works infringed by Defendants. Generally speaking, actual damage is measured by the injury to the market value of a plaintiff's copyrighted works. (citations omitted) However, "once a copyrighted holder establishes with reasonable probability the existence of a causal connection between the infringement and the loss of revenue, the burden shifts to the infringer to show that this damage would have occurred had there been no taking of copyrighted expression. (citations omitted) Plaintiff has demonstrated a connection between the infringement of her copyrighted works and her loss of licensing revenue. Because of Defendants' default, Defendants have lost the opportunity to show that this "injury" to Plaintiff's works was not the result of infringement.

Based on copyright law, the court concluded that Ordonez-Dawes could elect between the defendants' "gross revenues" derived from the infringement or statutory damages of $150,000.00 for each copyrighted work that was infringed. The court concluded that the defendants' gross revenues amounted to $12,030,500.00.

The court's Findings of Fact and Conclusions of Law may be reviewed here.

According to court documents, the defendants sought out single-family homes for sale, including distressed and foreclosed properties.  After negotiating a price, they created surplus loan proceeds by inflating the sale price or creating a fake outstanding mortgage lien to be discharged.

Eric Rulack Farrington who conducts wealth-building seminars and is a self-professed homeless man turned millionaire is the lead defendant.

The prosecution arose from investigations into a golfing trip that he took with the infamous lobbyist Jack Abramoff while Safavian was chief of staff of the General Services Administration ("GSA").

Safavian and Abramoff had been close friends when Safavian became chief of staff. Shortly after he arrived at the new job, Abramoff asked him about two GSA-controlled properties. The two men emailed each other about the properties, but nothing ever came of Abramoff buying the properties as they remained with the GSA through Safavian's tenure.

During the back-and-forth about the properties, Abramoff invited Safavian to join him on a 5-day golf outing in Scotland. Prior to joining Abramoff on the trip, Safavian requested an ethics opinion about whether he could receive the trip as a gift. In his request, Safavian said that Abramoff "has no business before the GSA." The ethics opinion indicated that he could receive Abramoff's chartered plane ride as a gift. Safavian went on the trip and paid for most of his own expenses (specifics are contained in the opinion). He also gave Abramoff a check for $3,100 which Abramoff had said was the cost of the trip.

The GSA Office of Inspector General subsequently investigated the trip and GSA agent Gregory Rowe interviewed Safavian twice. Rowe testified at trial that Safavian told him that he "paid for the trip," including airfare, and that Abramoff did not have any business with GSA. Savafian did not mention the trip's weekend in London or Abramoff's interest in the GSA properties. In a separate congressional investigation, Safavian stated in a letter to the subcommittee that Abramoff "did not have any business before the agency."

A grand jury indicted Safavian on three counts of “falsify[ing], conceal[ing] and cover[ing] up by a trick, scheme, and device material facts” in violation of 18 U.S.C. § 1001(a)(1) and two counts of obstruction in violation of 18 U.S.C. § 1505 (Counts 1 and 4). Counts 1 and 3 were based on Safavian’s interviews with GSA inspector Rowe. Count 2 was based on Safavian’s request for the ethics opinion. And Counts 4 and 5 related to his letter to the Senate Committee.

At trial, Safavian testified that, in his view, Abramoff was "not doing business with GSA" because he was not exchanging property or services for money nor did he have a business relationship with GSA.

With regard to the conviction relating to the ethics opinion, the court held that the evidence submitted at trial was insufficient. The court reasoned that an ethics opinion is just an ethics opinion and a government employee seeking such an opinion may decide not to follow its advice. The court went on to explain that the government failed to identify a legal disclosure duty with regard to the opinion except by reference to some vague standards of conduct for government employees.

Significantly, the court also struck down the government's argument that "once one begins speaking when seeking government action or in response to questioning, one must disclose all relevant facts." The court held that section 1001 does not demand "that individuals choose between saying everything and saying nothing."

The court also held that the district court abused its discretion in denying Safavian the benefit of expert testimony on the subject of what "doing business" with GSA meant.  The appellate court said "doing business" has both an ordinary meaning and a GSA meaning and the jury should have been able to hear what Safavian's expert had to say about the GSA meaning.