Friday, October 04, 2013

All in

AFPD Jan Smith made as big a gamble as I've ever seen in a trial, and it paid off. A Hobbs Act case, where the defendant testified, both sides got 30 minutes for closing. After the government's initial closing argument, Jan waived the defense's closing. This meant that the government could not get back up for its rebuttal.

The jury came back not guilty.

Wow, what an incredible gambit!

I think defense lawyers must take risks in trial to win. But this takes the cake. Hats off to Jan Smith for having the guts to do this.

In 11th Circuit news, Judge Carnes is talking structuring.  And he reversed a defendant's conviction in U.S. v. Lang.  Here's the conclusion:
In this case, each count of the indictment charges as a separate structuring crime a currency transaction involving a single check. Each check alleged is for an amount less than $10,000, and no combination of two or more checks is alleged in any count. See App. A. A cash transaction involving a single check in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement, and that requirement does not apply to a single cash transaction below the threshold. The government’s theory (at least its current theory) is that Lang received from one source 21 payments exceeding $10,000 over a period of eight months, he had those larger payments broken into multiple checks each of which was less than $10,000, and he then cashed those checks separately in a way that evaded the reporting requirements. That is all well and good, but it is not what is alleged in the indictment. Instead of a series of counts each alleging a payment or payments totaling more than $10,000 that were structured into checks of smaller amounts, which were then cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. That is not possible. When cashed checks come to the structuring dance, it takes at least two to tango.
For these reasons, we conclude that the indictment is “so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” Pena, 684 F.3d at 1147 (quotation marks omitted). This is not a mere multiplicity situation where some counts may be upheld if others are vacated. See United States v. Bonavia, 927 F.2d 565, 571 (11th Cir. 1991); United States v. Mastrangelo, 733 F.2d 793, 802 (11th Cir. 1984). Where no count in the indictment charges a crime, the defendant is entitled to have the judgment vacated and the case remanded with instructions that the indictment be dismissed.


Rumpole said...

Last lawyer I saw do that was Eddie O'Donnell SR defending MDOD Homicide sergeant Ted McArthur (a real pig) who was charged with murdering his wife. ASA's were Susan Dannelly and Reid Ruben, circa 1990's.

The gamble DID NOT payoff.

Anonymous said...

You're on a roll with pretty good -- and S.D. Fla.-relevant -- posts, DOM. Keep it up!

Anonymous said...

Doesn't Rumpole have his own bloog? Jeez.

despicable you said...

Yeah he does but you "don't read" his blog, right?

Bob Becerra said...

I don't know if I would have the guts to waive a closing. Glad it worked out for AFPD Smith, otherwise we would be talking about an upcoming 2255.

Anonymous said...

Did depriving the Government of rebuttal closing really make the difference? I find that very hard to believe.