Boilerplate Requirements for Ostrich Instruction
USA v. Fabio Carani, 06-2007. Fabio Carani was charged with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and two counts of knowingly receiving child pornography in the form of certain computer files in violation of 18 U.S.C. § 2252A(a)(2)(A). A jury found Carani guilty of possession, but...
Harmless Error Analysis Applies to Sentencing Factors
USA v. Kevin Williams, 05-4405. Kevin Williams was convicted of conspiracy to violate 21 U.S.C. § 846 by knowingly and intentionally possessing and distributing "cocaine and cocaine base, commonly known as ‘crack,’ . . . heroin and marijuana." In finding him guilty, the jury made no factual findings about either drug type or...
Dangerous Weapon Enhancement for Itty Bitty Pocket Knife Reversed
USA v. Darryl Franklin, 06-3462. Darryl Franklin pleaded guilty to two counts of using a telephone in the commission of a drug crime, in violation of 21 U.S.C. § 843(b). The district court sentenced Franklin to 84 months of imprisonment applying the dangerous weapon enhancement under Sentencing Guideline § 2D1.1(b)(1). Franklin appeals the...
Georgia Sweet Georgia: 7th Circuit Finds Well Meaning Employee Innocent
USA v. Georgia Thompson, 06-3676. In 2005 Wisconsin selected Adelman Travel Group as its travel agent for about 40% of its annual travel budget of $75 million. The selection came after an elaborate process presided over by Georgia Thompson, a section chief in the state’s Bureau of Procurement. Statutes and regulations require...
Departures Are Obsolete – Boilerplate Language for Sentencing Memos
USA v. Demetris Simmons, 06-3894. Demetris Simmons was convicted following a jury trial of dealing in firearms without a license and sentenced to 56 months’ imprisonment. Simmons appealed the calculation of his sentence under the United States Sentencing Guidelines.
In this appeal, Simmons argues that the district court miscalculated his...
The Lawyer Made Me Do It Is Not A Defense
USA V. James P. Roti, 06-3192. Saddled with a judgment for more than $400,000 on account of a guarantee of his small corporation’s debts, James Roti decided to hide his assets from creditors. He has been convicted of bankruptcy fraud, see 18 U.S.C. §157, and concealing assets from the bankruptcy trustee, see 18...
Brady Violation By USA: Evidence Must Be Material and Have Potential to Change Verdict
USA v. Daryl L. Wilson, Stevie Thomas, Donnell L. Cohn, Sammy Armstead, and Tyree Collins. 04-1594. This multi-defendant criminal appeal concerns a drug conspiracy at a public housing complex in Chicago. The five defendants were members of the Gangster Disciples ("GD") street gang, which organized all drug sales at a building at...
When Does “Transportation” Begin in a Prosecution Under the Federal Kidnapping Act
USA v. Mike Singh and Paul Busara, Nos. 05-4509 & 05-4575. The intriguing issue in this case is when does "transportation" begin in a prosecution under the Federal Kidnapping Act, 18 U.S.C. § 1201(a). A jury found Singh guilty on all three counts and Busara entered a guilty plea to counts 2...
Government’s Failure to Call C/I Does Not Lead to Missing Witness Instruction
USA v. Clarence Hendrix, 05-3644. A jury convicted defendant Clarence Hendrix one count of distributing at least fifty grams of crack cocaine. The district court sentenced Hendrix to 240 months of imprisonment, a mandatory minimum based on his prior felony drug conviction.
The conviction arose out of a drug transaction...
Loss Calculation is Clearly Erroneous
U.S. v. Krishnaswami Sriram 05-2752. The defendant, a cardiologist who had billed Medicare some $17 million over a five-year period, pleaded guilty to health care fraud and tax fraud. The defendant admitted having received "substantial payments" for fraudulent claims (estimated in the presentence investigation report to be between $5 and $10 million) submitted...