The case of United States v. Isnadin has many in the Florida criminal defense community talking about the definition of entrapment. Here's the thrust. An undercover agent for ATF offered two appellants -- Jolens “Blunt” Cius and Kamensky Gustama -- a curious opportunity. Would they want to rob a stash house? If so, warned the agent, they better be prepared for battle. In the agent's words: "You got to **** rob them, bro."
Was that entrapment?
Cius, Gustama and Esnel Isnadin (a co-appellant) argued that they had been entrapped, and they appealed their case to Florida’s 11th Circuit on February 14, 2014 to challenge a lower court’s previous conviction.
Isnadin had been convicted on multiple criminal counts in March 2012, after he and the other men attempted to rob a stash house after chatting with an undercover Alcohol Tobacco & Firearms agent.
Isnadin’s Charges
Prosecutors charged Isnadin with conspiracy to commit an offense known as a Hobbs Act robbery as well as conspiracy to possess with intent to distribute five kilograms or more of cocaine; conspiracy to use and carry a firearm in relation to a violent crime; and one count of being a felon in possession of a firearm.
In March 2012, the District Court found Isnadin guilty of a reduced cocaine possession and intent to distribute charge as well as guilty of the other three charges listed above.
Isnadin Appeals Conviction
Isnadin and co-appellants challenged the ruling, claiming entrapment. The trio also challenged the court’s decision to instruct the jury to treat the “entrapment defense separately and individually as to each count.”
The United States Court of Appeals concluded that the District Court “did not abuse its discretion when it instructed the jury to consider entrapment separately as to each count” and also found that sufficient evidence supported the initial convictions.
Per court testimony, Isnadin had only been present on the last day of the situation in question. But the court believed that he fully intended to commit a crime using a firearm.
Do you need help constructing a thorough, strategic defense to Florida criminal charges? Connect with the Seltzer Law PA team now at 1-888-THE-DEFENSE (888-843-3333) to speak with someone immediately about your case for free and in confidence. There's no need to be overwhelmed or under-informed. We can help.
United States v. Isnadin: Undercover Agent Told Men "You Got to **** Rob Them, Bro" -- Was It Entrapment?
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Zeek Rewards Receiver Files Clawbacks Against Principals, Net Winners
The court appointed receiver tasked with recovering assets for the $600 million ZeekRewards Ponzi scheme has fired off the first salvo of clawback lawsuits seeking the return of nearly $300 million from company officers and investors fortunate enough to profit from the scheme. The Receiver, Kenneth D. Bell, filed two lawsuits in North Carolina federal court on Friday, February 28, 2014 - one lawsuit seeks the return of tens of millions of dollars from company insiders, such as Paul R. Burks and Dawn Wright-Olivares, while the second lawsuit asserts fraudulent transfer claims against not only the ten largest scheme "net winners," but also against a class of approximately 9,000 victims that received at least $1,000 from the scheme.
Insider Lawsuit
The first lawsuit names several key Zeek officers, including Paul R. Burks, Dawn Wright-Olivares, Danny Olivares, Roger Plyler, and Darryle Douglas. According to the complaint, each of the officers received at least $1 million from Zeek:
Paul R. Burks - At least $10 million
Dawn Wright-Olivares - $7.8 million
Danny Olivares - $3.1 million
Roger Plyler - $2.3 million
Darryle Douglas - $1.975 million
The 40-page complaint goes into excruciating detail and paints a picture of an intricate conspiracy between the defendants to perpetuate the appearance that Zeek Rewards was a highly-successful operation. While the operation was known for its consistent 1.6% - 1.8% daily returns, the complaint alleges that these percentages were nothing more than figures selected by company insiders with the goal of portraying a consistently profitable venture. Recognizing the crucial fact that the company needed to maintain its payment structure and schedule to avoid unwanted attention, Paragraph 83 recounts a text message from Dawn Wright-Olivares to her son, Danny, that
“[t]he fastest way to get charge [sic] as a Ponzi scheme is for distributors to claim they are not getting paid.”
The complaint asserts several counts, including fraudulent transfer claims, breach of fiduciary duty, conversion, unjust enrichment, and constructive trust. Additionally, the complaint seeks entry of an injunction preventing the defendants from dissipating their assets prior to entry of any judgment.
