Federal Criminal Lawyer Blog

Georgia Criminal Defense Lawyer Acquitted of Money Laundering, Drug Conspiracy, and Attempted Bribery

November 19, 2009 | by Finch McCranie, LLP

Yesterday a jury found Georgia criminal defense attorney J. Mark Shelnutt not guilty on all counts. He was acquitted of money laundering, drug conspiracy, and attempted bribery.

Three weeks ago, the Eleventh Circuit Court of Appeals, which hears appeals from cases in Georgia, Florida, and Alabama, decided U.S. v. Velez in favor of the defendant. That case involved a money laundering charge against a criminal defense attorney under 18 U.S.C. § 1957. Shelnutt was prosecuted under 18 U.S.C. § 1956, which required federal prosecutors to attempt to prove that ill-gotten gains were used for certain prohibited purposes, including facilitating underlying criminal activity, tax evasion, or evading money laundering statutes. The prosecution was unable to prove its case.

More information in the Shelnutt case can be found here.

Eleventh Circuit Remands Livesay for Resentencing… Again

November 17, 2009 | by Finch McCranie, LLP

Yesterday, the Eleventh Circuit Court of Appeals issued its fourth opinion regarding the federal sentencing of Kenneth Livesay, former chief information officer for HealthSouth Corporation. The Court has insisted that Livesay must serve time in prison for his role in the accounting fraud at HealthSouth. We are disappointed in the Court’s decision, because in our view, the sentence was supported by the Supreme Court’s decision in Gall v. United States.

Prior to 1999, Livesay was an assistant controller for HealthSouth who played a direct role in the accounting fraud that came to light following Sarbanes-Oxley in 2003. In 1999, however, Livesay decided that he could no longer stomach the fraud, so he transferred to the IT department, where he became CIO. Before the fraud was discovered, he was asked repeatedly to return to the accounting department, but he refused.

In 2004, Livesay pleaded guilty to conspiracy to commit wire fraud, securities fraud, and falsifying records; falsely certifying financial information filed with the SEC; and a forfeiture court. Pursuant to his plea agreement, the government agreed to recommend a reduction in his offense level for acceptance of responsibility, a sentence at the low end of the guidelines, and a downward departure in exchange for Livesay’s cooperation with the government.

Federal Sentencing Guidelines Amendments Part III: Alternative Sanctions to Prison

November 13, 2009 | by Finch McCranie, LLP

Ed. Note: Last week, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. Once a week this month, we will post an analysis of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

The Sentencing Commission has made it clear that judges now have more specific authority to impose sentencing options other than simply putting the defendant in prison. The Commission added intermittent confinement as a sentencing option, as well as adding community service as a potential mandatory condition of probation and reaffirming that community confinement is a possible condition of supervised release.

Intermittent Confinement

Eleventh Circuit Holds Crime of Eluding a Police Officer at High Speed or with Wanton Disregard for Safety is a Crime of Violence in the Same Category as Burglary and Arson

November 10, 2009 | by Finch McCranie, LLP

Last week, the Eleventh Circuit decided U.S. v. Harris. Anthony Harris was charged in federal court with being a felon in possession of a firearm. Mr. Harris’s felony conviction was under Florida Statute § 316.1935, which makes it a second degree felony to flee or attempt to elude a police officer while driving at a high speed or in any manner which demonstrates a wanton disregard for the safety of persons or property.

Mr. Harris fled from police while driving between 70 and 80 miles per hour, eventually crashing his car into a tree and injuring his passenger. The Eleventh Circuit held that such a crime qualifies as a “crime of violence” along the same lines as burglary and arson.

As we mentioned in this post two weeks ago, the law regarding “violent felonies” under the Armed Career Criminal Act (ACCA) has been in a state of flux following the Supreme Court decisions in Chambers, Begay, and James in the past couple of years. We discussed Chambers in this post. Courts have looked to those decisions to define “crime of violence” under the Sentencing Guidelines, as well, because the definitions for both phrases are virtually identical.

Federal Sentencing Guidelines Amendments Part II: Economic Crimes

November 5, 2009 | by Finch McCranie, LLP

Ed. Note: This week, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. Once a week this month, we will post an analysis of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

Identity Theft Amendments

Congress directed the Sentencing Commission to increase the penalties under several of the identity theft statutes in Title 18. In response to that directive, the Commission added a new enhancement and a new upward departure provision, as well as expanding the definition of “victim” and the factors to be considered in calculating the amount of loss.

Federal Sentencing Guidelines Amendments Part I: Sex Crimes

October 29, 2009 | by Finch McCranie, LLP

Ed. Note: Next week, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines will go into effect. Once a week for the next month, we will post an analysis of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

The U.S. Sentencing Commission has changed the federal Sentencing Guidelines in a number of ways relating to sex crimes. These changes will go into effect this Sunday, November 1, 2009. The amendments address a circuit split regarding an enhancement for undue influence of a minor, resulting in a positive change in Eleventh Circuit law, as well as changes to the child pornography and human trafficking guidelines.