"Net Winners" Lawsuit
The second lawsuit brings "clawback" claims against not only the ten investors receiving the largest amount of profits, but also seeks establishment of a defendant class that each received at least $1,000 from the scheme. The lawsuit names the following individuals and entities as the top ten "net winners":
Todd Disner, in his individual capacity and as trustee for Kestrel Spendthrift Trust - $1.875 million;
Trudy Gilmond and Trudy Gilmond, LLC - $1.75 million;
Jerry Napier - $1.745 million;
Durant Brockett - $1.720 million;
Darren Miller - $1.635 million;
Rhonda Gates - $1.425 million;
Michael Van Leeuwen - $1.4 million;
David Sorrells - $1 million;
T. Le Mont Silver Sr and Global Internet Formula, Inc. - $1.717 million;
Aaron and Shara Andrews - At least $1 million;
Karen Silver - $600,000;
David and Mary Kettner - At least $930,000; and
Lori Jean Weber - $1.94 million.
As some will notice, several of the individually named "net winners" were involved with initial efforts to challenge the Receiver and SEC's authority in shutting down Zeek, claiming that "the SEC mislead (sic) the judge" in securing an emergency asset freeze, and even claiming that the SEC had admitted problems with the case (which were subsequently refuted here). Despite reportedly raising tens or even hundreds of thousands of dollars in victim donations, Zteambiz sent out a "final posting" in November 2013 clarifying that "As you know the goal was to assist the people of Zeek Rewards, and provide relevant information relating to the Zeek Receivership."
In addition, the complaint seeks to bring a class action lawsuit against a class of net winners that allegedly received more than $1,000 in false profits from the scheme. According to Bell, this class consists of at least 9,000 individuals living in the United States. Because the proceeding is a receivership, exclusive jurisdiction is vested in the North Carolina district where Zeek was located, and a class action against the net winners, rather than instituting 9,000 separate lawsuits, would not only be cost-effective but would also significantly lessen the strain of thousands of lawsuits being filed in the Court's docket. The class action would also prevent the possibility of competing determinations that could result in the case of separate actions.
The two complaints are below:
Insiders
Third Party
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eff.org: EFF Fights National Security Letter Demands on Behalf of Telecom, Internet Company
eff.org: EFF Fights National Security Letter Demands on Behalf of Telecom, Internet Company
Legal Briefings Still Under Seal After Government Demands for Secrecy
=> Read more!
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"Tsarnaev Defense Renews Request for "Taint Team" and Lifting of SAM's"
From TalkLeft: Dzhokhar Tsarnaev's defense lawyers have filed a motion (available here) renewing its request to lift the SAMs (special administrative measures) imposed by the Bureau of Prisons and to compel the Government to use a "taint team." The motion...
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An Easier Road to Recovery for the Wrongly Convicted
Fernando Bermudez spent 18 yearsin prison for a crime he did not commit.New York's Attorney General Eric Schneiderman recently published an op-ed piece in the Daily News touting new legislation designed to help the wrongly convicted collect compensation from New York State. According to Schneiderman, the Unjust Imprisonment Act would eliminate restrictions in state law that foreclose by people who were coerced into false confessions or who pleaded guilty to crimes they not commit. It would also increase the statute of limitations (the time to file an action) from the current two years to three.Schneiderman's recognition that innocent people do plead guilty or confess to crimes they did not commit is remarkably forward thinking. Criminal defense and civil rights attorneys are all too familiar with people coerced into false confessions, or those who take guilty pleas that come with time served sentences because the alternative is to remain in jail for months or years fighting the charge.Slowly but surely it is becoming evident that the criminal justice system is deeply flawed and that convictions of innocent people are inevitable. These are sometimes the product of an assembly line that offers grossly imperfect representation to the poor, high-pressure tactics on those that can't afford bail, and a system that is overwhelmed by a staggering case load. Other times, the wrongly prosecuted are the victims of lying officers and prosecutors who have lost their way, having forgotten their primary obligation is to do justice, not to obtain convictions. That New York's top prosecutor recognizes the need to provide great protection for the victims of our fractured system of criminal justice is a surprising but positive development.