Undue Influence Amendments

Eleventh Circuit Affirms Dismissal of Money Laundering Charges Against Attorney

October 28, 2009 | by Finch McCranie, LLP

In this post earlier this month, we discussed U.S. v. Velez, a federal criminal case in which an attorney, Ben Kuehne, was charged with money laundering based upon payments of legal fees. On Monday, the Eleventh Circuit affirmed the Southern District of Florida’s dismissal of the money laundering charges.

Fabio Ochoa-Vasquez was extradited to the U.S. in 2001 to faces charges for cocaine smuggling. His criminal defense team hired Kuehne to investigate the source of the money Ochoa would use to pay their legal fees and verify that it was not criminally derived property. Kuehne drafted six opinion letters advising that the funds were clean. The money to pay the legal fees were wired to his trust account, then he wired them, minus his retainer, to Ochoa’s defense team.

The government alleged that Kuehne and his co-defendants knew that the funds were tainted and supported the opinion letters with falsified documents. They were charged with money laundering in violation of 18 U.S.C. § 1957. However, § 1957(f)(1) excludes “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution” from the scope of the money laundering statute.

Eleventh Circuit Holds “Walkaway” Escape is Not a Violent Felony under Federal Armed Career Criminal Act

October 26, 2009 | by Finch McCranie, LLP

Earlier this year, we discussed the United States Supreme Court’s decision in Chambers v. U.S. in this post. In that case, the Court held that a conviction for failure to report to a penal institution falls outside the scope of the Armed Career Criminal Act’s definition of “violent felony.” In light of that decision, the Eleventh Circuit held today in U.S. v. Lee that non-violent walkaway escapes from unsecured custody also do not qualify as “violent felonies” under the ACCA. This decision is a reversal of prior Eleventh Circuit law holding that all escapes are violent felonies for the purposes of the ACCA.

Shawntrail Lee was convicted of felony possession of a firearm in the Southern District of Georgia. He had three prior convictions: eluding police officers in the second degree, conspiracy to commit armed robbery, and escape based upon leaving a halfway house. The district court granted Lee a downward variance and sentenced him to the mandatory minimum 180 months (15 years) required by the ACCA.

Conviction for being a felon in possession of a firearm ordinarily carries a mandatory minimum sentence of 10 years in prison. The ACCA increases that minimum to 15 years where the defendant has three prior “violent felony” or serious drug convictions.

Eleventh Circuit Takes Government’s Side in Federal Criminal Circuit Split Regarding Section 924(c)

September 29, 2009 | by Finch McCranie, LLP

On September 15, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided a federal drug and firearm case, U.S. v. Segarra. Drug laws and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The drug minimums are often longer than the minimum called for by § 924(c). In Segarra the Eleventh Circuit was confronted with what is called the “except” clause in § 924(c). Despite the language in this clause, the Eleventh Circuit ruled for the government, and said that the drug and § 924(c) minimum sentences must run consecutively with one another, instead of having the shorter gun sentence run concurrently with the drug penalty.

Mr. Segarra pleaded guilty to possession with intent to distribute crack, as well as possession of a firearm in furtherance of a drug-trafficking offense, in violation of § 924(c). Generally, § 924(c) provides for a minimum sentence of five years for possession of a gun during any crime of violence or drug trafficking crime, in addition to the punishment for the underlying crime. However, the section begins with the following exception: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law…”

Mr. Segarra, who was sentenced to the minimum sentence of ten years for his drug crime and an additional five years for the firearm, argued on appeal that his five-year minimum consecutive sentence for the firearm was prohibited by the “except” clause because the underlying offense carried a greater mandatory minimum. The Second Circuit Court of Appeals followed this interpretation in U.S. v. Williams, reasoning that the plain language of the statute forbids the mandatory minimum for the firearm from applying where another provision of law requires a higher minimum sentence.

Federal Appeal Regarding Funds Needed to Hire Criminal Defense Lawyers

September 17, 2009 | by Finch McCranie, LLP

Last month, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, and hears appeals from both civil and criminal federal cases, decided United States v. Kaley, a case regarding due process requirements for protective orders over property defendants wish to use to hire criminal defense counsel of their choice.

In Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. The government got that injunction ex parte, without a hearing in which the Kaleys could participate.

The property that the government enjoined was the property that the Kaleys planned on using to hire their criminal defense lawyers. Their legal fees were estimated at $500,000. To pay that amount, the Kaleys had gotten a home equity line of credit and used the proceeds to buy a certificate of deposit. The government claimed that those assets were “involved in” the Kaleys’ commission of their alleged crimes and sought to forfeit the property.