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The False Claims Act Is Not a Remedy for Technical Regulatory Violations
Dear Readers:I recently came across another interesting example of a court refusing to permit the False Claims Act ("FCA") to be used as remedy for a technical regulatory violation that was unrelated to a claim for payment submitted to the government: US ex rel. Rostholder et al. v. Omnicare International, et al., (4th Cir., February 21, 2014).In Omnicare, the 4th Circuit sustained the lower court's dismissal of False Claims Act claims due to the complaint's failure "to allege that the defendants made a false statement or acted with the necessary scienter." The Relator had alleged that the defendant, a drug manufacturer, violated a series of Food and Drug Administration ("FDA") safety regulations relating to the packaging of penicillin together with other drugs, the result of which caused the drugs to be "adulterated." Since federal law prohibits adulterated drugs from being sold in interstate commerce, Relator alleged that such mispacked drugs were no longer eligible for reimbursement by Medicare or Medicaid. For a drug to be eligible for reimbursement by Medicare and Medicaid, the FDA must have "approved [it]for safety and effectiveness" when it was submitted as a new drug.Essentially, the Court found that the Relator did not state an FCA claim because complying with FDA safety regulations for a previously approved drug is not an express condition of reimbursement by Medicare or Medicaid. That is, defendants did not have to expressly certify compliance with the FDA in order to obtain payment for such a mispacked drug under Medicare and Medicaid. As a result, Relator was unable to identify "any false statement or other fraudulent misrepresentation that Omnicare made to the government," i.e., there was no "false claim" for payment under the FCA. The Court explained: "FCA liability based on a false certification to the government will lie only if compliance with the statues or regulations was a prerequisite to gaining a benefit, and the defendant affirmatively certified such compliance."The Court observed that the FCA was not meant as a mechanism to promote "regulatory compliance," especially when in the case of the FDA, the government had established a "very remedial process" to enforce FDA regulations. The FDA's "significant remedial powers . . . buttresses our conclusion that Congress did not intend that the FCA be used as regulatory-compliance mechanism in the absence of a false statement or fraudulent conducted directed at the government."Interestingly, the Court went further and found not only had the Relator not alleged a false statement or fraudulent conduct, but it also found as a matter of law that the Relator had not "plausibly" alleged that Omnicare knowingly submitted a false claim to the government. Since the Medicare and Medicaid statutes did not expressly prohibit reimbursement for "drugs packed in violation" of federal law, the Court essentially found that Omnicare could not have known that it was submitting a false claim.While a welcome result, the Court made an easy call here. There is simply no connection between a claim for reimbursement under Medicare Part D and these technical FDA violations. A. Brian AlbrittonMarch 3, 2014
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Supreme Court Narrows the Scope of SLUSA Preemption, Green-Lighting State Law Class Action Claims Alleging Ponzi Scheme
On February 26, 2014, the U. S. Supreme Court (“the Court”) held that the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) did not preclude Stanford Ponzi scheme plaintiffs’ state-law class action claims because the claims did not involve covered Read More
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Lake Forest man sentenced to life without parole in Laguna Beach murder trial
When you're charged with a crime, don't assume that police and prosecutors see it as a game. They don't see you as some patsy that they can stick the crime on. They believe that you are a criminal and will do everything in their power to find evidence of your guilt and have you convicted in a court of law. That's their job. But they don't always get it right. Admittedly, there are corrupt cops and prosecutors out there. But even those who are on the level sometimes make mistakes. In their zeal for justice honest police and prosecutors can take a case to trial with insufficient evidence or before exculpatory evidence has been unearthed.
That's why our constitution gives everybody who's been accused of a crime the right to confront their accusers in court and sets strict rules for the ways in which law enforcement can gather and present evidence against the accused. Because we want to be as certain as possible that someone is guilty of a crime before they are punished for it.
Remember that in the eyes of the court you remain innocent until proven guilty. Having a strong legal advocate on your side can help you through \out the legal process. An experienced murder defense lawyer can help you at pre-trail hearings, advise you on your plea, argue in your defense at trial, and for more lenient sentencing if you are convicted.
At the Law Offices of Michael L. Guisti in Orange County, our criminal defense attorneys are passionate about getting justice for our clients. They have the training and experience needed to represent you in both state and federal court and help you present your side of the case to a jury. They have the knowledge and expertise you'll need to defend yourself against criminal charges.
Our four Orange County offices are conveniently located near Superior Court districts and are staffed with legal professionals ready to defend you. We'll stand up for your constitutional rights and do our best to make sure that your interests are represented in court. Call (888) 478-8999 for a free consultation.
source: http://www.ocregister.com/articles/dragna-603860-nicholson-bravo.html
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Lake County Criminal Defense Attorney :: Clermont Child Sex Sting Nabs 3 Disney World Employees, 19 Others
A weeklong online undercover operation to bust child predators looking to have sex with children in Florida ended in the arrests of 22 people, including three Disney World employees, according to authorities. Last month, undercover deputies from the Lake County cyber-crimes unit in central Florida led the sting operation, dubbed “Operation Be Mine,” and lured suspects by […]
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Shniderman on Neuroscience, the Insanity Defense and Sentencing Mitigation
Adam B. Shniderman (University of California, Irvine - Department of Criminology, Law and Society) has posted No Such Thing as a Sure Thing: Neuroscience, The Insanity Defense & Sentencing Mitigation (The Jury Expert Vol. 26, No. 1, pp. 11-14, 2014)...
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Buffalo traffic lights
The claims on which the instant motions are based developed from an automobile accident, when a car driven by the accused struck a vehicle operated by the victim. His wife was a passenger in the vehicle. She died as a...
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Adegbile Nomination in Trouble
Wesley Lowery has this post at The Fix, the WaPo's political blog, on the nomination of Debo Adegbile to head the USDoJ Civil Rights Division. It is titled, "Remember Mumia Abu-Jamal? He may derail Obama's pick for top civil rights...
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Kaley Opinion, Based on Legal Fiction, is Harmful to Defendants and Lawyers
In Kaley v. United States (12-464, decided February 25, 2014), the Supreme Court by a 6-3 vote extended the rulings of United States v. Monsanto, 491 U.S. 600 (1989) and Caplin & Drysdale v. United States, 491 U.S. 617 (1989)...
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Car Chase Argument
The US Supreme Court heard oral argument today in yet another case where the family of a person killed by police while engaging in extremely reckless, life-endangering conduct claims it is the police's fault rather than the deceased's, and therefore...
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Section 580 of the Penal Law...cont
The gravamen of the offense of conspiracy is the unlawful combination and not the successful execution of the plan. The offense is complete upon proof of the unlawful agreement and of an over act done to affect the object thereof by either of the parties to the agreement. The conspiracy is an independent crime wholly separate and distinct from the grand larceny which may have been the purpose of the conspiracy and which may or may not have come to a successful conclusion as a result of the conspiracy.
If the defendant and his co-defendant entered into an agreement pursuant to which this defendant exaggerated his bill and his medical report with the intent to deprive and defraud the insurance company of its money in an amount that would constitute a felony, and to appropriate the same to the use of either of the defendants or to aid and abet the co-defendant or others to do so, and the defendant wrote and issued such bill and statement, the conspiracy had been committed and was complete.
There is no legal requirement that the conspiracy result in a completed crime based upon the terms of the conspiracy. Even if it could be successfully established that the conspiracy failed of consummation because the substantive crime could not be or was not completed, the crime of conspiracy could still be complete andthe defendant and his co-defendant could still be guilty of a violation of Section 580 of the Penal Law.
The defendant concedes that the adjuster 'took into consideration the bill allegedly submitted in the amount of $95.00 and the medical report purportedly submitted by the defendant. It was this report which brought into the picture the existence of a contusion of the chest, a sprain of the lumbo-sacral area and an aggravation of an unstable and weak back. He contends however that since the insurance company caused the claimant to be examined by its own physician it could not have relied upon or been misled by his (the moving defendant's) medical report in settling the claim for $850.00. It does not require great introspection to realize that an insurance company settles a claim not only upon the basis of its own doctor's report, which in many cases is entirely negative, but also upon the scope of its possible liability as it is envisaged and set forth in the claimed personal injuries. In any event that is a contention to be addressed to the trier of the fact.
Whether, therefore, there was in fact any illegal conspiracy between the defendants to defraud and deprive the insurance company of its funds in an amount which would constitute a felony; whether the medical report was in fact fraudulent, and whether the insurance company relied thereon in making payment on the personal injury aspect of the claim are all issues of fact which may not be flung off or decided on this application.
Accordingly, the court held that the motion is in all respects denied. Short form order signed and entered.
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Might Obamacare end up reducing prison populations "more than any reform in a generation"?
The question in the title of this post is drawn from the headline of this new Newsweek article that purports to explain "How Obamacare May Lower the Prison Population More Than Any Reform in a Generation." Here are a few...
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Wexler on Mainstreaming Therapeutic Jurisprudence
David B. Wexler (University of Puerto Rico - School of Law) has posted The International and Interdisciplinary Project to Mainstream Therapeutic Jurisprudence (TJ) in Criminal Courts: An Update, a Law School Component, and an Invitation (Alaska Journal of Dispute Resolution...
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Supreme Court, Queens County
A Queens Criminal Lawyer said that this is an appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 11, 1982, convicting him of criminal possession of a weapon in the third degree, after a nonjury...
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Could It Happen in Your Family?
Tomorrow at 5 pm I’ll be doing an interview with Jill Egizii who is the host of her own show on blogtalkradio.com out of Springfield Illinois. Jill is a local politician and advocate for children with a special interest in parental alienation. She’ll be discussing a story out of California involving pop radio icon Casey […]
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New York Public Health Law § 2805-d...cont
The court in deciding the case said that, on a motion for summary judgment pursuant to CPLR 3212, the criminal proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence...
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More Pages to Explore .....
